Moses v. Canada – A Partial Analysis of The Federal Court’s Reasoning
In Friends of the Oldman River Society v. Canada,  1 S.C.R. 3, Justice LaForest wrote that an “[e]nvironmental impact assessment is, in its simplest form, a planning tool that is now generally regarded as an integral component of sound decision-making.” One of the enumerated purposes of the Canadian Environmental Assessment Act, S.C. 1992 c.37, (CEAA) is to promote a spirit of “co-operation and co-ordinated action between responsible authorities and Aboriginal peoples.” According to The James Bay and Northern Quebec Agreement (JBNQA) (contained within the CEAA), an environmental regime is to be conducted in a manner that will ensure that “development [is] in harmony with the protection of the environment.”
In Moses v. Canada, 2008 QCCA 741, accepted for appeal to the Supreme Court several weeks ago, the spirit of co-operation “between responsible authorities and Aboriginal peoples” and the goal of protecting the environment were suppressed by the legal analysis of the Quebec Court of Appeal (CA). This analysis was obscured both by its consideration of the paramountcy doctrine and by the application of both a formal and principled approach to interpret the environmental assessment regime set out in the JBNQA and the CEAA. This obscure legal analysis has created confusion as to whether an environmental assessment can proceed under a comprehensive land agreement, such as the JBNQA, in a spirit of co-operation and with the goal of protecting the environment.
The cloud that now hangs over the CA’s obscure legal analysis may be understood by examining two aspects. The first aspect is its application of the paramountcy doctrine. The second aspect is its interpretation of the JBNQA as a treaty in the context of the CA’s second question: are the CEAA and Section 22 of the Agreement inconsistent?
The CA considered the applicability of the environmental assessment and review procedure to a vanadium mining operation on Dore Lake, which is situated in the vicinity of the town of Chibougamou and the Mlstisini Beaver preserve trapline that has been traditionally worked by an Ouje-Bougoumou.
From May 27, 1999, through to July 28, 2003, the proponent, the Quebec Minister of Environment, and the JBNQA provincial administrator exchanged a range of documents pertaining to the mining project. On August 12, 2003, the Provincial Environmental Assessment Agency received correspondence from the Canadian Environmental Assessment Agency stating “that the Canadian Department of Fisheries and Oceans will act as the responsible authority and that the Project shall be subject to the CEAA and the provincial social and environmental impact assessment process provided under Section 22″ of the JBNQA. On April 2, 2004, however, the Canadian Environmental Assessment Agency reversed its decision of August 12, 2003 and informed “the Crees that the project will be the subject of an environmental impact review by a review panel created under the CEAA as opposed to a comprehensive study under Section 22″ of the JBNQA. On May 4, 2004, the Grand Council of the Crees responded to the Canadian Environmental Assessment Agency. In their correspondence, the Grand Council of the Crees opines that both the federal and the provincial review processes should apply because of the impact of the project upon a matter of federal jurisdiction (fisheries) and because the nature of the project fell within provincial jurisdiction (mining).
Although all of the parties agreed that the project was to be subjected to an environmental and social impact assessment, the CA was in essence asked to determine the hierarchy and the applicability of the environmental assessment processes to the mining project. In other words, the appeal court had to determine which environmental assessment regime applied in this case: i) both the provincial and federal processes, as set out in Section 22 of the JBNQA; ii) only the provincial process, as set out in Section 22 of JBNQA; or iii) only the CEAA.
Although this post is limited to an analysis of question two (are the CEAA and Section 22 of the Agreement inconsistent?), the CA’s legal analysis of the hierarchy and applicability of the environmental assessment process was framed in the context of the following three questions:
1.) In the present case, is there an applicable federal trigger under the CEAA?
2.) Are the CEAA and Section 22 of the Agreement inconsistent?
3.) Is there the existence of an external trigger inconsistent with the terms of the Agreement?
The CA’s Holding:
The CA, at paragraph 208, set aside the lower court’s decision and held that:
- The “vanadium mining project is subject to the provincial review as set out in Section 22” of the JBNQA.
- The CEAA is “applicable to the vanadium mining project with exception of the review procedure set out” in the JBNQA and “accordingly substitutes the federal review procedure set out in Section 22” JBNQA.
- The CA further orders federal authorities to “cease using the review procedure set out in the [CEAA] in respect of the vanadium mining project.”
The CA’s Analysis: The Paramountcy Doctrine
The doctrine of paramountcy “applies where there is a federal law and provincial law which are (1) each valid, and (2) inconsistent,” according to Peter Hogg in Constitutional Law of Canada. Under the doctrine, the federal law would prevail.
