T-451-91
Cree Regional Authority and Bill Namagoose
(Applicants)
v.
Raymond Robinson (Respondent)
INDEXED As: CREE REGIONAL AUTHORITY v. CANADA (FEDER-
AL ADMINISTRATOR) (T.D.)
Trial Division, Rouleau J. —Montréal, March 11
and 13, 1991.*
Environment — Agreement signed with native peoples to
plan and control development of the Northern Quebec Region
— Great Whale River Hydroelectric Project Phase II of
development — Federal authorities pressured by Indians to
initiate environmental review procedures before construction
begun — Federal administrator appointed to supervise envi
ronmental impact of future development and to protect areas
of federal jurisdiction including Indian people — Project
affecting social and economic future of native peoples and
interfering with wildlife and habitat.
Native peoples — Lands — Agreement executed with native
peoples to plan and control development of Northern Quebec
Region — Cree and Inuit of Northern Quebec conceding and
relinquishing rights over territory in exchange for guarantees
and undertakings by federal and provincial governments —
Agreement recognizing Crees' rights to trapping, fishing and
hunting, considering social and economic impact of future
development — Future safeguards for occupying aboriginal
peoples ultimate aim — Agreement signed in good faith for
protection of Cree and Inuit peoples — Natives not to be
deprived of rights and territories without due consideration —
Denying motion for mandamus to enforce agreement by con
ducting environmental impact assessment would provoke in
Indians sense of victimization by white society, institutions.
Federal Court jurisdiction — Trial Division — Act of
Parliament incorporating Agreement signed with native peo
ples to plan and control development of Northern Quebec
Region — Hydroelectric project involving matters of federal
jurisdiction — Subject to federal evaluation under Agreement,
ss. 22, 23 — Whether Agreement law of Canada — Intended
to operate as substantive enactment as if part of statute —
Indian affairs and environment under federal jurisdiction —
Essential requirements to determine Court jurisdiction all met
* This decision was affirmed by the Federal Court of Appeal
in a judgment rendered May 14, 1991 in Court File A-231-91.
The reasons for judgment of MacGuiga❑ J.A. (Hugessen and
Décary JJ.A. concurring) will be published in the Federal
Court Reports.
— No other Court of competent jurisdiction to resolve issue —
Jurisdiction to grant relief under Federal Court Act.
Judicial review — Prerogative writs — Mandamus —
Motion seeking mandamus and injunction against federal
administrator to pursue environmental impact assessment and
review procedures under James Bay and Northern Quebec
Agreement, ss. 22, 23 — Federal administrator "office" within
Federal Court Act, s. 2(g) — Appointment of administrator
arising exclusively from federal enactment — Motion granted.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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], s. 101.
Environmental Assessment and Review Process Guide
lines Order, SOR/84-467.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(g), 18, 44.
Interpretation Act, R.S.C., 1985, c. I-21, s. 13.
James Bay and Northern Quebec Native Claims Settle
ment Act, S.C. 1976-77, c. 32, s. 3.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
ITO—International Terminal Operators Ltd. v. Miida
Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28
D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241; R. v.
Sparrow, [1990] 1 S.C.R. 1075; [1990] 4 W.W.R. 410.
AUTHORS CITED
Halsbury's Laws of England, vol. 44, 4th ed. London:
Butterworths, 1983, para. 938.
COUNSEL:
J. O'Reilly and Peter W. Hutchins for
applicants.
J. M. Aubry and R. Leblanc for respondent.
R. Monette for intervenor Attorney General
of Quebec.
G. Emery and Sylvain Lussier for intervenor
Hydro -Québec.
SOLICITORS:
O'Reilly, Mainville, Montréal, for applicants.
Deputy Attorney General of Canada for
respondent.
Bernard, Roy & Associates, Montréal, for
intervenor Attorney General of Quebec.
Desjardins, Ducharme, Montréal, for inter-
venor Hydro -Québec.
