[1993] 1 F.C. 501
A-1071-91
The Attorney General of Quebec (Appellant) (Intervener)
v.
The Eastmain Band and the Nemaska Band and the Mistassini Band and the Cree Regional Authority and the Grand Council of the Crees (of Quebec) and Chief Kenneth Gilpin and Deputy Chief Lawrence Jimiken and Chief Henry Mianscum and Philip Awashish (Respondents) (Applicants)
and
Raymond Robinson and The Honourable Jean Charest and The Honourable Tom Siddon and The Honourable Jean Corbeil and The Honourable John Crosbie (Mis en cause) (Respondents)
and
Hydro-Québec (Mise en cause) (Intervener)
Indexed as: Eastmain Band v. Canada (Federal Administrator) (C.A.)
Court of Appeal, Marceau, Décary and Létourneau JJ.A.—Montréal, October 13, 14, 15, 16; Ottawa, November 20, 1992.
Native peoples — 1975 James Bay and Northern Quebec Agreement confirming construction of hydroelectric project — According to its terms, Agreement confirmed by federal and provincial legislation — 1983 S.C.C. decision holding treaties and statutes relating to Indians to be liberally construed and ambiguities resolved in favour of Indians — Assuming Agreement treaty, principle should not be applied blindly to modern agreements — Historical reasons for development of principle considered — Aboriginals no longer vulnerable — Principles of statutory construction inapplicable as Agreement not statute, but legislated contract — In negotiating land agreements with Aboriginals, Crown must seek compromise between interests of Aboriginals and of society as whole — Fiduciary relationship requires good faith and reasonableness on both sides — To seek and interpret any ambiguity systematically in favour of Aboriginals would distort negotiation process — Aboriginals must be bound by informed commitment now in position to make.
Environment — 1975 James Bay and Northern Quebec Agreement confirming construction of hydro-electric development project — When commencement of steps preliminary to construction announced in 1990, Aboriginal parties sought to force Federal Administrator to trigger environmental review provided under Agreement, and under EARPGO, based on probable impact on areas under federal jurisdiction — Eastmain project part of Le Complexe La Grande — Subject to specific provisions in Agreement exempting Le Complexe from environmental regime — Essence of project same as that contemplated in 1975 — Not substantial modification rendering it future project under Agreement and subject to environmental review regime — Under provincial jurisdiction — One review procedure rule; parrallel reviews only where project, not consequences, falling within both jurisdictions or partly outside Agreement Territory — EARPGO not applicable as s. 3 providing environmental assessment procedure shall take place before irrevocable decisions taken — James Bay and Northern Québec Native Claims Settlement Act irrevocable consent to construction of Le Complexe — Conditions for application of EARPGO not fulfilled — No federal law or other affirmative duty imposing obligation on Ministers to undertake initial assessment.
This was an appeal by the Attorneys General of Quebec and Canada and Hydro-Québec against an order requiring the respondent Ministers to refer the Eastmain hydro-electric development project (the Project) for the public environmental review provided in the Environmental Assessment and Review Process Guidelines Order (EARPGO). The Aboriginal parties cross appealed from the dismissal of an application for a writ of mandamus to force the Federal Administrator to trigger the environmental review regime provided in section 22 of The James Bay and Northern Quebec Agreement. The 1975 Agreement was a comprehensive land claim agreement between Québec, Canada, Hydro-Québec and the Cree and Inuit communities of Quebec confirming the construction of Le Complexe La Grande, which included the Eastmain hydro-electric development project then being studied. The Project included construction of a powerplant, dam, spillway, dykes and reservoir. In 1990 Quebec authorized the commencement of preliminary studies for the Project. The Aboriginals argued that the Project will have an environmental impact on matters under federal jurisdiction (fisheries, navigable waters, migratory birds and Indians) and sought federal intervention. The Motions Judge held that the Project was part of Le Complexe La Grande, and was therefore subject to paragraph 8.1.2 of the Agreement, exempting Le Complexe from the environmental review regime established in section 22. He held, however, that the Project was subject to EARPGO, and granted mandamus against the Ministers.
The issues were (1) what principles of interpretation should apply to the Agreement; (2) whether the Project was part of the Complexe and exempt from the environmental review regime; (3) whether the Project was a “substantial modification” to Le Complexe rendering it a future project under section 8.1.3 and therefore subject to the environmental review regime; (4) if so, whether the Project is under provincial jurisdiction and outside the Federal Administrator's jurisdiction; (5) whether EARPGO applied to the Project; (6) whether the conditions for the application of EARPGO had been fulfilled.
Held, the appeal should be allowed; the cross appeal should be dismissed.
(1) In 1983 the Supreme Court of Canada held that treaties and statutes relating to Indians should be liberally construed and ambiguities resolved in favour of the Indians. Assuming the Agreement is a treaty, courts must not blindly apply to modern agreements principles laid down for the analysis of treaties entered into in an earlier era. The principle that ambiguities must be construed in favour of the Aboriginals rests historically on the vulnerability of the Aboriginal parties, who were uneducated, compelled to negotiate with parties in a superior bargaining position, in languages and with legal concepts foreign to them and without adequate representation. In the present case there was no vulnerability. The Agreement was the product of long and difficult negotiations. In recent decisions, the Supreme Court, recognizing that the Indians now have greater negotiation skills than formerly, has favoured a realistic interpretation of documents so as to respect the intention and interests of all the signatories.
In any event, the issue herein did not concern a “statute relating to Indians”. While the Agreement was confirmed by legislation, it is fundamentally a “legislated contract ... that derives all of its legal force even as a contract from the laws which are to give it effect and validity”. The federal Act does not express the “will of Parliament”, but that of the parties to the Agreement. As to the principle of construing ambiguities in favour of the Aboriginal parties because of the fiduciary relationship between them and the Crown, in negotiating land agreements with the Aboriginals, the Crown must seek a compromise between the interest of the Aboriginals and that of the whole of society. A fiduciary relationship requires good faith and reasonableness on both sides and presumes that each party respects the obligations that it assumes toward the other. To interpret ambiguities systematically in favour of the Aboriginals would encourage the use of vague language so that they might apply to the courts, hopefully to gain more than what had been obtained through negotiation. This would distort the whole negotiation process. When modern treaties are at issue, the Aboriginals must be bound by the informed commitment that they are now in a position to make.
(2) The Motions Judge correctly held that the Project was an integral part of Le Complexe and therefore not subject to the environmental review regime established by the Agreement. That the parties intended that Le Complexe, construction of which was under way and might continue for decades, would not be subject to the regime established by the Agreement was indicated by the Aboriginals' acknowledgment that some of the potential impacts of the Complexe could not be determined at that time and that remedial measures would be studied during the construction period, agreement not to take any actions which would prevent the construction of Le Complexe, and release of Hydro-Québec from all claims that might arise from the construction, maintenance and operation of Le Complexe in consideration of benefits received by them.
(3) There was no ground for interfering with the Motions Judge's finding of fact that the Project was not a “substantial modification” rendering it a future project and subject to the environmental regime under section 8.1.3. His finding was based on the evidence. The essence of the Project announced in 1990 was the same as that contemplated in 1975. As construction could take decades, it may also be adapted to new technologies, without altering the essence of the compromise reached in respect of it.
(4) The Federal Administrator does not exercise jurisdiction over the project which is under provincial jurisdiction. The Aboriginals argued that once a project under provinical jurisdiction has an environmental impact in an area under federal jurisdiction, both the federal and provincial Administrators have the power and duty to intervene and ultimately to block the project. There were two obstacles to this argument. First, section 22 covers any “development project which might affect the environment or people of the Territory”. Therefore any development project has implications in at least one area of federal jurisdiction (Indians and lands reserved for the Indians) and almost certainly in an area of shared jurisdiction (environment). Furthermore, any development project in Quebec will have an impact on areas of provincial jurisdiction, i.e. natural resources, public lands, timber and wood, local works and undertakings and matters of a purely local or private nature. The parties to the Agreement were not so careful to distinguish between the respective roles of each government, only to reach a solution which gives each of them equal decision-making power over every project and automatically creates an overlap and total impasse the moment one government authorizes a project and the other does not. Second, section 22.6.7 provides that the parties may agree to combine the two impact review bodies provided that a project shall not be submitted to more than one impact assessment and review procedure unless it is within jurisdiction of both Canada and Quebec or is located in part in the Territory and in part elsewhere. The parties clearly intended to avoid any overlap. The rule is one review, the exception two parallel reviews, but only where the project and not its consequences falls within both jurisdictions or where it is partly outside the Agreement Territory. The textual arguments also support a finding of a single review, under provincial jurisdiction, and of this review being conducted by the provincial Review Committee and the ultimate decision being made by the provincial Administrator or, if need be, by the Lieutenant-Governor in Council of Quebec.
