Judgments

Decision Information

Cree Regional Authority v. Canada (Federal Administrator) (T.D.)

Collection	Judgments
Date	1991-09-10
Report citation	[1992] 1 F.C. 440
File numbers	T-451-91
Subjects	Administrative Law Constitutional Law Environment Indigenous Peoples

Decision Content

T-451-91

Cree Regional Authority and Bill Namagoose (Applicants)

Raymond Robinson (Respondent)

and

Procureur général du Québec and Hydro -Québec (Intervenors)

and

Makivik Corporation (Intervenor)

INDEXED AS: CREE REGIONAL AUTHORITY V. CANADA (FEDERAL ADMINISTRATOR) (TD.)

Trial Division, Rouleau J.—Montréal, July 16, 17, 18 and 19; Ottawa, September 10, 1991.

Native peoples — Lands — Indians seeking mandamus to order federal Administrator to comply with review procedures contemplated by James Bay and Northern Quebec Agreement

— Great Whale River Hydroelectric Project — Under JBNQ Agreement, Indians, Inuit giving up territorial rights for fed eral, provincial undertakings — Project proceeding although federal environmental review not initiated — Federal Adminis trator telling Indians lacking mandate to apply federal impact assessment review procedure — Federal, provincial authorities cutting new deal for assessment under EARP Guidelines with out participation of JBNQ Agreement's aboriginal signatories

— Under JBNQ, federal, provincial reviews combined only if all three parties (federal, provincial governments and Cree Regional Authority) agree and combined review without prejudice to Crees — Federal government incurring fiduciary obligation towards Crees in extinguishing native rights by James Bay and Northern Quebec Native Claims Settlement Act

— Indians' right to separate federal, provincial environmental reviews also protected by Constitution Act, s. 35(1) — Latest federal-provincial deal intended to appease, circumvent native peoples, get rid of obligations under JBNQ Agreement — Bipartite deal cannot be substituted for federal obligations under JBNQ Agreement.

Environment — Application for mandamus ordering federal Administrator to comply with environmental review procedures

contemplated by James Bay and Northern Quebec Agreement — Indians giving up territorial rights for federal, provincial undertakings — Great Whale Project proceeding prior to envi ronmental review — Federal Administrator telling Indians no mandate for federal review after advising Quebec officials as to urgency of review and that Project subject to federal envi ronmental review — Federal, Quebec governments reaching new agreement for environmental assessment without consent of Indians — No doubt Project will interfere with wildlife, affect natives' social, economic future — Constitution Act, s. 35(1) protecting native hunting, fishing rights by separate fed eral, provincial environmental reviews — Recent agreement intended to appease, circumvent Indians, get rid of responsibil ities under JBNQ Agreement — As JBNQ ratified by statute, duties thereunder relieved only by statute — New review, under EARP Guidelines, having no effect on provincial undertaking — Raising of public awareness only value — Project requiring no federal authorization.

Judicial review — Prerogative writs — Mandamus = Fed eral Administrator having public duty to carry out environmen tal impact assessment — Mandamus available to compel Crown servant to perform public duty — No more convenient remedy available — Demand and refusal.

Constitutional law — Distribution of powers — Whether federal government intending, by James Bay and Northern Quebec Agreement, to delegate to provincial Administrator, by implication, legislative authority regarding Indians, fish, migratory birds and navigable waters — Interdelegation requiring express statutory delegation, mechanism for revoca tion.

This was an application for mandamus or, in the alternative, a mandatory injunction, to compel the respondent Administra tor to carry out a federal environmental and social impact assessment as provided for by the James Bay and Northern Quebec Agreement and the James Bay and Northern Quebec Native Claims Settlement Act.

When the Agreement was executed in 1975, the signatories included the federal and provincial governments, and represen tatives of the Cree and Inuit. The Agreement was incorporated into legislation provincially and federally, the federal legisla tion being the Act. Under the Agreement, the natives of North ern Quebec ceded certain rights over the territory in return for specific undertakings given by the governments. The Agree ment provided for the designation of a provincial Administra tor for matters falling within provincial jurisdiction, and a fed eral Administrator for matters under federal jurisdiction. It provided for environmental and social impact assessments of, inter alia, energy production developments. A developer was

required to submit the impact statement to "the Administrator" who would forthwith transmit it to a (federal) Environmental and Social Impact Review Panel or a (provincial) Environmen tal and Social Impact Review Committee. The agreement fur ther provided that the Administrator should decide whether an assessment is required, as well as its nature and extent.

Initially, the respondent sought to have the Great Whale River Hydroelectric Project subjected to a federal environmen tal review. Then, in November, 1990, the federal and provin cial governments entered into an agreement to carry out a joint assessment. That agreement provided that the assessment be carried out in accord with the federal Environmental Assess ment Review Process Guidelines; but the assessment was to be submitted to the provincial Administrator only.

Held, mandamus should issue.