The following are the reasons for order ren
dered in English by
ROULEAU J.: Motion on behalf of applicants to
obtain an order of mandamus against respondent
Raymond Robinson ordering him as federal
administrator to comply with sections 22 and 23 of
the James Bay and Northern Quebec Agreement
and the James Bay and Northern Quebec Native
Claims Settlement Act [S.C. 1976-77, c. 32] in
regard to the proposed Great Whale River Hydro
electric Project and specifically to pursue the fed
eral impact assessment and review procedures con
templated by sections 22 and 23 of the James Bay
and Northern Quebec Agreement and the James
Bay and Northern Quebec Native Claims Settle
ment Act in regard to the proposed Great Whale
River Hydroelectric Project or alternatively to
obtain an order of injunction or other relief order
ing him to so comply with said sections 22 and 23
to pursue said procedures.
REASONS FOR ORDER
This motion was heard at Montréal on March
11, 1991. The issue before the Court arises out of a
dispute with respect to an agreement executed in
1979 concerning the James Bay and Northern
Quebec Agreement. The signatories are the gov
ernments of Canada, the province of Quebec, the
James Bay Development Corporation, Hydro -Qué-
bec, the Grand Council of the Crees of Quebec
and the Northern Quebec Inuit Association. As a
result of this Agreement, the Cree and Inuit of
Northern Quebec conceded and relinquished cer
tain rights they had over the territory in exchange
for certain guarantees and undertakings given by
both the federal and provincial governments. The
purpose was to plan and control future develop
ment of the Northern Quebec Region.
In recent months, the government of Quebec
along with the James Bay Corporation and Hydro -
Québec have made public their intention to pro
ceed with Phase II of the development called the
Great Whale River Hydroelectric Project. It was
recently disclosed that the corporation responsible
for the development of the project called for ten
ders for the clearing for an access road as well as
its construction. The Grand Council of the Cree
became aware of this initiative and were pressing
federal authorities to initiate environmental review
procedures in the area before construction was to
begin. Conscious of the imminent commencement
of site preparation for the road, the Grand Council
of the Cree instructed their lawyers to bring pro
ceedings before this Court seeking mandamus or
an injunction against the appointed federal
administrator, Mr. Raymond Robinson. Ultimate
ly the relief requests that he conduct environmen
tal and social impact assessment and review proce
dures pursuant to sections 22 and 23 of the
Agreement.
In a letter dated October 3, 1989 and directed to
the Minister of the Environment of the Province of
Quebec, the federal minister, Lucien Bouchard,
indicated that since the federal authorities had
become aware of the development of the Great
Whale River Hydroelectric Project, it was its view
that an environmental assessment should be under
taken since the project involved matters of federal
jurisdiction. He contended that sections 22 and 23
of the Agreement applied and he suggested a
cooperative approach between both levels of gov
ernment. The letter went on to indicate that feder
al officials would look forward to hearing from
Hydro -Québec and hoped to receive from them an
outline of the proposed project. He further sug
gested that taking into account the considerable
magnitude of this project, it was extremely impor
tant that the environmental assessment be con
ducted as objectively and independently as
possible.
On November 28, 1989, the federal Minister of
the Environment once again wrote to the newly
appointed Minister of the Environment of the
Province of Quebec bringing to his attention the
urgency of the environmental review and enclosed
a copy of the letter previously forwarded to his
predecessor. By a letter dated the 23rd of Novem-
ber 1989, Mr. Raymond Robinson, the federal
administrator, corresponded with the vice-presi
dent of environment of Hydro -Québec and reite
rated that this project was subject to a federal
environmental review procedure pursuant to sec
tions 22 and 23 of the Agreement. He further
requested a summary or outline of the project and
confirmed that pursuant to his mandate, he had
appointed a tribunal to initiate a study. He also
confirmed that he considered that the federal gov
ernment had an obligation to undertake these stud
ies in light of recent decisions of the Federal Court
of Canada and, more particularly, in light of the
EARP Guidelines [Environmental Assessment
and Review Process Guidelines Order, SOR/84-
467] which came into effect in June of 1984. He
also suggests a cooperative study.