(5) EARPGO does not apply to the Project. Section 8.18 provides that the laws of Canada from time to time in force shall continue to apply to the project. This requires that subsequent law be applicable to the development, and such subsequent law must meet the requirements of section 22.2.3 which provides that all federal and provincial laws of general application respecting environmental and social protection shall apply to the extent that they are not inconsistent with the provisions of the Agreement. The Agreement makes exhaustive provision for environmental studies to which development projects in Agreement territory would be subject. The environmental review regime represents the expression of the consensus reached by the parties, who expressly intended that Le Complexe would be exempt from the application of this regime, just as they intended that the provincial and federal legislation which was intended to give effect to the Agreement would provide that where other legislation is inconsistent with the provisions of the Agreement, the Agreement would prevail. In the context of this consensus, the Government of Canada formally authorized the construction of Le Complexe and legislatively confirmed this consent by adopting the James Bay and Northern Quebec Native Claims Settlement Act. This was an irrevocable consent to the construction of Le Complexe, so that the EARPGO does not apply, since section 3 thereof provides that the environmental assessment procedure shall take place “before irrevocable decisions are taken”. Since the irrevocable decision was taken in 1975, EARPGO, which was adopted in 1984, cannot apply.
(6) The conditions which trigger the application of EARPGO were not fulfilled as against any of the Ministers. The Motions Judge's finding that the conditions had been fulfilled was made before the Supreme Court of Canada decision in Friends of the Oldman River Society v. Canada (Minister of Transport) and the Federal Court of Appeal decision in Carrier-Sekani Tribal Council v. Canada (Minister of the Environment), which set out different guidelines for the application of EARPGO than those followed by the Motions Judge. The review process is preliminary to the making of a decision by an initiating Minister. It should be instigated only where carrying out the project is subject to prior authorization from a federal Minister who has the power and duty, based on a federal statute or on another affirmative federal duty, to give or refuse permission or to impose conditions for carrying out the project.
No federal law or other affirmative duty imposes an obligation on the Minister of Indian Affairs and Northern Development to make a decision with respect to the carrying out of the Project. The mere possibility of environmental impact on matters relating to Indians and lands reserved for the Indians is not sufficient for the EARPGO to apply. Similarly, the general responsibilities of the Minister of the Environment for environmental issues alone does not trigger application of EARPGO or make the Minister the “initiating minister” within the meaning of EARPGO. The Supreme Court of Canada held in Oldman River that the Fisheries Act did not trigger application of EARPGO. Even if there were an affirmative duty under subsection 35(2) to regulate, and if it did apply, the Aboriginals have not identified any fact which would trigger such an obligation. Section 35 may only apply to the carrying on of “any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat”. As the Project is still at the construction stage, it is premature to speak about carrying on an undertaking. If construction of the Project is covered by section 35, that section is intended to protect “fish habitat”, defined as “spawning grounds and nursery rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes”. There were no allegations that construction of the Project posed any danger to fish habitat. The navigability of a river is an elementary condition for the application of the Navigable Waters Protection Act, (imposing an affirmative duty to regulate on the Minister of Transport). The navigability of a river is a question of fact and law. There must be evidence establishing that a river is navigable. As the records herein did not permit such a conclusion, the Minister of Transport cannot exercise any decision-making power.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act approving the Agreement concerning James Bay and Northern Québec, S.Q. 1976, c. 46.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91, 92, 92A.
Environment Quality Act, R.S.Q., 1977 c. Q-2, ss. 22 (as am. by S.Q. 1988, c. 49, s. 4), 153 et seq.
Environmental Assessment and Review Process Guidelines Order, SOR/84-467. s. 3.
Federal Court Rules, C.R.C., c. 663, R. 412(2).
Fisheries Act, R.S.C., 1985, c. F-14, ss. 2, 20, 21, 22, 29, 30, 35, 37, 40 (as am. by S.C. 1991, c. 1, s. 10).
Indian Act, R.S.C. 1970, c. I-6, s. 87.
Interpretation Act, R.S.C., 1985, c. I-21, ss. 2, 3, 33.
Interpretation Act, R.S.Q. 1977, c. I-16, s. 54.
James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-77, c. 32.
Navigable Waters Protection Act, R.S.C., 1985, c. N-22, s. 5.
Order in Council 1371-90 (1990), 122 G.O.Q. II 3746.
Regulation respecting the administration of the Environment Quality Act, R.R.Q. 1981, c. Q-2, r. 1.
The James Bay and Northern Québec Agreement, ss. 8, 22.
CASES JUDICIALLY CONSIDERED
APPLIED:
Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; (1992), 88 D.L.R. (4th) 1; [1992] 2 W.W.R. 193; 84 Alta. L.R. (2d) 129; 3 Admin. L.R. (2d) 1; 7 C.E.L.R. (N.S.) 1; 132 N.R. 321; Carrier-Sekani Tribal Council v. Canada (Minister of the Environment), [1992] 3 F.C. 316 (C.A.); Cree Regional Authority v. Canada (Federal Administrator), [1991] 3 F.C. 533; (1991), 81 D.L.R. (4th) 659; 1 Admin. L.R. (2d) 173 (C.A.); Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; (1990), 71 D.L.R. (4th) 193; [1990] 5 W.W.R. 97; 67 Man. R. (2d) 81; [1990] 3 C.N.L.R. 46; 110 N.R. 241; 3 T.C.T. 5219; R. v. Sioui, [1990] 1 S.C.R. 1025; (1990), 30 Q.A.C. 287; 70 D.L.R. (4th) 427; 56 C.C.C. (3d) 225; [1990] 3 C.N.L.R. 127; 109 N.R. 22; New Zealand Maori Council v Attorney-General, [1987] 1 NZLR 641 (C.A.).
DISTINGUISHED:
Nowegijick v. The Queen, [1983] 1 S.C.R. 29; (1983), 144 D.L.R. (3d) 193; [1983] 2 C.N.L.R. 89; [1983] CTC 20; 83 DTC 5041; 46 N.R. 41.
CONSIDERED:
R. v. White and Bob (1964), 50 D.L.R. (2d) 613; 52 W.W.R. 193 (B.C.C.A.).
REFFERED TO:
Cree Regional Authority v. Canada (Federal Administrator), [1992] 1 F.C. 440; (1991), 84 D.L.R. (4th) 51; 47 F.T.R. 251 (T.D.); Bell v. Quebec (Corporation of) (1879-80), 5 App. Cas. 84 (P.C.); Sim E. Bak v. Ang Yong Huat, [1923] A.C. 429 (P.C.); Attorney General of Quebec v. Fraser (1906), 37 S.C.R. 577; confd sub nom. Wyatt v. Attorney-General of Quebec, [1911] A.C. 489 (P.C.); Bertram S. Miller Ltd. v. R., [1986] 3 F.C. 291; (1986), 31 D.L.R. (4th) 210; 28 C.C.C. (3d) 263; 1 C.E.L.R. (N.S.) 16; 69 N.R. 1 (C.A.); Caterpillar Tractor Co. v. Babcock Allatt Limited, [1983] 1 F.C. 487; (1982), 67 C.P.R. (2d) 135 (T.D.); P.G. du Québec c. Société du parc industrielle du centre du Québec, [1979] C.A. 357.
AUTHORS CITED
Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed., Cowansville, Qué.: Éditions Yvon Blais Inc., 1991.
Lord, G. Le Droit québécois de l'eau, Centre de recherche en droit public, Université de Montréal, Éditeur officiel du Québec, 1977.
La Forest, G. V. and Associates. Water Law in Canada—The Atlantic Provinces, Regional Economic Expansion, 1973.
APPEAL from an order requiring the respondent Ministers to refer the Eastmain hydro-electric development project for the public environmental review provided in the Environmental Assessment and Review Process Guidelines Order and cross appeal from the dismissal of an application for a writ of mandamus to force the Federal Administrator to trigger the environmental review regime provided in section 22 of The James Bay and Northern Quebec Agreement (Eastmain Band v. Robinson (1991), 7 C.E.L.R. (N.S.) 230; [1992] 1 C.N.L.R. 90; 49 F.T.R. 241 (F.C.T.D.)). Appeal allowed; cross appeal dismissed.
COUNSEL:
Jean Bouchard and Pierre Lachance for appellant (intervener).
James A. O'Reilly, Peter W. Hutchins, Franklin S. Gertler, Kathleen Lawand for respondents (applicants).
René LeBlanc and Jean-Marc Aubry for mis en cause (respondents) (Raymond Robinson et al.).
Sylvain Lussier and Michel Yergeau for mise en cause (intervener) (Hydro-Québec).
SOLICITORS:
Attorney General of Quebec, Montréal, for appellant (intervener).
Hutchins, Soroka & Dionne, Montréal, and O'Reilly & Associés, Montréal, for respondents (applicants).
Deputy Attorney General of Canada for mis en cause (respondents) (Raymond Robinson et al.).
Desjardins, Ducharme, Montréal, and Lavery, de Billy, Montréal, for mise en cause (intervener) (Hydro-Québec).
The following is the English version of the reasons for judgment rendered by
Marceau J.A.: My conclusions do not differ from those expressed by Décary J.A. in his reasons for judgment.
I also feel that the Aboriginal parties' counter-appeal cannot succeed.
