The Grand Council of the Crees

Analysis of the Superior Court Judgement

Analysis of the Superior Court Judgement

Posted: 2000-05-21

In their Motion for orders to safeguard the rights of the Applicants, the Crees asked the Court to safeguard the rights of Cree Applicants by ordering, among other things, that the general and five-year forest management plans not be submitted by any Respondents to the James Bay Advisory Committee on the Environment nor approved, ratified or finalized, until such time as the Superior Court of Québec has rendered its final decision in both Motions dated July 6, 1999 and July 28, 1999 filed within the Mario Lord proceedings.

In support to their Motion, the Crees argued, among other things, that the processes respecting the general and five-year forest management plans and the plans themselves and the likely and imminent approval of such plans; a) defeat the object of Motion no. 1 and Motion no. 2 and will render any interlocutory or permanent injunctions ineffectual, b) effectively deprive Cree Applicants of access to the Courts for the determination of their rights and c) breach their constitutional, statutory rights and the provisions of the JBNQA.

This Motion was strongly opposed by the Respondents.

Québec and the forestry companies contested the application filed by the Crees and argued that the process now under way must continue as before; that the true status quo is the present forestry operations, carried on as usual.

They also submitted that they must act immediately, otherwise the result will be devastation, unemployment, bankruptcy, and mill closings, since the average 7.7 million cubic metres of wood harvested in the territory of the JBNQ Agreement equal the volume harvested from all of the private forests in Québec (7.6 million cubic metres in 1997). If there is a halt to the approval process, the annual permits held by the forestry companies cannot be renewed at the end of March, 2000, hence the impact on employment, salaries and on the benefit to the regional and province-wide economy and on fiscal revenues of both the federal and provincial governments.

Canada had taken the position that the federal government was not affected by the Motion.

The Superior Court dismissed the arguments of the Respondents and gave strong relief as a result of the Motion.

The salient aspects of this judgment are the following.

1. FORESTRY DEVELOPMENT IS SUBJECT TO ENVIRONMENTAL AND SOCIAL ASSESSMENT AND REVIEW

Justice Croteau points out that under sub-section 2.2 of the JBNQA, Quebec recognizes and grants to the Crees the rights, privileges and benefits specified in the Agreement. After having proceeded to the examination of relevant provisions of the JBNQA, he concludes that the forestry companies are subject to the environmental and social impact assessment and review process provided for in Section 22 of the JBNQA. Reference can be made to the following quotations:

at p. 28:

"In paragraph 5.2.3 of Section 5 dealing with the land regime, Quebec may appropriate Category II lands for development purposes, provided that the lands are replaced or the Cree are compensated."

at pp. 28 and 29:

"The rights or the exercise of by non-Natives in respect to their lawful activities are to be controlled by Quebec through legislation or regulations. Whenever these activities interfere with the rights granted to the Crees under Section 24 of the Agreement relating to hunting, fishing and trapping, Québec must establish a systems of reasonable enforcement mechanism.

For the purposes of the Agreement, in respect of Category II lands, development by non-Natives means any act or deed which precludes hunting, fishing and trapping activities by the Cree."

at p. 29:

"Paragraph 5.5.1 provides that Québec may develop Category II and III lands. However, developers shall be submitted to the Environmental Regime which takes into account the Hunting, Fishing and Trapping Regime of the Cree.

As set out in the final paragraph of 5.2.3 - Development, Section 22 of the Agreement establishes rules for the environment and development on Category II and III lands, such as the development undertaken by the forestry companies (para. 22.1.4)."

(...)

at pp. 30 and 31:

Paragraph 22.2.3 should be noted, for the purposes of the present litigation:

All applicable federal and provincial laws of general application respecting environmental and social protection shall apply in the Territory to the extent that they are not inconsistent with the provisions of the Agreement and in particular of this Section. If necessary to give effect to the present Section of the Agreement, Québec and Canada shall take the required measures to adopt suitable legislation and regulations for such purpose."

This paragraph contemplates the Environment Quality Act and the Forest Act and particularly the applicability of Section 144 of the Environment Quality Act.

at pp. 32 and 33:

"The general norm applies with respect to forestry development, Schedule 1(4) of Section 22. Forestry companies are subject to the environmental impact assessment process."