An extensive period of silence then prevails. On
the 19th of November 1990, Mr. Robinson wrote
to Michel Chevalier of Environment Canada, Pres
ident of the evaluation committee responsible for
the James Bay and Northern Quebec Develop
ment. He outlines the federal responsibility with
respect to the Great Whale Project and the impact
it may have in areas of federal jurisdiction, such as
fisheries, migratory birds and the ecology of Hud-
son's Bay. He advises that the federal appointees
are prepared to work in collaboration with their
provincial counterparts and he is anxious that a
joint agreement be ratified. Should Quebec fail to
act, the federal government would be obliged to
act unilaterally, he wrote. On November 23, 1989,
Mr. Robinson again advises the vice-president of
the environment for Hydro -Québec that this
project is subject to federal evaluation pursuant to
sections 22 and 23 of the Agreement and he seeks
a cooperative effort.
At a meeting in November of 1990, Mr. Robin-
son changes his position and informs the Cree that
he has no mandate to apply federal impact assess
ment review procedure under the Agreement. As a
result of this turn of events, this motion was
launched against Mr. Robinson, the federal
administrator responsible for environmental
evaluation pursuant to sections 22 and 23 of the
Agreement. Shortly thereafter, having been made
aware of the motion, Hydro -Québec, the federal
Department of Justice, and the Attorney General
of Quebec sought leave to be added as intervenors.
This was granted by the Court without objection
by the applicant. The respondent as well as the
intervenors challenge the jurisdiction of this Court
to grant the relief sought.
It is the applicant's position that the Agreement,
which was ratified by the Parliament of Canada, is
the law of Canada, that Mr. Robinson, appointed
pursuant to the enabling Act of Parliament, has a
statutory obligation to appoint Review Panels
which he has failed to do; that, pursuant to subsec
tion 3(5) of the ratifying Act, Mr. Robinson,
appointed by Order in Council, was a "federal
board, commission, or other tribunal" pursuant to
paragraph 2(g) of the Federal Court Act [R.S.C.,
1985, c. F-7], and that this Court has jurisdiction
to entertain the motion and grant the relief
claimed.
The respondent, as well as all intervenors,
submit that the Parliament of Canada, has not
incorporated the Agreement per se into its con
firming legislation. They sumbit that as a result,
the appointment of Mr. Robinson was not pursu
ant to federal legislation and that his powers are
derived from a joint provincial and federal author
ity; and finally, that this Agreement was not an
Act of Parliament and therefore this Court does
not have jurisdiction.
As mentioned earlier, this rather extensive and
complex Agreement involved not only federal and
provincial authorities, but included as signatories
Hydro -Québec, the James Bay Development Cor
poration and, more importantly, the Grand Coun
cil of the Cree and Inuit of Northern Quebec. In
the document, the aboriginal peoples relinquished
their traditional rights over some 3/5 of the territo
ry of the province of Quebec in return for certain
assurances and guarantees included in the Agree-
ment. It specifically recognizes the Crees' rights to
trapping, fishing, and hunting grounds; considers
the social and economic impact that any future
development may have, and enshrines, in sections
22 and 23, a procedure to be followed with respect
to environmental impact studies which are to be
conducted in the event of further projects.
Section 22 refers to the Environment and Future
Development Below the 55th parallel, and section
23 refers to the Environment and Future Develop
ment North of the 55th parallel. There is no doubt
that some of the initial infrastructure development
may be undertaken south of the 55th parallel, but
nevertheless the major hydroelectric development
will occur north of the 55th parallel.
Pursuant to the terms of this Agreement, all
parties are to derive certain benefits, and there is
no doubt that the Cree and Inuit of the territory
were given some guarantees for having surren
dered certain rights. The ultimate aim was to
provide future safeguards for the occupying
aboriginal peoples.