It seems clear to me on reading The James Bay and Northern Québec Agreement that the parties to that Agreement intended to make the said Eastmain 1 Project an integral part of the Complexe La Grande (1975), however little progress may have been made at the time on studies to implement this subsidiary hydro-electric project, and hence however little detail may have been available at that time on the technical description of it. As shown by the Trial Judge [(1991), 7 C.E.L.R. (N.S.) 230 (F.C.T.D.)] and accepted by my brother Judge without reservation, reading paragraphs 8.1.2 and 8.1.3 of the Agreement together makes it clear that it could not have been otherwise; and moreover, the evidence as presented does not support the argument that what is to be built now is so different from what was planned and contemplated at the outset that the Project actually constitutes an “addition and/or substantial modification” to the Complexe within the meaning of paragraph 8.1.3 of the Agreement. It is thus clear that, in view of the provisions of paragraph 8.1.2 of the Agreement, the Eastmain 1 Project is not covered by the environmental procedures contained in section 22. The Trial Judge was accordingly right to refuse to order the Federal Administrator, responsible in part for implementing the Agreement, to perform any function derived from the provisions of section 22.
On the contrary, I feel like Décary J.A. that the appeals by the attorneys general and Hydro-Québec are well-founded.
In my opinion, the Trial Judge could not order the respondent ministers to apply to the Eastmain 1 Project the provisions of the federal Environmental Assessment and Review Process Guidelines Order [SOR/84-467]. My reason for this is simple. It is now accepted, since the Supreme Court's judgment in Oldman River,[1] as analyzed by this Court in Carrier-Sekani,[2] that the Order applies to any federal Minister required to assume some responsibility regarding a construction project which may have repercussions on areas under federal jurisdiction, responsibility which will exist if the Minister has any positive regulatory power over such project. It was recognized at the time of the Agreement, with the unqualified acquiescence of the federal government, that all governmental approval necessary for carrying out the Complexe La Grande (1975), and so including the Eastmain 1 Project, had been given (subsection 8.18, paragraph 2, read together with paragraph 8.1.2, paragraph 3), with the result that no federal Minister can still be called on to exercise any responsibilities capable of triggering the Order. Moreover, as my brother Judge says, even disregarding this previously confirmed approval, it has not been shown that any of the respondent ministers could have any positive regulatory power affecting the Eastmain 1 Project. It is true that the intervention of the Minister of Fisheries might be required if it turns out that the survival of fish is endangered (section 35 of the Fisheries Act),[3] and undoubtedly also that of the Minister of Transport if it were to be established that the Eastmain River must be regarded as navigable within the meaning of section 91 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] (section 5 of the Navigable Waters Protection Act);[4] but the duty on either of these ministers to act and act now is certainly not clear enough to be a basis for the issuance of the writ of mandamus sought.
I would therefore dispose of the appeals and counter-appeal as Décary J.A. suggests.
* * *
The following is the English version of the reasons for judgment rendered by
Décary J.A.:
Facts and proceedings
On November 11, 1975, Quebec, Canada, Hydro-Québec and the Cree and Inuit communities of Quebec, together with other parties, signed a land claim agreement known and designated as The James Bay and Northern Québec Agreement (the Agreement). By the terms of the Agreement itself (section 2.5), it had to be approved, given effect to and declared valid by an Act of the Parliament of Canada and by an Act of the National Assembly of Quebec; this was done by the James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-77, c. 32, and the Act approving the Agreement concerning James Bay and Northern Québec, S.Q. 1976, c. 46, respectively.[5]
The Agreement put an end to the legal proceedings brought against the first phases of the development of northern Quebec and, inter alia, confirmed the construction of Le Complexe La Grande (the Complexe) which, according to the Attorney General of Quebec (the appellant), included the Eastmain 1 (or EM 1) hydro-electric development project (the Project) then being studied.
On September 26, 1990, the Government of Quebec authorized the mise en cause/intervener, Hydro-Québec (Hydro-Québec) to [translation] “conduct the preliminary study for the Eastmain 1 hydro-electric development, and to carry out exploration, studies, scientific surveys and all other activities preceding the development” (Order in Council 1371-90, (1990), 122 G.O.Q. II, at pages 3746-3747).
Construction of the Project includes, inter alia, construction of a hydro-electric powerplant on the Eastmain River, a dam, a spillway and a number of dykes, as well as a reservoir of approximately 630 km2.
The place where the Project is to be constructed is located in the territory governed by the Agreement.
On May 14, 1991, the respondents/applicants (the Aboriginal parties), arguing the probable environmental impact of the Project on matters under federal jurisdiction such as fisheries, navigable waters, migratory birds, Indians and lands reserved for the Indians, served notice on the mis en cause/respondent Federal Administrator appointed under section 22 of the Agreement (the Administrator) and the four mis en cause/respondent Ministers (the Ministers) to fulfil the duties imposed on them under section 22, in the case of the Administrator, and under the Environmental Assessment and Review Process Guidelines Order (the Order) (SOR/84-467, 22 June 1984), in the case of the Ministers.
On June 6, 1991, the Aboriginal parties asked the Federal Court, Trial Division to issue a writ of mandamus to force the Administrator to trigger the procedure under the environmental review regime (the regime) provided in section 22 of the Agreement, and also to compel the Ministers to refer the Project for the public environmental review provided in the Order.
On October 2, 1991, Mr. Justice Rouleau allowed the motion in part [(1991), 7 C.E.L.R. (N.S.) 230 (F.C.T.D.)]. First, he concluded that the Project is part and parcel of Le Complexe La Grande (1975); that as such it must be subject to the specific provisions for the Complexe set out in the Agreement; and that, by virtue of the provisions of paragraph 8.1.2 of the Agreement, it is exempt from the regime. Accordingly, he dismissed the motion as it related to the Administrator.
Second, he concluded that the Project is subject to the Order and that in this case the conditions for the Order to apply had been fulfilled; accordingly, he ordered a writ of mandamus to issue against each of the four Ministers. However, he dismissed the Aboriginal parties' request that a public review be carried out, considering it premature at that point, and stated that he had no power to suspend the Project.
The Attorney General of Quebec (A-1071-91), the Attorney General of Canada (A-1072-91) and Hydro-Québec (A-1073-91) have appealed the portion of Mr. Justice Rouleau's judgment which was unfavourable to them. The Aboriginal parties have filed a cross appeal. All of these appeals were joined in this case (A-1071-91).
To facilitate reading and comprehension of the reasons which follow, I have followed the sequence of the conclusions reached by Mr. Justice Rouleau, regardless of whether they prompted an appeal or a cross appeal. I have further referred to each party by the same title throughout the reasons, the Attorney General of Quebec being described as the appellant, Hydro-Québec as Hydro-Québec, the Federal Administrator, Mr. Robinson, as the Administrator, the federal Ministers as the Ministers and the Aboriginal parties as the Aboriginal parties. The Administrator and the Ministers were represented by the Attorney General of Canada, to whom I will therefore make reference on occasion.
The questions raised
The questions raised by these appeals and this cross appeal, which I shall answer, may be formulated as follows:
On the first issue, the mandamus issued against the Federal Administrator under the Agreement
1. Is the Eastmain 1 project part of Le Complexe La Grande (1975) such that it is not, by virtue of the provisions of paragraph 8.1.2 of the Agreement, subject to the environmental regime established in section 22 of the Agreement? (cross appeal)
2. If the answer is yes, is the Project an “addition and/or substantial modification” to the Complexe such that it is, by virtue of the provisions of paragraph 8.1.3 of the Agreement, considered to be a future project and therefore subject to that environmental regime? (cross appeal)
3. If the Project is subject to the environmental regime established by the Agreement, is the process placed under the responsibility of the Federal Administrator inapplicable by virtue of the fact that it would be a project under provincial jurisdiction? (cross appeal)
On the second issue, the mandamus issued against the Ministers under the Order
4. Could the Guidelines Order be applied to the Project? (appeal)
5. If the answer is yes, have the conditions in which the Order is triggered been fulfilled in the case at bar with respect to one or all of the Ministers? (appeal)
Principles of interpretation of the Agreement
The Aboriginal parties spent considerable time arguing what they contended should be the principles of interpretation of an accord such as the Agreement, to which the Aboriginals are party. They contend the principle is that set out by Dickson J. [as he then was] as follows in Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at page 36:
It seems to me, however, that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.
Treaties
The appellant, Hydro-Québec and the Attorney General of Canada, assuming for the purposes of this case that the Agreement is a “treaty”, strictly speaking, on which point I shall express no opinion, argue that while the first element of this rule—liberal construction—applies in the case of a modern treaty, the second element—doubtful expressions should be construed in favour of the Indians—does not apply. The point which they dispute, to borrow the expression used by counsel for Hydro-Québec, is that the Aboriginals have a constitutional right to have any ambiguity resolved in their favour.