4. Forestry and Agriculture:

Major access roads built for extraction of forest products.

Pulp and paper mills or other forestry plants.

In general, any significant change in land use substantially affecting more than 25 square miles (25 mi2)."

Finally, the Superior Court adds the following:

at p. 37:

"Paragraph 24.6.2 confers on a Cree priority in the harvesting of game populations.

The rights guaranteed to the Crees are subject to environmental protection."

1. THE RIGHT OF Québec TO DEVELOP IS RESTRICTED BY THE RIGHTS OF THE CREES PROVIDED IN THE JBNQA WHICH ARE PROTECTED BY SECTION 35 OF THE CONSTITUTION ACT, 1982

The decision clearly states that the right to develop of Québec is restricted by the rights of the Crees created or confirmed by the JBNQA and that these rights receive full constitutional protection within the terms of Section 35 of the Constitution Act, 1982.

Reference can be made to the following quotations:

at p. 38: "While the lands are clearly Québec lands, the Government of Québec is nonetheless restricted in its actions with respect to the exploitation thereof. In addition to contractual basis, the rights created or confirmed by the JBNQ Agreement benefit from the protection of section 35(3) of the Constitution Act, 1982. (underlining by the judge)

Referring to the factual and legal context, Justice Croteau notes the following:

at p. 38:

The Cree have hunting, fishing and trapping rights on Category II and III lands (Section 24), in the Territory subject to the JBNQ Agreement, and rights to environmental and social impact analysis in the case of a development or development project (para. 5.2.3, last lines).

(Underlining by the judge)

It is on these lands used by the Cree that the Respondents forestry companies, CAAF holders, are pursuing their operations.

(...)

At the same time, paragraph 22.5.1 requires, for every forestry development, an assessment and examination of environmental and social repercussions on the Cree'Schedule 1(4) of Section 22 (paragraph 22.5.1)."

Then the Court made additional statements to the effect that the rights of the Cree provided in the JBNQA are entirely protected by section 35 of the Constitution Act, 1982. Reference can be made to the following quotations:

at p. 40:

"Since the amendments made in 1983 to section 35 of the Constitution Act, 1982, the rights under the JBNQ Agreement have received constitutional protection (s.35 (3) ) to the same degree as treaty rights. These rights take precedence in the event of conflict with certain legislative and administrative measures.

Since 1983, Cree rights vested with constitutional protection (Sections 22 and 24) have remained sheltered from federal and provincial legislative measures, regulations and administrative directives and agreements and contracts. This includes the CAAFs."

In the Supreme Court decision, Reference Re the Secession of Québec, [1998] 2 SCR 217, the Court tells us:

"with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy." (at 258, para. 72)

And further on:

"Although democratic government is generally solicitous of those [constitutional] rights, there are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively. Constitutional entrenchment ensures that those rights will be given due regard and protection." (at 259, para. 74)

2. ATTEMPT TO UNILATERALLY ABROGATE OR AMEND THE PROVISIONS OF SECTION 22 OF THE JBNQA

Quebec had forcefully argued that section 144 of the Environment Quality Act (and Schedule 2(i) of the JBNQA) exempts from the requirement for environmental and social impact assessment the forest management plans. As such, it was particularly argued by Quebec that the Minister of Natural Resources has only the obligation to transmit the plans to the Consultative Committee for comment before approving them.

Justice Croteau strongly rejects these arguments. The judge made very strong statements that Québec may not unilaterally abrogate or amend the provisions of Section 22 of the JBNQA through its legislation.

The Court held that by the adoption of Section 144 of the Environment Quality Act, the section by which Québec has attempted to exempt the forestry regime from comprehensive environmental assessment, the government of Québec short-circuited the social and environmental protection regime applicable in the James Bay territory. The Court thus found that the provision of the statute was unconstitutional.

The most pertinent quotes related to this issue are the following:

at p. 42:

"It is intended to continue the past practice of approving the 25-year general plans and the five-year plans in accordance with the process established by Québec, i.e. the application of Section 144 of the Environment Quality Act, Schedule 2(i) and the application of paragraph 22.3.34 of Section 22. By proceeding in this fashion, the provincial government has short-circuited the environmental and social protection regime (para. 22.5.1) applicable to the territory defined in paragraph 22.1.6. According to the correspondence filed in the record, the Cree community has condemned this conduct of the provincial government for years.

