On October 18, 2008, the Supreme Court of Canada granted leave to appeal of a decision of the Quebec Court of Appeal in Attorney General of Quebec v. Grand Chief Dr. Ted Moses et al.
The case involves issues relating to the applicability of federal environmental impact assessment legislation in the James Bay and Northern Quebec Region of Quebec, where an environmental impact assessment process already exists under the James Bay and Northern Quebec Agreement (JBNQA). The JBNQA is a treaty between the Government of Canada, the Government of Quebec, and the Cree and Inuit of Northern Quebec.
The Quebec Court of Appeal held that the Canadian Environmental Assessment Act (“CEAA”), could trigger an environmental impact assessment (EIA) on JBNQA territory. However, once triggered, the project was subject to the JBNQA EIA process and not the CEAA process.
The project in issue was the proposed Mackenzie Bay International vanadium mine at Lake Doré, in the vicinity of Chibougamou, Quebec. The case is tentatively scheduled to be heard by the Supreme Court of Canada in June, 2009.
In Quebec, certain projects require that an EIA process be followed before certain approvals required for a project can be granted. Because the federal government and the provinces share jurisdiction over issues relating to the environment, EIA processes exist at both the federal and provincial levels.
Under Quebec legislation, the EIA process is established pursuant to the Quebec Environment Quality Act whereas the federal process is established pursuant to CEAA. The latter is triggered when the federal government either: (i) is a proponent of a project; (ii) provides financial assistance to the project to allow the project to proceed; (iii) sells, leases or otherwise disposes of federal lands in order to allow the project to proceed; or (iv) must issue certain permits or authorizations that are set out in a regulation.
In Northern Quebec, the issue of which EIA process applies becomes slightly more complex due to the parameters of the JBNQA.
The JBNQA establishes a specific environmental and social protection regime that applies to the territory covered by the agreement. Under this regime, the EIA process will differ depending on whether the project is of federal or provincial legislative jurisdiction. A development project may be subject to an EIA process conducted by either a provincial committee, a federal committee or, in exceptional circumstances, a joint panel.
The EIA requirements of the JBNQA have been incorporated into Quebec Law through Chapter 2 of the Environment Quality Act.
Given the project’s potential impact to fish habitat – a federal matter - a Permit for the harmful alteration, disruption or destruction of fish habitat (HADD Permit) was required pursuant to Section 35(2) of the federal Fisheries Act. Generally, a HADD Permit requirement triggers the applicability of CEAA and triggers the requirement for an EIA.
The main issue was to determine whether the project, indeed, triggered a federal EIA on JBNQA territory. If so, the Court was required to determine which of the EIA processes applied to the vanadium mine project.
In order to determine which – or both – of the EIA processes were required, further consideration needed to be applied to the nature of the project and/or the impact on federal matters.
Position of the Parties
The parties involved in the case were the Cree, the mine developer, the Attorney General of Canada and the Attorney General of Quebec. All parties agreed that the mining project falls within provincial jurisdiction and that the provincial EIA under the JBNQA applies. However, both attorney generals and Cree disagree on the issue of whether the project also requires a federal EIA.
- The Attorney General of Canada believes the project should be subject to a second EIA under the CEAA;
- The Cree are of the view that the project should be subject to both a provincial and federal EIA under the JBNQA because the project, which is of a provincial nature, has repercussions on a matter falling under federal jurisdiction; and
- The Attorney General of Quebec argued that the project should only be subject to a provincial EIA under the JBNQA (the view that was adopted by the Quebec Superior Court).
The Judgment of the Quebec Superior Court
The Superior Court decided that CEAA did not apply to the territory covered by the JBNQA because its process is incompatible with that found in the JBNQA. The Superior Court also decided that in determining which EIA committee would be responsible (federal or provincial), it was essential to consider the nature of the project (a mine - provincial jurisdiction) and not its effects (fish habitat - federal jurisdiction). The Quebec Superior Court therefore rejected the idea of having two EIA processes conducted by both the federal and provincial committees under the JBNQA.
The Quebec Court of Appeal Decision
To decide whether a provincial or federal EIA - or both - are required, the Court had to decide whether to consider only the nature of the project or the impact on federal matters.
The Court agreed with all parties that a provincial JBNQA EIA is required. With respect to a federal EIA, the Court decided that there was indeed a trigger that resulted in the application of the CEAA, because the project required a HADD Permit under the federal Fisheries Act.
As such, the Court decided that the project must be subject to two EIAs, a provincial process and a federal process. The remaining issue was whether the federal EIA must be conducted under the federal process under the JBNQA or the process under CEAA.
The Court raised a practical incompatibility between the CEAA and the JBNQA stemming from the privileged status given to Aboriginal Peoples under the JBNQA. The JBNQA stipulates that Aboriginal peoples have a very important role in the context of an EIA in order to protect their ancestral rights and way of life. Therefore, there is an incompatibility between both instruments and the JBNQA must be given precedence.
Consequently, the Court held that the existence of an external trigger found in a federal law is not incompatible with the JBNQA. As such, an EIA process under the JBNQA can be triggered by a provincial or federal environmental law. There is no need for the JBNQA to mention the external trigger.
The Court declared that the project is subject to both the provincial and the federal EIA processes under the JBNQA.
The Attorney General of Quebec has appealed the decision on the basis that the nature of the project relates to natural resources and, as such, only the provincial EIA process under the JBNQA is applicable. The case raises, for the first time, the interrelationship between environmental impact assessment processes under a treaty, provincial and federal legislation.