We must be careful, in construing a document as modern as the 1975 Agreement, that we do not blindly follow the principles laid down by the Supreme Court in analyzing treaties entered into in an earlier era. The principle that ambiguities must be construed in favour of the Aboriginals rests, in the case of historic treaties, on the unique vulnerability of the Aboriginal parties, who were not educated and were compelled to negotiate with parties who had a superior bargaining position, in languages and with legal concepts which were foreign to them and without adequate representation.[6]
In this case, there was simply no such vulnerability. The Agreement is the product of a long and difficult process of negotiation. The benefits received and concessions made by the Aboriginal parties were received and given freely, after serious thought, in a situation which was, to use their counsel's expression, one of “give and take”. All of the details were explored by qualified legal counsel in a document which is, in English, 450 pages long. The scope of the negotiations was such that, in subsection 25.5 of the Agreement, Quebec undertook to pay to the James Bay Crees and the Inuit of Quebec, “as compensation in respect to the cost of the negotiations”, the sum of 3.5 million dollars. We have come a long way indeed from the “uneducated Savages” referred to by Norris J.A. in White and Bob, supra, footnote 6. The comments of Lamer J., who was not yet Chief Justice, in Sioui provide a good illustration of this evolution:
The Indian people are today much better versed in the art of negotiation with public authorities than they were when the United States Supreme Court handed down its decision in Jones. [Sioui, supra, footnote 6 at page 1036.]
Moreover, the recent pronouncements of the Supreme Court have already encouraged a certain realism and a respect for the intention and interests of all the signatories, even in relation to historic treaties:
Even a generous interpretation of the document ... must be realistic and reflect the intention of both parties, not just that of the Hurons. The Court must choose from among the various possible interpretations of the common intention the one which best reconciles the Hurons' interests and those of the conqueror. [Sioui, supra, footnote 6 at page 1069.]
Defining the common intent of the parties on the question of territory in this way makes it possible to give full effect to the spirit of conciliation, while respecting the practical requirements of the British. [Sioui, supra, footnote 6 at page 1071.]
Statutes relating to Indians
The Aboriginal parties contend that the principle of construing ambiguities favourably also applies when statutes relating to Indians are to be interpreted, and that the Agreement, by virtue of being adopted by the Parliament of Canada, is a statute relating to Indians.
This rule, which is set out in Nowegijick, supra, in which the issue was the interpretation of section 87 of the Indian Act [R.S.C. 1970, c. I-6], seems to me to have been substantially diluted by the Supreme Court in Mitchell, supra, footnote 6, in which La Forest J. stated, at page 143:
But as I view the matter, somewhat different considerations must apply in the case of statutes relating to Indians. Whereas a treaty is the product of bargaining between two contracting parties, statutes relating to Indians are an expression of the will of Parliament. Given this fact, I do not find it particularly helpful to engage in speculation as to how Indians may be taken to understand a given provision. Rather, I think the approach must be to read the Act concerned with a view to elucidating what it was that Parliament wished to effect in enacting the particular section in question. This approach is not a jettisoning of the liberal interpretive method.
At the same time, I do not accept that this salutary rule that statutory ambiguities must be resolved in favour of the Indians implies automatic acceptance of a given construction simply because it may be expected that the Indians would favour it over any other competing interpretation. It is also necessary to reconcile any given interpretation with the policies the Act seeks to promote.
In any event, the issue in this case does not, strictly speaking, concern a “statute relating to Indians”. While the Agreement has been confirmed by legislation, as this Court has concluded (see Cree Regional Authority, supra, footnote 5), 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” (Cree Regional Authority, supra, footnote 5 at pages 551-552). 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.
The fiduciary relationship
The Aboriginal parties further contend that the principle of construing ambiguities in their favour derives from the fiduciary relationship which they contend exists between them and the Crown. Here again, we must be careful not to speak in absolute terms. When the Crown negotiates land agreements today with the Aboriginals, it need not and cannot have only their interests in mind. It must seek a compromise between that interest and the interest of the whole of society, which it also represents and of which the Aboriginals are part, in the land in question. This brings us back, in other words, to what the Supreme Court had to say in Sioui.
Even if we ascribe a fiduciary character to the relationship between the Crown and the Aboriginals, it requires good faith and reasonableness on both sides and presumes that each party respects the obligations that it assumes toward the other. On this point, I adopt the comments of Cooke P., of the New Zealand Court of Appeal, in New Zealand Maori Council v Attorney-General, [1987] 1 NZLR 641, at page 664, with respect to a treaty dating from 1840:
In this context the issue becomes what steps should be taken by the Crown, as a partner acting towards the Maori partner with the utmost good faith which is the characteristic obligation of partnership, to ensure that the powers in the State-Owned Enterprises Act are not used inconsistently with the principles of the Treaty. It was argued for the applicants that whether in any instance the transfer of a particular asset would be inconsistent with the principles of the Treaty is a question of fact. That is so, but it does not follow that in each instance the question will admit of only one answer. If the Crown acting reasonably and in good faith satisfies itself that known or foreseeable Maori claims do not require retention of certain land, no principle of the Treaty will prevent a transfer.
...
What has already been said amounts to acceptance of the submission for the applicants that the relationship between the Treaty partners creates responsibilities analogous to fiduciary duties. Counsel were also right, in my opinion, in saying that the duty of the Crown is not merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable. There are passages in the Waitangi Tribunal's Te Atiawa, Manukau and Te Reo Maori reports which support that proposition and are undoubtedly well-founded. I take it as implicit in the proposition that, as usual, practicable means reasonably practicable. It should be added, and again this appears to be consistent with the Tribunal's thinking, that the duty to act reasonably and in the utmost good faith is not one-sided. For their part the Maori people have undertaken a duty of loyalty to the Queen, full acceptance of her Government through her responsible Ministers and reasonable co-operation. [My emphasis.]
Thus while the interpretation of agreements entered into with the Aboriginals in circumstances such as those which prevailed in 1975 must be generous, it must also be realistic, reflect a reasonable analysis of the intention and interests of all the parties who signed it and take into account the historical and legal context out of which it developed. To seek ambiguities at all costs—and there will always be room for this in documents of such magnitude—and to interpret any ambiguity systematically in favour of the Aboriginal parties, would be to invite those parties to use the vaguest possible terms in the hope that they might then apply to the courts and the certainty that, by so doing, they would gain more than the actual fruit of the negotiations. This sort of approach would distort the entire process of negotiating treaties, and the result would be that the courts, on the pretext of interpreting the terms of the compromise reached, would renegotiate that compromise for the benefit of the Aboriginal parties and to the detriment of the governments which, it must be recalled, are accountable to the public as a whole and not only to the Aboriginals. In all fairness to all the contracting parties, how could a court, faced with such an important compromise as that set out in the Agreement, claiming to find ambiguity, put the “concessions” made by the Aboriginals back on the table without also putting the benefits they have obtained back on the table as well?
When it is modern treaties that are at stake, the Aboriginal party must now, too, be bound by the informed commitment that it is now in a position to make. No serious and lasting political compromise or business agreement can be entered into in an atmosphere of distrust and uncertainty. Thus La Forest J. stated in Mitchell:
I think it safe to say that businessmen place a great premium on certainty in their commercial dealings, and that, accordingly, the greatest possible incentive to do business with Indians would be the knowledge that business may be conducted with them on exactly the same basis as with any other person. Any special considerations, extraordinary protections or exemptions that Indians bring with them to the market-place introduce complications and would seem guaranteed to frighten off potential business partners. [Supra, footnote 6 at page 147.]
I also think it safe to say that it is in the interests of the Aboriginals themselves to interpret the agreements which they sign today in such a way that the other signing parties will not feel themselves at the mercy of constant attempts to renegotiate in the courts.
Question 1: Is the Eastmain 1 project part of Le Complexe La Grande (1975) such that it is not, by virtue of the provisions of paragraph 8.1.2 of the Agreement, subject to the environmental regime established in section 22 of the Agreement? (cross appeal)
The Motions Judge concluded that the Project is part of the Complexe and that, by virtue of the provisions of paragraph 8.1.2,[7] it is not subject to the regime. This Court is not bound in all respects by this conclusion, which is of both fact and law, but I have no difficulty in adopting it.
From all appearances, the parties to the Agreement intended that the Complexe, construction of which was under way and might go on until at least December 31, 1996 (paragraph 25.1.13), would have a unique status and would not be subject to the regime established by the Agreement. Clearly, their intention was to exempt both what was then built and what would be built over the years from that regime, to the extent, as regards future construction, that it was substantially consistent with the description of it given in Schedule 1 of section 8. I acknowledge that this was a very long term commitment, but the Aboriginal parties agreed to it with full knowledge of the facts, and agreed, in paragraph 8.9.1, to the fact that some of the potential impacts of the Complexe “cannot be determined at this time” and “that remedial measures shall need to be studied, planned and executed during the construction and operation period” of the Complexe. They had themselves, in paragraph 8.1.2, further agreed “not to take any actions whatsoever which would prevent the construction of the said complex.” Moreover, in subsection 8.17, “[i]n consideration of and subject to the benefits and undertakings” in their favour, they released Hydro-Québec “in respect to Le Complexe La Grande (1975) … of all claims, damages, inconvenience and impacts of whatever nature … that may be caused by the construction, maintenance and operation” of the Complexe. Their undertaking and long term release were in proportion to the favours granted to them, and they extended even to the maintenance and operation phases of the Complexe; this indicates the point to which the years did not matter to them.