The CA broached the issue of inconsistency under the paramountcy doctrine by applying a formal and principled approach to the JBNQA and the CEAA. In effect, by adopting an analysis that is based upon the doctrine of paramountcy, the CA implied that both the federal law (CEAA) and the comprehensive land claim agreement (JBNQA) are each valid but, perhaps, inconsistent laws. The problem with this legal analysis is that the CA missed the fundamental consideration: Should the paramountcy doctrine apply to a comprehensive land claim agreement (JBNQA)? For the reasons stated in this post, the answer to this question is no.
In Moses, the CA characterized the JBNQA as a “supralegislative text”. The use of the adverb “supra” suggests that the JBNQA possess a status that is hierarchically above the typical form of legislation; perhaps the CA was implying that the JBNQA is something more than legislation. This characterization, however, is problematic in that it opened the door for the CA to consider the application of the paramountcy doctrine to the JBNQA, a negotiated agreement.
In Eastmain Band v. Canada (Federal Administrator), (1992),  1 F.C. 501, Décary J., writing for the majority of the Federal Court of Appeal, illuminated the distinction between a negotiated agreement and legislation. Décary J. stated:
While the Agreement [JBNQA] has been confirmed by legislation, as this Court has concluded… which makes it an Act of the Parliament of Canada for the purpose of giving the Federal Court jurisdiction, nonetheless it is, fundamentally, “a legislated contract, one that derives all of its legal force even as a contract from the laws which are to give it effect and validity”… It would be an error to consider the Agreement to be such a statute, in order to import into it the principles of interpretation which apply to statutes relating to Indians. The federal Act here does not express “the will of Parliament”; rather, it expresses the will of the parties to the Agreement.
In other words, the JBNQA is a negotiated agreement that was confirmed by legislation and represented the intent of its parties not the will of Parliament. Thus, it is questionable whether the JBNQA can be characterized as legislation.
Given Décary J.’s distinction between legislation and a negotiated agreement, the application of the doctrine of paramountcy to a negotiated agreement in Moses clouds the legal analysis. The application of the paramountcy doctrine to a negotiated agreement in effect unnecessarily expanded the boundaries of the doctrine. This expansion of the doctrine could have been avoided by simply relying upon the Federal CA’s earlier analysis of the JBNQA in Eastmain Band.
Unfortunately, the insidious effect of expanding the boundaries of the doctrine is that the quintessence of the JBNQA is diminished and the honour of the Crown is brought into question. The JBNQA envisioned the reconciliation of and a new relationship between the Crees, the Inuit and two levels of government (federal and provincial). The land claim agreement was premised upon negotiating a resolution that held a status of primacy over federal laws. In the words of John Ciaccia, Special Representative of Premier Robert Bourassa, the primacy over federal laws (albeit as it related to the Indian Act, a federal statute) is discussed in the Section of JBNQA entitled “Philosophy of the Agreement”:
“This Agreement will, in fact, take precedence over the federal Indian Act. It is our aim that a new concept will exist, to be implemented by Quebec law. This concept is that of a community which the Crees and the Inuit, as the case may be, will inhabit as their own, and which will be built around their traditional activities, but which will be accessible to the rest of society.”
Effectively, the Philosophy of the Agreement, as described above, establishes a hierarchy that places the JBNQA above federal legislation. Based upon this hierarchy, it seems reasonable to conclude that the JBNQA should prevail over federal legislation, such as the CEAA. Since the CEAA applies to both the federal and provincial Crown, the honour of the Crown is also implicated.
In the present dispute, all parties agreed that the vanadium mining project should be subjected to an environmental assessment review; yet, they disagreed which review applies. A reading of the CA’s facts suggests that the Federal government’s conduct on April 2, 2004, is dismissive of the quintessence of the JBNQA: specifically, the need for reconciliation and a new relationship with the Crees. In fact, the Federal government’s conduct of reversing their decision of August 12, 2003, in which the provisions of the JBNQA were respected, raises doubt that the honour of the Crown is being upheld. Rather, it appears that the Federal government has ignored the spirit of cooperation that not only underpins reconciliation with First Nations but also is explicitly referenced in the purpose section of the CEAA, specifically s.4(1)(b.3) as well as ss. 12(1), 12(4) and 12(5)(c), which provide for situations that involve two or more authorities in the same project. Moreover, the spirit of co-operation infused throughout Section 22 of the Agreement was overlooked in the analysis.
