Quebec v. Moses: Canadian Environmental Assessment Act Applies on James Bay Treaty Land

Bulletin - Quebec v. Moses: Canadian Environmental Assessment Act Applies on James Bay Treaty Land

The Supreme Court of Canada recently ruled that a mining project located in territory covered by the James Bay and Northern Quebec Agreement (Agreement) must be reviewed under the Canadian Environmental Assessment Act (CEAA) before Fisheries and Oceans Canada (DFO) can issue an authorization for the destruction of fish habitat under s. 35(2) of the federal Fisheries Act. This is the first Supreme Court decision interpreting the Agreement as a treaty under s. 35 of the Constitution Act and it will have a lasting impact on the interpretation of modern treaties with Aboriginal Peoples in Quebec and elsewhere in Canada.

Background
The subject of the appeal was a proposed vanadium mine in the vicinity of Chibougamau, Quebec (the Project). The Project will involve disruptions to watercourses and lakes in the area, as well as construction of tailings ponds, all of which will result in the harmful alteration of fish habitat. Accordingly, the Project requires a permit under the Fisheries Act before it can proceed. The issue on appeal was whether such a permit would be issued by DFO automatically, following a provincial environmental review process mandated under the Agreement, or whether a separate federal CEAA process would be required. The Court upheld the latter course: the Agreement does not override the CEAA.

The Agreement is a sophisticated, modern aboriginal land claims treaty entered into by James Bay Cree and Inuit communities, the federal government and the government of Quebec in 1975. The Agreement contains provisions for social and environmental impact assessments on treaty lands. The Project is located on lands classified under the Agreement as Category III. Under the Agreement, the Cree have the right to be consulted and to provide input on projects on Category III lands, but do not have a veto right.

The Agreement provides a process for determining whether a proposed project falls under federal or provincial jurisdiction. In this case, all sides agreed that the Project generally falls under provincial jurisdiction. The Agreement sets out a process for a committee to study the project and make a recommendation to a provincial treaty administrator. The administrator makes a recommendation to the Quebec Cabinet, which can accept or overrule the recommendation.