The expressions used by the parties to the Agreement in section 8 and Schedule 1 of that section clearly indicate that the Project forms part of the Complexe. In fact, “EM-1” is mentioned in paragraph 8.1.2, which is entitled “Le Complexe La Grande (1975)”. The words “in whole or in part, with or without LA-1 and EM-1, at their option” are meaningless unless EM-1 is part of the Complexe. The “whole” or “part” includes EM-1, if Hydro-Québec so wishes and at whatever time Hydro-Québec may wish, because the components of the Complexe include those which “are constructed” both now and in future (“sont ou seront construits” in the French version of the Agreement), as well as those which “shall substantially conform” (“doivent ou devront” in the French version of the Agreement). This definition is undeniably both present and prospective.
There is more. In the area of hydro-electricity, the Agreement provides two types of hydroelectric developments: “Le Complexe La Grande (1975)” in paragraph 8.1.2, and “Other Projects” in paragraph 8.1.3.[8]. These “Other Projects” are “future” projects. Two of them are “known”: the N.B.R. Complex and Great Whale Complex. If EM-1, a known project, had been intended to be considered a future project, it would have had to be put in paragraph 8.1.3 rather than paragraph 8.1.2.
I further note that the expression “Complex” in paragraph 8.1.3 refers to hydro-electric powerplant development on several rivers and is not restricted to a single powerplant developed on a single river.
Subsection 8.18[9] refers to the “project and its components, as presently described in Schedule 1” (my emphasis). What do we find in Schedule 1? A title, which reads as follows: “Le Complexe La Grande (1975), Technical Description, October 20, 1975”. A category, entitled “Other Powerplants”, which necessarily deals with other powerplants in the Complexe, and which specifies that EM 1 is one “of further hydroelectric development projects on the rivers and tributaries of the La Grande Complexe”. A plate, Plate No. 2, headed “Map and Profiles, Complexe La Grande”, on which “Site EM-1” is drawn, with its dykes, and illustrating the [translation] “longitudinal profile from LG-2 to EM-1 (Powerstation)” and its elevation (935 feet), and showing the [translation] “contribution of the basins” of the Complexe, including the Eastmain basin (15,550 square miles). The Aboriginal parties made much of note 1, found at the bottom of the Plate, which reads as follows: [translation] “The EM-1 and LA-1 powerstations are not part of Le Complexe La Grande and are only at the preliminary study stage”. This note does not have the significance attributed to it by the Aboriginal parties. It simply means, in my opinion, that on October 20, 1975 (the date of the description), no final decision had yet been made with respect to the construction of these powerstations in the context of Le Complexe La Grande (1975). I would further point out that note 3, which relates specifically to the elevation of EM-1, reads as follows: [translation] “value subject to modification according to the results of detailed studies”, which confirms that detailed studies were then under way.
Paragraph 25.1.13, which deals with the terms of payment of the compensation to be paid to the Aboriginals and the schedule of payments, contains the words “Le Complexe La Grande (1975) exclusive of Laforge-1 (LA-1) and Eastmain-1 (EM-1)”. It seems to me that one only excludes something that would otherwise be included.
The Aboriginal parties pointed to some variations between the French and English versions of the Agreement, but none of them appeared to me to be significant.
Finally, and to counter the arguments of the Aboriginal parties to the effect that they could not in advance waive what they did not know—an argument which does not stand up in light of the passages examined above—Hydro-Québec introduced in evidence a map used in 1974 [translation] “for the purposes of the discussions with the aboriginals” which bears the signature of an Aboriginal representative. This map describes the “EM-1 powerstation” with its “spillway”.
In short, the Motions Judge was correct in concluding that the EM-1 project was at that time considered to be an integral part of Le Complexe La Grande and that the technical description thereof was [at page 236] “as adequate and complete a technical description of the EM-1 Project as can be expected, considering that it was still under study.” The Project, as part of the Complexe, is therefore not subject to the regime established by the Agreement, subject, of course, to the answer to the following question.
Question 2: If the answer is yes, is the Project an “addition and/or substantial modification” to the Complexe such that it is, by virtue of the provisions of paragraph 8.1.3 of the Agreement, considered to be a future project and therefore subject to that environmental regime? (cross appeal)
However, the Aboriginal parties submit, if the Project is part of the Complexe, it is an “addition and/or substantial modification” to the Complexe and, by the operation of paragraph 8.1.3, it loses the exemption that it had earned under paragraph 8.1.2.
The Motions Judge said that he disagreed with this argument. This time, we have a finding of fact, which could only be challenged in this Court if it were shown that it was patently unreasonable. The Aboriginal parties have failed in this task. Hydro-Québec has clearly established that the essence of the Project announced in 1990 was the same as was contemplated in 1975. Meagre and terse though the 1975 description of the Project being studied may have been, nonetheless this essential information was known and described. The changes made during the study to a number of dykes, the maximum retention level of the reservoir and the maximum marling could not be considered to be a “substantial modification” within the meaning of paragraph 8.1.3. By adopting the test of “substantial conformity”, the parties intended to take a realistic position in respect of the actual long-term construction of the components of the Complexe. The Complexe is to be constructed over a period of decades, and so it may also be adapted to new technologies, but still without the essence of the compromise reached in respect of it being altered.
The conclusion of the Motions Judge was based on the evidence. There is no ground for interfering.
Question 3: If the Project is subject to the environmental regime established by the Agreement, is the process placed under the responsibility of the federal Administrator inapplicable by virtue of the fact that it would be a project under provincial jurisdiction? (cross appeal)
The Court finds itself here in an unusual position, to say the least. This case was heard in the first instance at the same time as a motion in which the Aboriginal parties sought to have a writ of mandamus issued against the Federal Administrator for the Great Whale project. The Motions Judge allowed the motion on September 10, 1991 (Cree Regional Authority v. Canada (Federal Administrator), [1992] 1 F.C. 440 (T.D.)) (the Great Whale case) and his decision was appealed. In the reasons for the decision which he rendered in the present case on October 2, 1991, the Motions Judge incorporated some of the reasons for his decision in the Great Whale case, with the result that in some respects, while this Court is not seized with the judgment in that case, it is seized with part of the reasoning which led to it.
In order to succeed in their cross appeal, the Aboriginal parties found it necessary, inter alia, to argue again before us the same thing they had successfully argued in the Great Whale case. Conversely, in order to have the cross appeal dismissed, Hydro-Québec and the Attorney General of Canada had to argue before us that the Motions Judge erred on September 10, 1991 in deciding that the Federal Administrator was required to inquire into a project under provincial jurisdiction.
Since I conclude on another point that the Project is not subject to the regime, I could dispense with answering this third question. However, in a case such as this where the outcome of one question depends on the answer given to the preceding question, it may be in the interest of the proper administration of justice to proceed as if that answer were wrong. The parties devoted considerable time and energy to debating this third question, which I could, strictly speaking, have decided to answer first. Accordingly, in the circumstances, I have decided to answer it.
At the outset, section 22, in paragraph 22.1.1 thereof, defines the word “Administrator”:
22.1.1 “Administrator” shall mean:
(i) In the case of matters respecting provincial jurisdiction, the Director of the Environmental Protection Service or his successor, or any person or persons authorized from time to time by the Lieutenant-Governor in Council to exercise functions described in this Section.
(ii) In the case of matters involving federal jurisdiction, any person or persons authorized from time to time by the Governor in Council to exercise functions described in this Section.
(iii) In the case of proposed development in Category 1, the Cree Local Government Administrator responsible for the protection of the environment.
In order properly to understand the role of these administrators, it will be useful to provide an outline of what happens when a proponent such as Hydro-Québec comes in with a project under provincial jurisdiction, in this case a hydro-electric development project which, under the terms of Schedule 1 itself, is automatically subject to the assessment procedure.
The assessment procedure established by the Agreement consists of three stages. In the first stage, the proponent submits to the Administrator (one or the other or both of them, or even the third … this is the question) the preliminary information concerning its proposed development (22.5.11). The Administrator transmits this information to the Evaluating Committee (22.5.12), which recommends the extent of impact assessment and whether or not a preliminary and/or a final impact statement should be done (22.5.14). Armed with these recommendations, the Administrator alone decides whether to do an assessment and review (22.5.4, 22.5.14) and, where necessary, gives instructions or makes the appropriate recommendations to the proponent (22.5.4, 22.5.16). The proponent then prepares, in conformity with Schedule 3, a statement of the environmental and social impacts (“impact statement”), “especially those on the Cree populations potentially affected” (22.6.8). This report must provide considerable detail as to the impact of the project on, inter alia, land and water vegetation and fauna, harvesting of wild life resources and social conditions, and must “equally consider their ecological relationships, their interaction, and when appropriate, their scarcity, sensitivity, productivity, variety, evolution, location, etc.”