According to sections 22 and 23 of the Agree
ment, a federal administrator is to be appointed
for the purposes of supervising the environmental
impact of any future development and to see to the
protection of areas of federal jurisdiction which
includes, of course, the Indian people of the region.
The Agreement specifically indicates that the
Administrator is to set up evaluating committees
to determine if the development is to have any
significant impact on the native people or the
wildlife resources of the territory. He is under no
obligation to proceed with an assessment in the
event that the development contemplates no sig
nificant impact. I doubt that anyone can suggest
that Phase II of the James Bay Hydroelectric
Development Project will not affect both the social
and economic future of the native peoples and will
certainly interfere with wildlife and its habitat,
resulting in drastic changes to the traditional way
of life.
As a schedule to the Agreement, it was indicat
ed that future amendments were to be approved by
all parties and ratified by the Quebec National
Assembly as well as the Parliament of Canada
when changes concerned their respective jurisdic-
tions. This would appear to me to indicate that all
parties presumed legislative authority or ratifica
tion.
The initial submission put forth by the respond
ents, as well as the intervenors, was to the effect
that the statute passed by the Parliament of
Canada ratifying the Agreement did not of itself
incorporate all terms of the Agreement; was not an
enactment and therefore created no federal juris
diction; it was not a statute, therefore, the appoint
ment of Mr. Robinson, by Order in Council, was
not by enactment, and could not clothe this Court
with jurisdiction to grant the relief sought. Most
counsel relied upon and referred me to a quote
from Halsbury's Laws of England, 4th ed. at
paragraph 938 in volume 44 and argued that from
a reading of what was contained therein, a simple
ratification of a contract by Parliament did not
have the force and effect of a statute. The follow
ing is the quote from Halsbury:
938. Statutory confirmation of contracts. Where a contract
is confirmed by statute, no objection can be taken as to its
validity. It cannot, for example, be challenged for uncertainty
or remoteness; nor is it material that it creates a right which
could not be created by ordinary contract. It does not follow
that, because it is confirmed by statute, a contract has the force
and effect of a statute, but the terms in which it is confirmed
may show that Parliament intended it to operate as a substan
tive enactment as if the contract had become part of the
statute, and it will certainly have such an operation if the
statute in question, in addition to confirming it, expressly
requires it to be carried into execution. A contract having
substantive effect in this way may accordingly affect persons
who are not parties to it.
Most other authorities and jurisprudence relied
upon by the respondent as well as the intervenors
were irrelevant. The authorities referred to may be
summarized as incidents where a specific grant of
jurisdiction had been conferred on other bodies or
cases where it was clearly determined that the
jurisdiction belonged in provincial superior courts.
It appears evident and clear to me that counsel
has misconstrued the passage. A careful reading
would seem to indicate the contrary. In fact it
suggests that when the terms of the statute clearly
confirm what Parliament intended, and it express
ly requires that the terms of the contract be car-
ried into execution, it becomes part of the law. The
federal Parliament confirmed the Agreement by
statute on the 14th of July 1977, S.C. 1976-77, c.
32. The opening paragraph of the preamble is as
follows:
"An Act to approve, give effect to and declare valid certain
agreements between the Grand Council of the Crees (of
Quebec), the Northern Quebec Inuit Association, the Govern
ment of Quebec, la Société d'énergie de la Baie James, la
Société de développement de la Baie James, la Commission
hydro-électrique de Québec and the Government of Canada
and certain other related agreements to which the Government
of Canada is a party".
The preamble goes on to explain that the gov
ernment of Canada has assumed certain obliga
tions under the Agreement respecting the Crees
and the Inuit. It relates that it is setting aside, for
the native peoples, certain lands for hunting, fish
ing and trapping in accordance with the estab
lished regime; it seeks their active participation in
the administration of the Territory; it attempts to
safeguard and protect their future and to ensure
their involvement in the development of their Ter
ritory. It refers to the establishment of laws, regu
lations and procedures to protect the environment
and more particularly, refers to remedial and other
measures respecting hydroelectric development.