(...) schedule 2(i) indicates to us that the "governmental approved management plans" are not the general and five-year plans approved by the Minister or the Department of Natural Resources - Forest Quebec (sections 51, 52 and 57 of the Forest Act)."

(underlining by the judge)

at p. 43:

If one wished to go further, the Interpretation Act, RSQ, c. I-16, defines the word "Government" as "the Lieutenant Governor and the Conseil exécutif du Québec" (section 61 (12) ).

In order to understand the meaning and scope of Schedule 2(i) more completely, one has only to read the Lands and Forests Act, RSQ, 1964, c. 92, which was in force at the time of the signing of the Agreement. The Act reveals that during the 1970's the Lieutenant Governor in Council could authorize the Minister of Lands and Forests to concede to small industrialists, for their forest exploitation, wooded lands of the Crown domain, comprising an area from 2, 000 m2 to 50,000 m2 at a price of $500.00 per square mile.

In light of the foregoing, it is obvious that Schedule 2(i) is an exception to the general rule. The grant could only be made to a single person and the extent of the land so granted was rather limited. This explains the simplified procedure specified in paragraph 22.3.34. Therefore, to find that Schedule 2(i) operates in the manner proposed by Québec would be a barbarism. It would mean giving the word "Government," a meaning that it does not have, as though it meant "Department of Lands and Forests" or "Minister"."

The Court found, moreover, that the regime put into place by the Ministry of Forests of Québec reflects a negligent attitude, among other reasons, because Québec has delegated the powers to develop forest management plans to the forestry companies. We refer you in particular to the following quotes:

and at p. 43:

"The evidence also discloses that paragraph 22.3.34 has not been complied with by the Department. There has been a degree of laxity on its part."

at p. 44:

Under paragraph 22.3.34, it is the Department which elaborate the management and operation plans and sends them to the Advisory Committee. Curiously, Québec has set aside this procedure. Instead, the forestry companies establish the management and operation plans and undertake consultation initiatives with the trappers, tallymen and Band Chiefs.

By allowing the forestry companies to undertake discussions with certain members of the Cree community, Québec places the companies in a position of conflict of interest or in at least a position of appearance of conflict of interest. This can give rise to a fear on the part of the Cree community in general that it is being abused or deprived of certain rights such laxity may lead to a public perception that there appears to be a conflict of interest and discredit the Provincial Administration.

"This attitude of the provincial administration allows Québec to avoid the environmental and social impact assessment required by Section 22 (para. 22.5.1 and following) and the Minister to avoid consulting the Advisory Committee."

3. THE PRESENT APPROVAL PROCESS FOR MANAGEMENT PLANS ADOPTED BY Québec CONSTITUTES A SYSTEMATIC VIOLATION OF THE JBNQA

Justice Croteau specifically and clearly indicated that the constitutional rights of the Cree have been openly and continuously violated by the government of Québec and the forestry companies.

Quoting Lord Alfred Denning, justice Croteau wrote at page 28,"Silence is not an option when things are ill done."

The Court concluded that according to the evidence, the present approval process for forest management plans adopted by Québec constitutes a systematic violation of certain provisions of the James Bay and Northern Québec Agreement and violates the rights of the Cree communities to the assessment of the social and environmental repercussions of the forestry activities in their territory.

We refer you in particular to the following quotes:

at p.45:

"On the evidence, the Court if of the opinion that the process for the approval of plans which has been put in place by Québec, is an open, deliberate and systematic violation of a number of provisions of Section 22, which confer upon the Cree community the rights to the implementation of the environmental and social impact assessment and review regime.

Cree Applicants thus have a clear right to the suspension they have requested. There is no doubt in the mind of the undersigned."

at p. 46:

"In this case, the Court has arrived at the firm conclusion that Section 144 of the Environment Quality Act by fixing a delay of 90 days conflicts with the assessment regime established by Section 22 and is therefore incompatible with the provisions of Section 22 (para. 22.2.3).

In the exercise of its jurisdiction, this Court has the inherent power to oversee and ensure the maintenance of the rule of law. In exercising this power, the Court has no choice but to acknowledge that Section 144 is inoperative, because it contravenes the constitutionalized rights of the Cree community.