Then the second stage begins. The proponent submits its impact statement to the Administrator, who transmits it forthwith “to the [provincial] Review Committee or the [federal] Review Panel” (22.6.10), which transmits (or transmit, this again being the question) it in turn to the Cree Regional Authority (22.6.11). The Authority may then “make representations to the Review Committee or the Review Panel” (22.6.12). On the basis of the said impact statement and other information before it, the Review Committee or the Review Panel shall recommend whether or not the development should proceed and, if so, under what terms and conditions (22.6.15). The decision of the Administrator is transmitted to the proponent (22.6.18), which is bound by that decision and shall give effect to it (22.6.19). If authorization is given, the proponent “shall before proceeding with the work obtained [sic] where applicable the necessary authorization or permits from responsible Government Departments and Services” (22.7.1).
There is still the third stage, which is a political one: “the Lieutenant-Governor in Council or Governor in Council may for cause authorize a development which has not been authorized pursuant to Sub-Section 22.6 or alter the terms and conditions established by the Administrator pursuant to Sub-Section 22.6” (22.7.2).
The issue before this Court is as follows. Relying on the decision rendered on this point in the Great Whale case, the Aboriginal parties argue that once a project under provincial jurisdiction has an environmental impact in an area under federal jurisdiction, both the Federal Administrator and the provincial Administrator have the power and duty to intervene and, ultimately, to block the project; that the proponent is required to submit the preliminary information concerning its proposed development and its impact statement to both the Federal Administrator and the provincial Administrator; that both the federal Review Panel and the provincial Review Committee are seized of the case and that both the Governor in Council and the Lieutenant-Governor in Council have the power to reverse the decision of the Administrator. The appellant, Hydro-Québec and the Attorney General of Canada contend, on the contrary, that the assessment procedure is not a parallel procedure, but is a single procedure, and that once the project falls under provincial jurisdiction (as opposed to under federal jurisdiction) it is the provincial side of the procedure which is set in motion, regardless of whether the project has an environmental impact in an area under federal jurisdiction, and that the federal Administrator, the federal Review Panel and the Governor in Council then have no active role to play.
Apart from the textual arguments which I shall discuss in greater detail later, the Aboriginal parties' position immediately runs up against two obstacles which appear to me to be insurmountable. The first is that section 22 covers any development project “which might affect the environment or people of the Territory” (22.1.4); by definition, therefore, any development project has implications in at least one area of federal jurisdiction, that is, Indians and lands reserved for the Indians (Constitution Act, 1867, subsection 91(24)), and almost certainly in an area of shared jurisdiction, that is, the environment. Furthermore, it is self-evident that any development project in Quebec will have an impact on areas of provincial jurisdiction, such as natural resources (92A) [as enacted by the Constitution Act, 1982, R.S.C., 1985, Appendix II, No. 44, s. 50], public lands, timber and wood (92(5)), local works and undertakings (92(10)) and matters of a purely local or private nature in the province (92(16)). The parties to the Agreement did not take so much care in distinguishing between the respective roles of each government only to arrive at a solution which gives each of them equal decision-making power over every project, and automatically creates an overlap and a total impasse, the moment one government authorizes a project and the other does not. What can be said of a proponent who would, under paragraph 22.6.19, be bound by two contradictory decisions and obliged to give effect to each of them, or who, under paragraph 22.7.2, would have to choose between an order given to it by the Governor in Council and an opposing order given to it by the Lieutenant-Governor in Council?
The second obstacle, which is an extension of the first, derives from the text of the Agreement itself. Section 22.6.7 provides as follows:
22.6.7 The Federal Government, the Provincial Government and the Cree Regional Authority may by mutual agreement combine the two (2) impact review bodies provided for in this Section and in particular paragraphs 22.6.1 and 22.6.4 provided that such combination shall be without prejudice to the rights and guarantees in favour of the Crees established by and in accordance with this Section.
Notwithstanding the above, a project shall not be submitted to more than one (1) impact assessment and review procedure unless such project falls within the jurisdiction of both Quebec and Canada or unless such project is located in part in the Territory and in part elsewhere where an impact review process is required.
The intention of the parties, which could not be clearer, is to avert any overlap. The rule is one review. The exception is two parallel reviews, but only where “the project”, and not its consequences, falls within both jurisdictions (for example, a federal airport and provincial highway infrastructure), or where “the project” is partly outside the Agreement Territory. Even where parallel reviews are possible, the parties to the Agreement intended that it would be possible to “combine the two impact review bodies”.[10] If we were to accept the position of the Aboriginal parties we would be making the exception into the rule.
There is no lack of textual arguments. The actual mandate of the various bodies is significant. “[M]atters of” (my emphasis) exclusive provincial, exclusive federal or mixed or joint federal and provincial “jurisdiction are … dealt with by” the Advisory Committee (22.3.4), and the right of the members appointed by Canada and the members appointed by Quebec to vote is simply taken away from them when the matter being dealt with is under exclusive provincial or federal jurisdiction, as the case may be.
“[D]evelopment projects of” (my emphasis) exclusive provincial, exclusive federal or mixed or joint federal and provincial jurisdiction “are … dealt with” by the Evaluating Committee (22.5.7). Here again, the right of the members appointed by Canada and the members appointed by Quebec to vote is simply taken away from them when the matter being dealt with is under the exclusive jurisdiction of the other level of government.
The mandate of the provincial Review Committee, which is made up of members appointed by Quebec and by the Aboriginals and has no members appointed by Canada, is to deal with “development projects … involving provincial jurisdiction” (my emphasis) (22.6.1). On the other hand, the mandate of the federal Review Panel, which is made up of members appointed by Canada and by the Aboriginals and has no members appointed by Quebec, is to deal with “development projects … involving Federal jurisdiction” (my emphasis) (22.6.4).
From all appearances, it is the nature of the matters in issue which determines the respective responsibilities of the federal and provincial members of the Advisory Committee, it is the nature of the development project which determines the respective responsibilities of the federal and provincial members of the Evaluating Committee and it is the nature of the development project which determines which of the provincial Review Committee and the federal Review Panel will deal with the project.
Throughout subsection 22.6, which describes the procedure for review by the provincial Review Committee and the federal Review Panel, and paragraph 22.7.3, there are references to “the Review Committee or the Review Panel” (my emphasis) (22.6.10, 22.6.11, 22.6.12, 22.6.13, 22.6.14, 22.6.15, 22.6.17). Throughout section 22, the word “Administrator” is used in the singular, which is understandable because it is defined in paragraph 22.1.1 sometimes as one and sometimes as the other. Throughout the section, whether the issue is “a project description” (22.5.1), “preliminary information” (22.5.11), “a preliminary and/or final impact statement” (22.5.14, Schedule 3), or an “impact statement” (22.6.8, 22.6.10, 22.6.11, 22.6.13, 22.6.15, Schedule 3), the singular is used. In no case is it suggested that the proponent submit more than one report or that it submit the same report to each Administrator, or that it submit a separate report to each of them. Moreover, Schedule 3, which describes the “contents of an environmental and social impact statement”, requires that the proponent state all the impacts, regardless, therefore, of whether they involve the jurisdiction of one government rather than of another.
The Motions Judge in Great Whale relied, at page 455, on subsection 33(2) of the Interpretation Act, R.S.C., 1985, c. I-21, which provides that “[w]ords in the singular include the plural, and words in the plural include the singular.” With respect, I do not believe that this Act applies to the Agreement, which is not an “enactment”, that is, “an Act or regulation” within the meaning of subsections 3(1) and 2(1) of the Act.[11] As I explained earlier, the Agreement did have legislative effect, by virtue of being enacted by the James Bay and Northern Quebec Native Claims Settlement Act, supra, to the extent that the Federal Court may take jurisdiction, but it is nonetheless not an “Act” within the meaning of the Interpretation Act. In any event, the rule of singularity and plurality is a guide which is to be used only where the context so permits (see P. A. Côté, The Interpretation of Legislation in Canada, 2nd ed., Cowansville, Qué.: Éditions Yvon Blais, 1991, at page 68). In this case, the context does not allow a singular to be given plural meaning; it is neither conceivable nor realistic to read, each time we see the word “Administrator” in section 22, the words “provincial Administrator”, “federal Administrator” and “Aboriginal Administrator”.
Moreover, section 22 imposes specific time limits in the case of a “developmen[t] being carried out by or on behalf of Federal Government departments or agencies” (22.5.16, 22.6.12, 22.6.14), and this indicates that the duties and powers of the Federal Administrator, in paragraphs 22.5.16 and 22.6.12, and of the federal Review Panel, in paragraph 22.6.14, are not on all fours with those of the provincial Administrator and those of the provincial Review Committee, and reinforces the theory that there are two reviews which are mutually exclusive.
In short, despite some insignificant minor differences between the English and French versions and some clumsiness in the use of certain words, including “jurisdiction”, which is put to all-purpose service, the textual arguments also militate in favour of holding a single review of the Eastmain 1 project, which is under provincial jurisdiction, and of this review being conducted by the provincial Review Committee and the ultimate decision being made by the provincial Administrator or, if need be, by the Lieutenant-Governor in Council of Quebec. When paragraph 22.1.1 ii), which defines “federal Administrator”, provides that “in the case of matters involving federal jurisdiction” that Administrator exercises “functions described in this Section”, it is referring, somewhat clumsily, to the functions assigned to the Administrator in the Section which, by necessity, relate to either matters involving federal jurisdiction which are referred to the Advisory Committee or projects under federal jurisdiction which are referred to the Evaluating Committee and the federal Review Panel. The Aboriginal parties are ill-advised to dispute today what they had themselves contributed to creating in 1975.
