The Grand Council of the Crees

Speaking Notes for the Commission Des Transports Et De L'environnement

An Act To Amend The Environment Quality Act To Modernize The Environmental Authorization Scheme And To Amend Other Legislative Provisions, In Particular To Reform The Governance Of The Green Fund (Bill 102)

Posted: 2016-11-28

Read: Brief of the Grand Council of the Crees (Eeyou Istchee/ Cree Nation Government to the Commission des transports et de l'environment Regarding An Act To Amend The Environment Quality Act To Modernize Theenvironmental Authorization Scheme And To Amend Other Legislative Provisions, In Particular To Reform The Governance Of The Green Fund (Bill 102)

INTRODUCTION

[In Cree - acknowledgement of the Huron-Wendat Nation.]

I want to acknowledge our presence here today in the traditional territory of the Huron-Wendat Nation, and to thank them for receiving us.  

I thank the Committee for inviting us to share our views on Bill 102.

GCC(EI)/CNG

The Grand Council of the Crees (Eeyou Istchee) is the political body that represents the approximately 18,000 Cree of Eeyou Istchee, our traditional homeland.

The Cree Nation Government exercises governmental functions on behalf of the Cree.

BRIEF

We have tabled with the Committee a detailed brief on Bill 102. Obviously, we will not go through all of it. However, I would invite you to read carefully its contents.

JBNQA

You are certainly aware that the Crees and Québec signed the James Bay and Northern Québec Agreement in 1975. I will refer to it as the JBNQA or as the treaty.

Indeed, all Courts have now recognized that the JBNQA is a modern treaty protected by the Constitution of Canada. This is no longer a question.

What this means is that the JBNQA trumps legislation that is not compliant with it. In other words, the JBNQA prevails.

However, when the parties to the JBNQA see a potential incompatibility between the JBNQA and the legislation, it can be fixed. How is it fixed? There are various ways to fix this problem; one of them is for the parties to amend the treaty.

Of course, the parties can also amend the JBNQA for other reasons.

In other words, the parties, including Québec and the Crees, can always amend the JBNQA.

BILL 102 AND STRATEGIC ENVIRONMENTAL ASSESSMENT

We have to talk about the JBNQA considering that we see various potential problems in the implementation of Bill 102. On the other hand, we see also positive elements. The preferable way to reconcile these potential problems with the positive elements is simply for the parties to sit together and to come up with solutions. One of the options is clearly to amend the treaty.

Let me give you an example which relates to the concept of strategic environmental assessment. I draw your attention to paragraphs 10, 66 and 67 of our brief. I will read them out loud:

10. The GCC(EI)/CNG is concerned about the interpretation of certain provisions of Bill 102, in respect of their applicability in the territory subject to Section 22 of the JBNQA. For example, for the GCC(EI)/CNG, it is clear that the existing provisions of the Environment Quality Act regarding the Bureau d’audience publiques en environnement (BAPE), as well as the new provisions proposed in Bill 102 relating to the framework for the conduct of strategic environmental assessments (SEAs) and the Strategic Environmental Assessment Advisory Committee (SEAAC), are inapplicable in JBNQA territory. However, there have been situations in the past where the GCC(EI)/CNG was confronted with a different interpretation regarding the applicability in JBNQA territory of legislative provisions of this kind.

66.  Although the provisions of Bill 102 regarding the BAPE, the SEAAC and SEAs are not applicable on the JBNQA territory, the GCC(EI)/CNG sees the merit of considering amendments of Section 22 of the JBNQA in order to integrate certain of these concepts. However, any such amendment would have to take into account and integrate the adequate structures of Section 22 of the JBNQA.  Subsequently, further amendments to the Environment Quality Act could be made, as necessary to reflect the changes to Section 22 of the JBNQA. To reiterate, the JBNQA cannot be amended by Bill 102.

67.  Incorporating these changes into the JBNQA, and thereafter into the Environment Quality Act, will require serious Cree-Québec discussions, with duly mandated representatives. The GCC(EI)/CNG is open to participating in such discussions, with a view to considering options to modernize Section 22 of the JBNQ

Why does the GCCEI/CNG take this position? The answer is simple: Québec and the Crees have established structures in the JBNQA to assess social and environmental issues. The responsibilities that are assigned by the JBNQA to special treaty institutions cannot be transferred by legislation to non-treaty institutions. Therefore, for example, the BAPE processes do not apply in JBNQA territory.

Section 22 of the JBNQA contains the first modern regime to assess development projects. Under the JBNQA, this assessment is done by tripartite and bipartite committees that assess both the environmental and social impacts of projects. One of the main objectives of the regime is to ensure that the Cree hunting, fishing and trapping rights and rights to participate in development are protected in the context of development in Eeyou Istchee, the traditional territory of the Crees.

Under Section 22 of the JBNQA, four bodies are created which hold a particularly important role with respect to the environmental and social protection regime.  These bodies are the James Bay Advisory Committee on the Environment (JBACE), the Environmental and Social Impact Review Committee (COMEX), the Evaluating Committee (COMEV) and the Federal Review Panel (COFEX).

The role of the JBACE is to oversee the administration of the environmental and social protection regime in the territory. To this end, it is established as the “preferential and official forum” responsible for advising governments with respect to legislation and regulation which could have an effect on the environment and communities of Eeyou Istchee. It is formed of representatives appointed by the CNG, Québec and Canada. You met them last week.

COMEV is responsible for examining the preliminary information associated with a project and recommending whether or not the project should be subject to environmental and social assessment as well as the scope of the impact study that is required.  COMEV is composed of members appointed by the CNG, Québec and Canada.

