Quebec (Attorney General) v. Moses: A Lesson in Treaty (Mis)interpretation?
Last week marked a pivotal turning point in the development of Aboriginal law and the demarcation of federal-provincial jurisdiction. For the first time ever, the SCC was faced with the challenge of interpreting the James Bay and Northern Quebec Agreement (the Treaty) in its decision in Quebec (Attorney General) v. Moses, 2010 SCC 17. The former is a negotiated response to the Cree’s opposition to the construction of a hydro-electric generation project in the James Bay area that would negatively impact the environment and their way of life. Signed in November 1975, the Treaty set a precedent for Aboriginal participation rights and cooperative federalism. As LeBel and Deschamps JJ. noted in their dissent, the Treaty predates analogous environmental legislation currently in place. The primary issue regarding the Treaty was whether it precluded an environmental assessment by the federal government pursuant to the Canadian Environmental Assessment Act, S.C. 1992, c. 37 (CEAA). This decision will appeal to constitutional law enthusiasts because the SCC had to determine whether there was a conflict between the Treaty and federal law. Recall that fisheries are within federal jurisdiction, whereas the Treaty gives the province jurisdiction over environmental assessments. If the aforementioned is insufficient to whet your appetite, the majority and minority clashed over their interpretation of the parties’ intentions.
How Many Governments Does it Take to Screw in a Light Bulb?
The above title facetiously summarizes the gist of this case – a company wanted to build a mine in an area regulated by the Treaty, but the Quebec and federal governments disagreed over how many environmental impact assessments were required. Without concurrence on this issue, the requisite permit could not be issued by the federal government. The relevant provision of the Treaty that required interpretation by the SCC was s. 22.6.7, which states:
…a project shall not be submitted to more than one (1) impact assessment and review procedure unless such a project falls within the jurisdiction of both Quebec and Canada or unless such project is located in the part of the Territory and in part elsewhere where an impact review is required.
Quebec argued that the first portion of this provision meant that only one assessment was required. If Quebec had succeeded, that would mean that the CEAA, legislation that was enacted after the Treaty, would be precluded from requiring a second assessment. The federal officials inserted themselves into the equation after an impact study indicated that the project would negatively impact fish habitats, erase water bodies, and have other effects. The majority decision written by Binnie J. held that s. 22.6.7 as a whole did not preclude a second assessment pursuant to the CEAA. Further support was found in s. 22. 7.5, which states:
Nothing in the present Section shall be construed as imposing an impact assessment by the Federal government unless required by Federal law or regulation. However, this shall not operate to preclude Federal requirement for an additional Federal impact review process as a condition of the Federal funding of any development project. [Emphasis added].
Regardless of when the CEAA was enacted, it is still a federal law of general application. The federal government neither disrespected Aboriginal participatory rights, nor did it “unilaterally change the terms of the [Treaty],” as the dissent alleged. The parties to the Treaty are sophisticated and had the resources necessary to memorialize their intentions in the Treaty. If they meant to exclude subsequent legislation and or federal jurisdiction, then the parties should have expressly included those intentions in the text of the Treaty. A court cannot re-write an agreement as the dissent attempted to do so in its decision, simply because the “matter…[is] one of [the Cree’s] main concerns and had been the subject of difficult and intensive negotiations.” This analysis is modeled on the primacy of private ordering and the freedom of contract, which are not so different from aboriginal treaty interpretation. While the context of the formation of the agreement is a consideration in the interpretation of the agreement, as posited by the dissent, much of the emphasis is still on the actual wording of the agreement.
LeBel and Deschamps JJ. agreed with Quebec’s selective interpretation of s. 22.6.7, but it seems that their dissent was more influenced by the historical importance of the Treaty and the context in which it was negotiated. They were concerned that the Treaty was designed to guarantee Aboriginal participation and consultation, as well as avoid costly duplication of the assessment process. Working from this position, they interpreted the Treaty selectively based on their interpretation of the spirit of the Treaty as opposed to the intentions of the parties. In their interpretation of the Treaty, they wrote that the parties could not have intended that the assessment process include the regime under the CEAA because it was not in force at the time the Treaty was negotiated. As such, no other process is “required by Federal law or regulation” pursuant to s. 22.7.5. As mentioned above, this argument is questionable because the parties could have expressly excluded the federal assessment process. Another issue with this line of reasoning is that it has the potential to unjustifiably exempt the parties from all future federal legislation. The effect would be to prohibit the federal government from fulfilling its legislative function. With the alarming rate at which fish habitats and the environment in general are declining, the federal government must be able to respond to these problems through legislation. Although the dissent wrote that Binnie J. wanted to “add to the level of assessment without any evidence of a benefit for the public or an improvement on any aspect of the process provided in the [Treaty]” [emphasis added], the environment, or more specifically, the impact on fish habitats, is not an area where the SCC has any expertise. For whatever reasons that the federal officials at the Canadian Environmental Assessment Agency felt that a second assessment was required, those reasons are sufficient to justify a second assessment. Historic reasons alone cannot justify undermining express provisions which give the federal government the authority to regulate. The majority was correct to find in favour of the federal government and require that the mining project may not proceed without compliance with the CEAA‘s procedures.