I therefore conclude that the Federal Administrator does not exercise functions with respect to a development project such as the Eastmain 1 hydro-electric project, which is a project under provincial jurisdiction.
I would hasten to note that this conclusion does not prejudice the Aboriginals. They are a party to the procedure, whether it be federal or provincial, and may make their concerns known, where necessary, while participating in the complete study of the impact of a project, as members of the Evaluating Committee and the Review Committee or Review Panel. On this point I note that paragraph 22.5.7 is careful to ensure that the Aboriginals have half of the votes on the Evaluating Committee, regardless of the nature of the project being considered, and that paragraphs 22.5.8 and 22.5.9 provide that every two years the Aboriginals will have the deciding vote where the votes are equally divided.
Question 4: Could the Guidelines Order be applied to the Project? (appeal)
In answering this question in the affirmative, the Motions Judge merely referred to subsection 8.18 of the Agreement (supra, footnote 9) and deduced from it that [at page 238] “[t]his section appears to permit the application of subsequently-enacted law, such as the … Order, to all developments contemplated under s. 8 of the JBNQ Agreement.”
I do not share this opinion. It is still necessary, in fact, under the provisions of subsection 8.18 itself, that subsequent law be applicable to the development, and it is still necessary that such subsequent law meet the requirements of paragraph 22.2.3, which reads as follows:
22.2.3 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. [My emphasis.]
The Agreement makes detailed and exhaustive provision for the nature and extent of the environmental studies to which the parties agreed that development projects undertaken in Agreement Territory would be subject. The regime that was established represents the expression of the specific consensus reached by the parties, and the parties expressly intended that one Complexe, Le Complexe La Grande (1975), would be exempt from the application of this regime, just as they intended, in subsection 2.5, that the provincial and federal legislation which was to give effect to the Agreement would both provide that where other legislation is inconsistent with the provisions of the Agreement, the Agreement will prevail.
In the context of this consensus, the Government of Canada formally authorized the construction of the Complexe, in the second paragraph of subsection 8.18 of the Agreement, and gave legislative confirmation of this consent by adopting the James Bay and Northern Quebec Native Claims Settlement Act, supra. In my opinion, this is an irrevocable consent to the construction of the Complexe, with the result that the Order does not apply, since under the terms of section 3 of the Order itself it provides that the environmental assessment procedure shall take place “before irrevocable decisions are taken”. Since the irrevocable decision was taken in 1975, the Order, which was adopted in 1984, cannot apply. The Order cannot apply retroactively to decisions validly made by the Government of Canada and confirmed by Parliament prior to its coming into force.
I conclude that the Order does not apply to the Project.
Question 5: If the answer is yes, have the conditions in which the Order is triggered been fulfilled in the case at bar with respect to one or all of the Ministers? (appeal)
As I did in the case of question 3, I have decided to answer this question even though it is not strictly necessary to do so.
In Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 (Oldman River), the Supreme Court, and in Carrier-Sekani Tribal Council v. Canada (Minister of the Environment), [1992] 3 F.C. 316 (C.A.) (Carrier-Sekani), this Court examined in great detail the circumstances in which the Order is triggered, and I do not intend to go into this debate again. I take from these two decisions and from my analysis of the Order that the environment is not the prerogative of one level of government alone, and that it is not open to the federal government systematically to interfere in a project that falls within provincial jurisdiction on the pretext of environmental concerns. The Order is not routinely triggered; on the contrary, when it is, it results in the implementation of a complex administrative scheme which should not be used lightly. The review process is ancillary and preliminary to the making of a decision by an initiating Minister. It should be instigated against a business or activity only where carrying out the project is subject to the proponent obtaining prior authorization from a federal Minister who has the power and duty to give or refuse permission, or to impose conditions for carrying out the project. This power and duty must be based on a federal statute or on another affirmative federal duty.
The Aboriginal parties submit that in this case the Minister of Indian Affairs and Northern Development, the Minister of the Environment, the Minister of Fisheries and Oceans and the Minister of Transport must give their consent before Hydro-Québec may carry out the Project. The Motions Judge found for the Aboriginal parties, but his judgment was rendered before the two decisions referred to above, which laid down different guidelines from those which he followed. I would note that the evidence on which we are deciding this case is the very same as was before the Motions Judge, with the result that the Aboriginal parties perhaps had not presented all the evidence at trial that they would have presented if they had known of the changes which would be made in this respect by the decisions in Oldman River and Carrier-Sekani.
The Minister of Indian Affairs and Northern Development
While the federal Government owes a fiduciary duty to the Aboriginals, one of the essential conditions for the Order to apply is missing: there is no federal law or other affirmative duty which imposes an obligation on the Minister of Indian Affairs and Northern Development to make a decision with respect to the carrying out of the Project. The mere possibility of environmental impact on matters relating to Indians and lands reserved for the Indians (subsection 91(24), Constitution Act, 1867) is not sufficient for the Order to apply.
This argument had been made before the Supreme Court in Oldman River. Because the Supreme Court did not deal with it, I assume that it did not accept it. In any event, I do not accept it. The interest of a Minister, or even of a government, is not sufficient to trigger application of the Order.
The Minister of the Environment
Similarly, the general responsibilities of the Minister of the Environment for environmental issues cannot alone trigger application of the Order or make the Minister the “initiating minister” within the meaning of the Order. That Minister has no independent decision-making power over the carrying out of the Project. In fact, he would play no role in this case unless the Order applied. Thus, La Forest J. noted in Oldman River, “[i]t cannot have been intended that the Guidelines Order would be invoked every time there is some potential environmental effect on a matter of federal jurisdiction” (at page 47).
The Minister of Fisheries and Oceans
The Supreme Court of Canada held in Oldman River that the Fisheries Act, R.S.C., 1985, c. F-14, did not operate to trigger application of the Order. It is true, as the Aboriginal parties contend, that the Supreme Court seemed to be giving more consideration to subsection 35(1) than to subsection 35(2) of the Act when it concluded, at page 48, that there is no regulatory scheme under that Act which is applicable to the Project. However, we cannot assume that it did not also base its decision on subsection 35(2). I do not believe that it is then for this Court to decide that the Supreme Court did not decide what it appears to have decided.
In any event, even if there were an affirmative duty under subsection 35(2) to regulate, it is not certain that section 35 applies in this case, and even if it did apply, the Aboriginal parties have not identified any fact which would trigger such an obligation.
In fact, on the one hand, it is not clear that section 35 applies to anything other than the carrying on (“exploitation” in the French) of “any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.” We are here still at the stage of construction of the Project, and it seems to me to be premature to be speaking already about carrying on an undertaking. Counsel for Hydro-Québec has unearthed a pleiad of statutes which distinguish between the “construction” and “carrying on” of an undertaking. Since, by virtue of section 40 [as am. by S.C. 1991, c. 1, s. 10], any contravention of section 35 is a criminal offence, section 35 must be narrowly construed, and the text of the Act itself provides some support for the distinction suggested by Hydro-Québec.[12]
It could in fact be that in section 35 Parliament was solely interested in the “carrying on” of a work or undertaking. The word “construction” is found in sections 20, 21, 22, 29 and 30, and this may indicate that when Parliament referred to “carrying on” in section 35 it did not intend to include “construction”. I further note that when Parliament wanted to deal with the period of construction or the period when construction is being planned, it did so expressly: see subsection 22(2), “during the period of construction thereof”, and subsection 37(1), “[w]here a person carries on or proposes to carry on any work or undertaking”. It therefore might be that section 37 deals with stages which section 35 does not cover.
Similarly, when an “obstruction” (which, by virtue of section 2, includes a “dam”) impedes the free passage of fish, what Parliament has provided, in section 20, is not that the owner of the dams amend the plans or halt the construction thereof, but rather that it construct a “fish-way or canal” or, if it is not feasible to do so, that it reimburse the Minister such sums of money required “to construct, operate and maintain [a] complete fish hatchery establishment”. I note the distinction which Parliament itself has made in subsection 20(2) among construction, operation (“exploitation”, in the French) and maintenance.
Is it necessary to recall that the Agreement itself distinguishes almost systematically among “construct, operate and maintain” (see paragraph 8.1.2, subsection 8.17, and so on)?
The suggested distinction between “operation” and “construction” is therefore not so surprising, upon reflection, as it might have appeared at first glance. However, I shall draw no firm conclusion from this, because the question was raised only at the hearing and the aboriginal parties did not really have an opportunity to make argument against the interpretation proposed by Hydro-Québec.
On the other hand, if the “construction” of the Project is covered by section 35, it appears that that section is intended to protect “fish habitat”, which is defined in section 34 as “spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes.” It was not alleged in the proceedings that the construction of the Project threatens the spawning grounds and so on, on which fish depend to carry out their life processes. A party cannot simply make vague assertions concerning fish or fisheries and thereby trigger the so-called decision-making power of the Minister.