COMEX, for its part, is responsible for reviewing and assessing the social and environmental impacts of projects in JBNQA territory which fall under Cree or provincial authority. To this end, it issues recommendations to the Provincial Administrator (for projects on Category II or III lands) or to the Administrator appointed by the CNG (for projects on Category I lands) as to whether or not a project should be approved, and, where appropriate, recommends conditions under which such projects should be authorized. It is composed of members appointed by the CNG and Québec.

COFEX occupies a similar role to COMEX, but has authority over projects which fall under federal jurisdiction. Given this, it issues recommendations to the Federal Administrator with respect to whether or not a project should be approved, and, where appropriate, recommends conditions under which such projects should be authorized. It is composed of members appointed by the CNG and Canada.

What is the common trend here? There is Cree participation and involvement in each of these committees. This is an important treaty right of the Crees. This right to participation in the institutions overseeing environmental and social protection protects the Crees’ special status and rights in the Territory. It also enables our people to feel confident when hearings and presentations are made. And it allows such presentations to be made in the language that is understood by our people.

It does not matter if the assessment is aimed at a particular project, is “generic” or is “strategic”: the point is that under the JBNQA, it has to be done with Cree participation, through one of the treaty bodies, not by an institution whose membership does not include Crees.

The GCC(EI)/CNG had to fight the federal government for years, even decades, in order to ensure that it would not impose a foreign environmental process onto the Crees.

Finally, in 2010, the Supreme Court of Canada, in the Moses judgment, was convinced of the Cree arguments in respect to the necessity to ensure Cree participation in the assessment of projects in a manner compatible with the JBNQA process. Justice Binnie wrote the following simple sentence that captures it all, in paragraph 48 of his judgment:

Common sense as well as legal requirements suggest that the (…) assessment will be structured to accommodate the special context of a project proposal in the James Bay Treaty territory, including the participation of the Cree.

What we are saying to Québec today is simple: do not make the same mistake that Canada did for years. Do not try to impose on the Cree a foreign process. Do not try to impose the BAPE or the SEAAC process which have no Crees on it. Use the existing structures of our treaty. Follow what the Supreme Court says.

I emphasize that the Grand Council of the Crees and the Cree Nation Government are willing to engage in discussions with Québec regarding how strategic environmental assessments might be applied in the JBNQA territory in a manner that is consistent with the JBNQA and with Cree rights. Let’s sit down and discuss amending the JBNQA in order to create a strategic environmental assessment process that integrates Cree participation through existing treaty structures.

At the same time, I must repeat that the Grand Council of the Crees and the Cree Nation Government are committed to ensuring that Cree treaty rights and JBNQA jurisdictions are fully respected, and we will take all necessary steps to this end.

BILL 102 AND AUTHORIZATIONS

Let me now turn to the issue of authorizations of projects after the conduct of the social and environmental process. In other words, the new scheme which will replace the Certification of Authorization process contemplated by sections 22 and following of the Environment Quality Act.

Many elements of Bill 102 regarding this new scheme are not problematic. However, it will be important to ensure, when it is implemented, that the relation between the JBNQA and the legislation is respected. Our brief explains extensively the reasons why this is required.

 In order to do this, we believe that Québec and the GCC(EI)/CNG will have to ensure that they maintain a positive nation-to-nation relationship in order to ensure that only those provisions of Bill 102 applicable to projects on Category II and III lands and not inconsistent with the JBNQA are implemented appropriately and by means of a process agreed with the GCC(EI)/CNG.

BILL 102 AND REGULATORY POWERS

We have noticed that some of the elements of Bill 102 applicable to projects carried out on Category II or III lands require additional regulation or governmental actions. These instruments will apply in addition to the social and environmental assessment process under Section 22 of the JNBQA.

At present, it is obviously impossible to have an opinion on these future instruments.

We consider that all these regulatory powers under Bill 102 must be “suitable legislation” within the meaning of the JBNQA. How can they be made suitable? The answer is simple: let’s talk before they are prepared and work together to make sure together that they are.

We consider that Cree-Québec discussions should take place in order to ensure that the regulatory powers stemming from Bill 102 are exercised in a manner compatible with the JBNQA.

BILL 102 AND RESIDUAL MATERIALS

We have noticed that the compensation currently paid to municipalities for the services related to residual materials can be allocated to “Native communities” under Bill 102. Again, in order to ensure respect for the jurisdictions of the CNG and of the Cree bands to regulate Category I lands, we need to sit down and figure out how this may be applied in our territory.

CONCLUSION

It is now time to conclude.

It is impossible to explain the whole of our brief to you today. Again, please make sure you read it. Please also make sure that those who will be responsible for finalizing the content of Bill 102 when it is presented again before the National Assembly read it, and that those who will be responsible for implementing any eventual amendments to the Environment Quality Act, read it as well.

I wish to bring your attention to 3 simple take-home messages:

  1. The GCC(EI)/CNG asserts its firm commitment to ensuring that Cree treaty rights and JBNQA jurisdictions are fully respected, and its determination to take all necessary steps to this end;
  2. The GCC(EI)/CNG also asserts its firm commitment to maintaining a positive nation-to-nation relationship with Québec, and its willingness to engage in discussions with Québec regarding how certain aspects of the Bill might be applied in the JBNQA territory in a manner that accords with the JBNQA and its institutions and Cree rights thereunder;
  3. Considering that the GCC(EI)/CNG sees the merit of some of the concept of Bill 102 (for example, strategic environmental assessment), serious Cree-Québec discussions will have to unfold between duly mandated representatives.

It is important that these messages be taken seriously. We can make certain aspects of Bill 102 work in the North. However, certain aspects cannot work at present. They could work if both parties sit down together and do what it takes to make it work.

We thank the Committee for its attention and we welcome any questions that its members may have.

Meegwetch. Merci. Thank you.