This foregoing analysis demonstrates that the paramountcy doctrine ought not to apply to a negotiated agreement such as JBNQA, a comprehensive modern land claim agreement. Accordingly, the CA should not have relied upon this doctrine in deciding this case.
The Interpretation of the JBNQA As a Treaty
The CA’s use of historical treaty principles as a “rule of interpretation for determining whether the legislation in issue is consistent or not consistent” gives rise to an inconsistency within the CA’s legal analysis. The problem with this analysis is that by relying upon the nine principles set out in R. v. Marshall,  3 S.C.R. 456, the CA applied historically-based treaty principles to a modern agreement. This application of historical treaty principles obscures the analysis, as it implies that historically based principles can be applied to a modern land claim agreement despite the important differences in the legal and historical context. In the end, the legal analysis is unclear. Under the guise of determining whether the legislation is consistent, the CA has left unanswered the question which rule of interpretation should apply to a modern land claim agreement.
Within the legal analysis of the treaty, the CA considered the JBNQA’s conflict provision. However, consideration of the conflict provision within the treaty analysis only creates uncertainty regarding the nature of the analysis and reinforces the possibility that the CA was uncertain as to which rule of interpretation should apply to a modern land claim agreement.
Despite the deficiencies of its analysis, the CA did perform a textual analysis of Section 22 of the Agreement that in part considers the obiter of Décary J. in Eastmain Band. Interestingly, in the decision, the CA did not explicitly reference Décary J.’s cogent and thorough textual analysis of Section 22 of the Agreement, which included an accurate description of the environment assessment process set out in the Agreement but is too lengthy to include in this post.
The basis of the CA’s analysis, however, is problematic because it is initially premised upon a comparison with the CEAA rather than ascertaining the “facial meaning” of the words in the Agreement. In Marshall, Justice McLachlin (as she was then) prescribed in her dissent two steps to be adopted when interpreting a treaty, the first of which steps is perhaps instructive in interpreting a modern land claim agreement. In the first step, the “facial meaning” of the words of the treaty clause should be ascertained. Relying upon R. v. Badger,  1 S.C.R. 771, as her authority, Justice McLachlin took the view that, initially, “the scope of treaty rights will be determined by their wording.” The objective of this step is to create a “preliminary framework” within which to establish the historical social-political context of the treaty while recognizing the need to both avoid a restrictive interpretation and to give effect to other interpretative principles beyond the preliminary focus on textual wording.
In the present dispute, a “facial reading” of the JBNQA directs the analysis away from questions of consistency towards consideration of the scope, the historical context and a reading of the treaty text, specifically Section 22, which addresses the issue of an environmental assessment.
This foregoing analysis illustrates that interpreting a modern comprehensive land claim agreement under the guise of a consistency argument and the use of treaty principles applicable to historical treaties only leads to an obscure legal analysis. An alternative approach is to first adopt the step of determining the “facial meaning” of an agreement prior to conducting a more complete textual analysis. Adopting this first step may allow for consideration of the scope of an agreement and the subtle complexities that are often embedded within the historical and socio-political context of modern comprehensive land claim agreements.
Conducting this first step of ascertaining the “facial meaning” of the Agreement not only exposes the scope of the JBNQA, which envisioned reconciliation, co-management of natural resources and a spirit of co-operation that is in keeping with a contemporary approach to conducting an EA, but also the desire of the parties to protect the environment is upheld. Protection of the environment is intimately tied to “the protection of the hunting, fishing and trapping rights of Native people in the Territory.” The Agreement explicitly directs the levels of government, including those created by the Agreement, to protect “wildlife resources, physical and biotic environment, and ecological systems in the Territory.” In other words, development proposals must first satisfy the objectives of environmental protection set out in Section 22 of the Agreement.
The CA’s analysis of its second question (namely whether the CEAA and Section 22 of the Agreement are inconsistent) resulted in an obscure legal analysis that was based on a doubtful application of the paramountcy doctrine to the JBNQA, a negotiated agreement, and left open the question which rule of interpretation should apply to a modern comprehensive land claim agreement.
Sadly, in its analysis the CA’s sidestepped the spirit of co-operation and the protection of the environment that underpins both the Agreement and the CEAA. It is questionable that the raison d’être for carrying out an environmental assessment review has been achieved in this decision.
Perhaps, an alternative approach to the interpretation of a modern comprehensive land claim agreement is to adopt two steps: first, complete a “facial reading” of the Agreement, and second, complete a fuller textual analysis. Application of this first step will not only allow for consideration of the scope of an agreement but also the historical and socio-political context of the modern comprehensive land claim agreement can be taken into account.