The Minister of Transport
In Oldman River, the Supreme Court of Canada found an affirmative duty to regulate in section 5 of the Navigable Waters Protection Act, R.S.C., 1985, c. N-22, which justifies the Minister of Transport in undertaking the initial assessment of a project which is subject to his approval.
However, in Oldman River, the parties had acknowledged that the Oldman River was in fact navigable (at page 54). The navigability of a river is an elementary condition for this Act to apply, and in the case at bar the appellant and Hydro-Québec vigorously dispute the navigability of the river.
The navigability of a river is a question of fact and of law. The Court cannot assume that it is navigable, and must be in a position to conclude from the evidence submitted that it is in fact navigable (Bell v. Quebec (Corporation of) (1879-80), 5 App. Cas. 84 (P.C.) at page 93; Sim E. Bak v. Ang Yong Huat, [1923] A.C. 429 (P.C.) at page 433; Attorney General of Quebec v. Fraser (1906), 37 S.C.R. 577, at page 596, confd sub nomonine Wyatt v. Attorney-General of Quebec, [1911] A.C. 489 (P.C.); G. V. La Forest and Associates, Water Law in Canada—The Atlantic Provinces, Regional Economic Expansion, 1973, at page 180; G. Lord, Le Droit québécois de l'eau, Centre de recherche en droit public, Université de Montréal, Éditeur officiel du Québec, 1977, at page 61).
In this case, the Aboriginal parties were content with vague statements in the sworn declarations which they entered into evidence, which statements were more in the nature of statements of principle and conclusions of law than of precise and useful narratives of fact on which the Court could base a finding. The Court knows nothing of the characteristics of the Eastmain River, either of its general course or of the area where the dam will be constructed. The fact that it is used as a border on geographic maps does not establish that it is navigable. The assertion that it has been used as a mode of transportation by Aboriginals is too general and too isolated for the Court to act on it.
The arguments of the aboriginal parties run up against Rule 412(2) of the Rules of this Court [Federal Court Rules, C.R.C., c. 663], which provides that “Raising a question of law or an express assertion of a conclusion of law—such as an assertion of title to property—shall not be accepted as a substitute for a statement of material facts on which the conclusion of law is based.” (See Bertram S. Miller Ltd. v. R., [1986] 3 F.C. 291 (C.A.); Caterpillar Tractor Co. v. Babcock Allatt Limited, [1983] 1 F.C. 487 (T.D.).) To assert that the waters are navigable or that the dam will affect navigable waters is, it seems to me, to assert a legal consequence.
The Aboriginal parties are so aware of the inadequacy of their evidence that they referred in their memorandum to a study which had not been placed in evidence and to facts set out in judgments rendered in other places, as if the Court could take notice of these facts and as if these facts could be set up against the other parties automatically. I understand that the Aboriginal parties were caught short by the decisions in Oldman River and Carrier-Sekani, but that does not do anything to make up for the problems in the case before us. We need only read the judgments which have decided whether watercourses were navigable to be persuaded that the Court would not have enough evidence in this case, even with the best intentions in the world, to be able to decide the issue one way or the other.
The so-called finding of fact made by the Motions Judge on the issue of navigability on which the Aboriginal parties rely is found in the Great Whale case, and is therefore of no assistance to them in respect of the Eastmain 1 Project. In the case on appeal, the Motions Judge simply stated that [at page 233] “[t]he environmental consequences of this project on navigable waters … can hardly be disputed”, without stopping to explain what these waters were and in what sense they were navigable. This is not a finding of fact which is binding on this Court and, as I noted at the outset, the question of navigability is, as well, a question of law.
I therefore conclude that the record as it stands does not allow the Court to conclude that the primary condition for the Navigable Waters Protection Act, supra, to apply, that is, the navigability of the Eastmain River, has been established. The Minister of Transport could not exercise any decision-making power which would trigger the application of the Order before being persuaded of the navigability of the watercourse.
On the matter as a whole, I conclude that the conditions which trigger the Order have not been fulfilled in this case as against any of the mis en cause Ministers.
Before closing, I would like to refer to a piece of evidence which is in the record and which provides a proper perspective for viewing this case.
It appears that while Hydro-Québec believes that the Project is not subject to the regime or to the environmental impact assessment and review process set out in sections 153 et seq. of Chapter II of the Environment Quality Act, R.S.Q. 1977, c. Q-2 (the Quebec Act), it nonetheless considers the Project to be subject to Quebec laws of general application, and more particularly to Division IV of Chapter I of the Quebec Act. In this respect, Hydro-Québec sent a letter to the Quebec Minister of the Environment on June 11, 1990, informing him of the preliminary studies concerning the Project. On March 18, 1991 the Minister sent a guide to Hydro-Québec indicating the nature, scope and extent of the environmental impact study, for the purpose of the preparation of the environmental impact study which Hydro-Québec must file in support of its application for a certificate of authorization under section 22 [as am. by S.Q. 1988, c. 49, s. 4] of the Quebec Act.[13]As of July 5, 1991, Hydro-Québec was in the process of finalizing the impact study which it prepared in accordance with the reference guide, the requirements of section 22 of the Quebec Act and the Regulation respecting the administration of the Environment Quality Act [R.R.Q. 1981, c. Q-2, r. 1].
I would allow the three appeals and would dismiss the cross appeal by the Aboriginal parties, with costs at trial and on appeal to the Attorney General of Quebec and Hydro-Québec. The Attorney General of Canada would be entitled to her costs only in respect of the cross appeal, since she did not seek costs in respect of her appeal.
Létourneau J.A.: I concur.
[1] Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3
[2] Carrier-Sekani Tribal Council v. Canada (Minister of the Environment), [1992] 3 F.C. 316 (C.A.).
[3] R.S.C., 1985, c. F-14.
[4] R.S.C., 1985, c. N-22.
[5] See Cree Regional Authority v. Canada (Federal Administrator), [1991] 3 F.C. 533 (C.A.).
[6] See Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, at p. 142; R. v. Sioui, [1990] 1 S.C.R. 1025, at pp. 1036 and 1072; R. v. White and Bob (1964), 50 D.L.R. (2d) 613, (B.C.C.A.) at p. 649.
[7] 8.1.2 Le Complexe La Grande (1975)
La Société d'énergie de la Baie James and Hydro-Québec may construct, operate and maintain Le Complexe La Grande (1975) substantially as described herein, in whole or in part, with or without LA 1 and EM 1, at their option.
The components of Le Complexe La Grande (1975) which are constructed shall substantially conform to and be those components contemplated by the Description Technique—Le Complexe La Grande (1975) dated October 20, 1975 attached hereto as Schedule 1 of this Section of the Agreement.
The parties to the Agreement acknowledge that the Le Complexe La Grande (1975) is already under construction and therefore shall not be subject to the environmental regime established by the Agreement and further agree not to take any actions whatsoever which would prevent the construction of the said complex
[8] 8.1.3 Other Projects
It is recognized that there exists a possibility of future hydroelectric developments in the Territory. Studies are being carried out in relation to the N.B.R. Complex dealing with the development of the Nottaway, Broadback and Rupert Rivers hereinafter referred to as the N.B.R. Complex and in relation to the Great Whale Complex for the development of the Great Whale, Little Whale and Coast Rivers hereinafter referred to as the Great Whale Complex.
It is agreed that these known projects and any additions and/or substantial modifications to Le Complexe La Grande (1975), if built, shall be considered as future projects subject to the environmental regime only in respect to ecological impacts and that sociological factors or impacts shall not be grounds for the Crees and/or Inuit to oppose or prevent the said developments.
[9] 8.18 Application of Laws of Canada
Notwithstanding anything in this Section, the laws of Canada, from time to time in force, shall continue to apply to all development contemplated within the terms of this Section insofar as such laws are applicable to such development.
Canada acknowledges that the project and its components, as presently described in Schedule 1, are in substantial conformity with the requirements of applicable federal laws and regulations and consents to its construction in accordance with said description in so far as such consent is required.
[10] This is how I understand the first paragraph of paragraph 22.6.7, which is also careful not to permit the two Administrators to be “combined”. The committee and the panel, which are not decision-making bodies, may be combined if necessary, to avoid conducting two investigations at once, but each Administrator retains his or her decision-making power, which is to be expected, since the project in question is hypothetically within both federal and provincial jurisdiction.
[11] The result would be the same if we were to apply the Quebec Interpretation Act, R.S.Q. 1977, c. I-16, s. 54.
[12] I have found no decision where, in applying section 35 to the “construction” of an undertaking, the distinction suggested by Hydro-Québec was brought to the attention of the court.
[13] S. 22 of the Environment Quality Act reads as follows:
22. No one may erect or alter a structure, undertake to operate an industry, carry on an activity or use an industrial process or increase the production of any goods or services if it seems likely that this will result in an emission, deposit, issuance or discharge of contaminants into the environment or a change in the quality of the environment, unless he first obtains from the Minister a certificate of authorization*.
* (On the interpretation of this section, see P.G. du Québec c. Société du parc industrielle du centre du Québec, [1979] C.A. 357.)