The preamble goes on to state, that in consider
ation of the surrender of the native claims to this
portion of the territory of Quebec, the government
of Canada recognizes and affirms a special respon
sibility to protect the rights, privileges and benefits
given to the native peoples under the Agreement
(see e.g. section 3). The Agreement was tabled by
the Minister of Indian Affairs and Northern De
velopment and approved and declared valid by
Parliament.
Section 13 of the Interpretation Act [R.S.C.,
1985, c. I-21] provides that the preamble of a
statute shall be read as part of the enactment and
is intended to assist in explaining its purport and
object.
How then can it be argued that Parliament did
not contemplate that the Agreement form part of
the statute and the law of Canada? There is no
doubt in my mind that Parliament intended the
Agreement to operate as a substantive enactment,
as if the Agreement had become part of the stat
ute. Parliament appears unequivocal as to its
intention and purpose.
I am therefore satisfied that the appointment of
the administrator, pursuant to subsection 3(5) of
the statute allowing the Governor in Council to
make regulations which are necessary for the pur
pose of carrying out the Agreement or for giving
effect to any of the provisions thereof, does not
arise from a joint provincial/federal authority but
exclusively from a federal enactment.
The Order in Council specifies that Mr. Robin-
son is to be the administrator in matters involving
federal jurisdiction for the purpose of sections 22
and 23 of the James Bay and Northern Quebec
Agreement.
Having concluded that the James Bay and
Northern Quebec Agreement forms part of the
federal statute, Mr. Robinson is thus a person
exercising powers conferred by or under an Act of
Parliament, and is a "federal board" as specified
in paragraph 2(g) of the Federal Court Act. I find
that I have jurisdiction under section 18 of the
Federal Court Act to entertain the motion for the
relief claimed.
Should the above analysis prove to be incorrect,
I would suggest that this Court has jurisdiction
either under section 44 of the Federal Court Act
or in exercising its powers for "the better adminis
tration of the laws of Canada" (section 101, Con
stitution 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]). We have at
bar a federal administrator with no apparent au
thority having the power to review his acts or
omissions. It is well established that federal
appointees must be either specifically governed by
applicable regulation or subject to some other
review mechanism.
In the absence of such a review mechanism, and
given that Indian Affairs and the Environment fall
under federal jurisdiction, it may well be "just and
convenient" for this Court to consider the granting
of mandamus or an injunction under section 44 of
the Federal Court Act.
In the case of ITO—International Terminal
Operators Ltd. v. Miida Electronics Inc. et al.,
[1986] 1 S.C.R. 752, it was established that there
are 3 essential requirements to determine whether
or not this Court has jurisdiction, as follows [at
page 766]:
1. There must be a statutory grant of jurisdiction by the
federal Parliament.
2. There must be an existing body of federal law which is
essential to the disposition of the case and which nourishes
the statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of
Canada" as the phrase is used in s. 101 of the Constitution
Act, 1867.
There is no doubt that this matter complies with
conditions 2 and 3. The question to be answered is
"Must there be a statutory grant of jurisdiction by
the federal Parliament?" Being satisfied that there
is a lacuna with respect to the granting of any
supervisory role over Mr. Robinson, and unable to
envisage any other body capable of exercising the
function, I must conclude that jurisdiction to
review actions of Mr. Robinson rests with this
Court.
In reaching this conclusion, I cannot help but be
directed by the words of Dickson C.J. in R. v.
Sparrow, [1990] 1 S.C.R. 1075, in which courts
are directed that "the Sovereign's intention must
be clear and plain if it is to extinguish an aborigi
nal right".
I feel a profound sense of duty to respond
favourably. Any contrary determination would
once again provoke, within the native groups, a
sense of victimization by white society and its
institutions. This Agreement was signed in good
faith for the protection of the Cree and Inuit
peoples, not to deprive them of their rights and
territories without due consideration. Should I
decline jurisdiction, I see no other court of com
petent jurisdiction able to resolve this issue.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.