The Grand Council of the Crees

Environmental Assessment: Ottawa Evicted From Cree Territory

Environmental Assessment: Ottawa Evicted From Cree Territory

Posted: 2006-04-04

French original writtem by Louis-Gilles Francoeur, from Le Devoir, April 4, 2006, page A4. Translated for www.GCC.ca The Canadian Environmental Assessment Act (CEAA) does not apply on Cree territory. So decided the Quebec Superior Court in a decision served to the parties at the end of last week. The court's verdict follows a request made by the Crees to have the federal law declared invalid as regards the territory governed by the James Bay and Northern Quebec Agreement (JBNQA). The Crees asked that the tribunal require Quebec and Ottawa to carry out two separate environmental assessments, one of three scenarios provided for in the JBNQA. That was not granted. Instead, the Provincial Court decided that, in the case of a project of a provincial nature, only the assessment mechanism set out in the JBNQA regarding matters of a provincial nature applies. The judgment follows a project notification presented to Quebec in 1999 to allow McKenzie Bay International to develop a vanadium mine at Dore Lake, near Chibougamau. In August 2004, the Canadian Environmental Assessment Agency notified the Crees that they had to carry out an environmental assessment by means of a public review board in accordance with federal law. The Crees, who had begun an environmental assessment under the Agreement signed by Quebec and Ottawa, wanted the two governments to intervene. They were of the opinion that each had to evaluate those aspects that fall under their respective jurisdiction, namely fish under federal jurisdiction, and the rest under Quebec jurisdiction. In her decision, Judge Nicole Bénard noted that the Crees participate in the two instances created by the JBNQA to evaluate the impact of projects in territories covered by the Agreement, following an arbitration and mediation system. Accordingly, the Crees are included in the drafting of conclusions at the two levels. The first level dictates to the promoter the content of the eventual impact assessment. The second makes recommendations following a public review of a project and its impact. For Judge Bénard, the assessment process under the federal law fails to involve the Crees in the work of the review boards, created to be totally independent of the parties involved in a project. At the federal level, the Crees basically form part of the public at a hearing while the JBNQA stipulates that they sit on review boards. The magistrate mentioned that, in signing the JBNQA, the federal and the provincial governments had accepted to modify their acts and regulations to adapt them to the provisions of the Agreement, which, at all times, take precedence over any statute to the contrary. Given that the federal act grants fewer rights to the Crees, the tribunal declared the Canadian Environmental Assessment Act inconsistent with the JBNQA and ordered the federal government and its ministers to stop all review of the project in question. Whether both governments need to conduct a review in terms of their respective jurisdiction, the Superior Court said it did not, submitting rather to decisions rendered by other tribunals. It's the nature of the project, wrote Justice Bénard, not its consequences - in this case, on fish - that determines the level of an environmental assessment. Given that mines come under Quebec jurisdiction, the entire project will be evaluated by virtue of the JBNQA, which involves Quebec and the Crees solely. Charles Côté | Environnement