Another point of great significance is that the Minister and/or the Department, by relying on Schedule 2(i) as the gateway to the consultation contemplated by paragraph 22.3.34, has clearly repudiated the impact assessment and review process for forestry activities. Québec, the Minister, and/or the Department breach paragraph 22.7.10 respecting amendments. This Court does not believe that subtleties should thwart a constitutionally protected regime.

4. THE RULE OF LAW

The Attorneys for the forestry companies had argued at length the principle of the rule of law. Mainly, they stated that they have always complied with the legal framework and procedures established by the Provincial government.

As a reply to the forestry companies' arguments, the legal counsel of the Crees insisted on the fact that the amendments in 1982 to the Constitutional Act have introduced a new dimension into the enforcement of laws.

After reiterating that the role of the Superior Court is to maintain the rule of law, the judge indicates that in fulfilling his role to maintain the rule of law, he will take into consideration at the same time, the immediate situation in which the forestry companies find themselves and the injury that may be caused to their employees and the local and regional communities should the process of consultation and plan approval be halted as well as the effect on the constitutional rights of the Crees over the medium and long term.

Justice Croteau notes that as a constitutionally entrenched Court, the Superior Court possesses inherent powers and it should exercise them when necessary.

The judge again notes that Québec cannot violate the constitutionalized rights of the Crees with impunity.

Then, Justice Croteau made the following statements:

at p. 47:

"The Court must not refrain from ordering redress on the basis of form alone. The Charter has introduced a new dimension with respect to the applicability of statutes and to fail to take this into account could lead to denials of justice."

at p. 49:

"In the present case, the forestry companies have, since 1987, acted inside the framework and procedure established by the Provincial Administration.

In the present circumstances, the constitutionalized rights of Cree Applicants have been openly and continuously violated."

and at p. 50:

"Québec is systematically [failing to comply] with the Agreement which it signed. Québec cannot violate the constitutionalized rights of the Cree community with impunity.

This failure of Québec to enforce in the short and medium term, the environmental protection and social regime applicable in the territory (Section 22), would cause enormous and very serious damages to the Crees who could not be compensated or compensated only with great difficulty. Moreover, in the absence of evidence, the Court will not embark upon spiritual questions, i.e. traditional beliefs and practices of the Native people, but these can be considered in future at sessions of the provincial Committee. Among some of the Native people, certain of the sites and locations of the forest are used for medicinal and spiritual renewal purposes through communications with the Creator who is present everywhere.

In the circumstances of these proceedings, the Court believes that it would not be abusing its inherent powers if it were to reserve its decision with respect to the conclusions sought by the Cree Applicants, declare section 144 of the Environment Quality Act inoperative, suspend the effect of this last conclusion until July 1st, 2000 and order Québec to amend its legislation before July 1st, 2000, to take into account the assessment regime established under Section 22 of the JBNQ Agreement. This would also allow the Minister and the Department of Natural Resources - Forest Quebec, as the case may be, to approve the 25-year general plans and the 5-year plans, or only the five-year plans, subject to the application of the environmental assessment regime prescribed by Section 22 of the Agreement, as soon as possible after July 1st, 2000, or after legislative amendments made by Québec. This conditional approval will allow the forestry companies to obtain their annual permits before April 1st, 2000."

Finally, Justice Croteau recognizes the de facto validity of acts and approvals of plans made in compliance with the existing legislation, even though the legislation itself is invalid because it violates the constitutionalized rights of the Crees. This de facto validity temporarily in force for six months has the effect of allowing the forestry companies to obtain their annual permits at the end of March 2000 and to operate on the basis of "business as usual".

Comments

The Court makes many other statements and comments related to the interpretation of the JBNQA and forestry development in the James Bay Territory which are favorable to the Cree position.

As mentioned above, the Superior Court has given a six months delay to the Québec government to amend its legislation in order to render that legislation in conformity with the provisions of the JBNQA. The forestry activities may continue until July 1st, 2000. After this date, if the regime is not profoundly changed, and if full environmental assessment is not initiated, the Court reserves the rights of the Crees to have all forestry activities after July 1st, 2000 cease.

The Court also orders the provisional execution of the present judgment notwithstanding appeal.

This judgment represents a decisive victory in the conflict which opposes the Crees, the government of Québec, the government of Canada and the forestry companies.