The Lawyers Weekly - June 4, 2010

Moses
Continued From Page 1

under provincial jurisdiction that also have impacts in areas of federal jurisdiction, such as fisheries and navigable waters,” suggested Jean-Sébastien Clément of Montreal’s Gowlings, whose co-counsel were Robert Main-ville (since appointed to the Federal Court), and Henry S. Brown of Gowlings’ Ottawa office.

Brown told The Lawyers
Weekly the decision marks the
first time the Supreme Court
has explicitly affirmed the
widely held view that the James
Bay Treaty has constitutional
status under s. 35( 1) of the Con-
stitution Act, 1982.

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professor Bryan Schwartz, counsel for the intervener Assembly of First Nations (AFN), told The Lawyers Weekly the majority and minority opinions divide over how to balance the public’s interests in satisfactory environmental reviews with the avoidance of the unnecessary delays, overlap, duplication and expense of multiple reviews. “Those tensions will resolved differently in different cases,” Schwartz predicted.

Noting he was not speaking for his client, Schwartz said both the majority and minority give some guidance on how to approach, and interpret, modern land claims agreements. The majority said modern treaties are generally meticulously negotiated, with the assistance of legal counsel, by well-resourced parties. This is a far cry from the situation that prevailed for older treaties.

Justice Binnie emphasized that modern comprehensive treaties are analogous to contracts, and therefore close attention must be paid to a particular treaty’s terms and structure.

Schwartz emphasized, however, that not all modern treaties are created in ideal circumstances. He pointed, for example, to the negotiation of the much criticized 1977 Manitoba Northern Flood Agreement which was unclear and sparked years of litigation. “You have to look at all the circumstances,” he suggested.

Counsel for the intervener
Saskatchewan government,
Mitch McAdam of Regina, told
The Lawyers Weekly the
Supreme Court did not deal
with the province’s novel and
far-reaching argument that the
federal government’s power over
fisheries — which underpins
much of its environmental over-
sight of mines and other matters
of provincial jurisdiction — does
not extend to provincially owned
lakebeds or riverbeds. That
would encompass about 99 per
cent of Saskatchewan’s waters
“I think it’s an issue that the
court is inevitably going to have
to look at,” predicted McAdam.

He suggested as well that the majority’s determination that the 1975 James Bay Treaty contemplated the future application of the CEAA—even though the latter wasn’t created until 1992 — illustrates that lawyers must be truly forward-thinking when engaged in treaty-making.

“If you are a lawyer involved in negotiating these sorts of agreements you really can’t just look at the legal situation as it exists at the time. You must anticipate that those laws can change into the future,” McAdam advised.

In A.G. Quebec v. Moses the nine judges disagreed over the meaning of a few sentences governing environmental impact assessments contained in the 450-page James Bay and Northern Quebec Agreement. The comprehensive 1975 treaty signed by Canada and Quebec with 12,000 Cree and Inuit was meant to fulfill obligations assumed by Quebec when that province received more than 1 million square kilometres of land and lakes from Canada’s northern territories in 1898 and 1912.

The appellant Attorney General of Quebec contended that no federal assessment of the proposed vanadium mine is necessary since the treaty— which is paramount over inconsistent federal or provincial laws— mandates only a provincial environmental assessment if the regulated subject falls into an area of exclusive provincial jurisdiction under the Constitution—in this case natural resources.

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That position was accepted by the court’s two francophone Quebecers, Justices Louis LeBel and Marie Deschamps, whose joint dissent was backed by Justices Rosalie Abella and Louise Charron.

However Justice Binnie and the rest of the court ruled that the treaty itself contemplates the application of federal fisheries licensing and environmental reviews mandated by federal laws of general application—in this case the Fisheries Act and the CEEA.

Since those federal laws are neither inconsistent with, nor excluded by, the treaty, the mine proposal must be comprehensively assessed under the CEEA because of the significant potential impact on fisheries, an area constitutionally reserved to the federal government, the majority held.

“Nothing in the treaty relieves the [mine] proponent from compliance with the ordinary procedures governing the issuance of the necessary [federal] authorization or permits,” Justice Binnie wrote.

“The federal laws, the provincial
laws and the James Bay Treaty
fit comfortably together, and
each should be allowed to oper-
ate within its assigned field of
jurisdiction.”
The majority pointed to s.
22. 7. 5, which deals with environ-
mental assessments. It stipu-
lates that nothing in that section
“shall be construed as imposing
an impact assessment review
procedure by the federal govern-
ment unless required by federal
law or regulation.”
Reasoned Justice Binnie, “far
from excluding a separate fed-
eral obligation external to the
treaty, the treaty thus contem-
plates the obligation of compli-
ance with federal law whether in
existence at the time of the nego-
tiations (e.g. s. 31 of the Fisheries
Act, as it then was, now s. 35( 2))
or impact assessments subse-
quently imposed by federal law
(e.g. the CEAA). This is the pos-
ition of the Cree respondents,
and I agree with it.”
By contrast, Quebec urged
that the federal Fisheries Minis-
ter was bound to issue a fish-
eries permit, once the mining
project was cleared by the prov-
incial administrator appointed
under to the treaty oversee the
environmental review, or was
approved by the Quebec Cabinet
(which the treaty empowers to
override the provincial adminis-
trator’s decision.)
In their dissent, Justices
LeBel and Deschamps reasoned
that “in view of the parties’
express intention that the agree-
ment constitute a comprehen-
sive governance scheme for the
entire territory, that it provides
for only one environmental
assessment as the general rule
and that it be paramount over
all other laws of general applica-
tion which are inconsistent with
it, and of the fact that no other
government assessment process
existed at the time [the agree-
ment was signed] and that no
parallel process was provided
for in the agreement itself, s.
22. 7. 5 cannot be interpreted as
triggering a separate federal
environmental assessment of
the project under the CEAA.”
The minority also down-
played the significance of s.
22. 7. 5, which they described as a
“transitional provision” defining
how laws applied between the
signing of the treaty and its
coming into force.

According to Justice Binnie, that view amounts to rewriting the treaty. “The court ought to do the parties the courtesy of respecting the rights and obligations in the terms they agreed to,” he said. ;