The reference to the "Administrator" in the singular includes, under subsection 33(2) of the Interpretation Act, the plural. The Agreement provides that the two review bodies may be combined only by agreement of the federal govern ment, the provincial government and the Cree Regional Authority, and that the combined review shall be without prejudice to the rights guaranteed to the Cree. Two separate review processes are thus distinctly contemplated. The bipar tite deal between the two governments clearly lacks the condi tion of mutuality among the three parties, and the excluded party, the Cree, clearly view the arrangement as being prejudi cial to their interests. In the same section, the Agreement pro vides that a project not be submitted to more than one review "unless such project falls within the jurisdiction of both Qué- bec and Canada". The logical conclusion is that, where a pro ject does touch upon both jurisdictions, it is to be submitted to both a federal and a provincial review. The Great Whale Pro ject affects matters of federal competence, including migratory birds, fisheries, marine mammals, Indians and Indian lands, and navigable waters, and matters of provincial competence, namely local works and undertakings and hydroelectric devel opments. The federal Administrator therefore has a public, non-discretionary duty to carry out an independent federal environmental review of the project.

Inter-delegation by the federal Crown to a provincial author ity is only constitutionally valid if it is done expressly by act of Parliament and the powers delegated are expressly made revo cable. Here, there is neither a statutory grant of matters within federal jurisdiction to the provincial Administrator with respect to the JBNQ Agreement, nor the requisite revocation mechanism. The Agreement therefore cannot and does not delegate any of the federal assessment authority to the provin cial Administrator, and there is no power in the provincial Administrator to deal with the impact of the project on areas of federal competence.

The surrender by an Indian band of its interest in land to the federal government creates a fiduciary obligation on the part of

the government towards that band. If it did not already have a fiduciary obligation to the Cree, the federal government assumed one when it extinguished their native rights by sub section 3(3) of the Act. Treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians. The onus lies on the party who would prove the Crown's intent to extinguish Indian rights, and that intention must be clear and plain. The federal government could not extinguish the right to the assessment procedures provided by sections 22 and 23 of the JBNQ Agreement except by doing so expressly. Native rights under the Agreement are also protected by section 35 of the Constitu tion Act, 1982. The JBNQ agreement having been ratified by statute, the terms of the later, bipartite arrangement cannot be substituted for the statutorily imposed duty. As the review pro vided for by the new agreement is to be carried out under the federal EARP Guidelines, any recommendations flowing therefrom would be of no effect with respect to a provincial undertaking. There being no federal permit or authorization required, the project could not be delayed for adverse impacts on areas of federal jurisdiction.

Mandamus will lie against a Crown servant in his official capacity to compel performance of a duty owed to the public, provided that the applicant has a legal right to such perform ance, has demanded that the act be performed, and has been refused. A person performing functions of a public nature is a Crown servant unless that person has discretionary powers which can be exercised independently. The Administrator has no discretionary powers, but only positive duties. The Cree have a right, under the JBNQ Agreement, to exact performance of the Administrator's public duty to carry out an environmen tal assessment. There has been demand and refusal.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act approving the Agreement concerning James Bay and Northern Québec, S.Q. 1976, c. 46, s. 2.

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(10),(12),(24),(29), 92(10), 92A (as enacted by the Constitution Act, 1982, R.S.C., 1985, Appendix II, No. 44, s. 50).

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35.

Interpretation Act, R.S.C., 1985, c. 1-21, s. 33(2).

James Bay and Northern Quebec Native Claims Settle ment Act, S.C. 1976-77, c. 32, s. 3(1),(2),(3).

CASES JUDICIALLY CONSIDERED APPLIED:

Calder et al. v. Attorney-General for British Columbia, [1973] S.C.R. 313; (1973), 34 D.L.R. (3d) 145; [1973] 4 W.W.R. 1; Eastmain Band v. Gilpin, [1987] 3 C.N.L.R. 54 (Que. Prov. Ct.); Bender v. The King, [1949] 2 D.L.R. 318 (Ex. Ct.).

DISTINGUISHED:

Can. Wildlife Fed. Inc. v. Can. (Min. of the Environment), [1990] 2 W.W.R. 69; (1989), 38 Admin. L.R. 138; 4 C.E.L.R. (N.S.) 1; 27 F.T.R. 159; 99 N.R. 72 (F.C.A.).

CONSIDERED:

Canoe Ontario v. Reed (1989), 69 O.R. (2d) 494; 6 R.P.R. (2d) 226 (H.C.); P.E.I. Potato Marketing Board v. Willis, [1952] 2 S.C.R. 392; [1952] 4 D.L.R. 146; Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335; (1984), 13 D.L.R. (4th) 321; [1984] 6 W.W.R. 481; 59 B.C.L.R. 301; [1985] 1 C.N.L.R. 120; 20 E.T.R. 6; 55 N.R. 161; 36 R.P.R. 1; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; (1987), 38 D.L.R. (4th) 321; [1987] 3 W.W.R. 1; 46 Man. R. (2d) 241; 25 Admin. L.R. 20; 87 CLLC 14,015; 18 C.P.C. (2d) 273; 73 N.R. 341; Karavos v. Toronto & Gillies, [1948] 3 D.L.R. 294; [1948] O.W.N. 17 (Ont. C.A.); O'Grady v. Whyte, [1983] 1 F.C. 719; (1982), 138 D.L.R. (3d) 167; 42 N.R. 608 (C.A.).

REFERRED TO:

Whitbread v. Walley, [1990] 3 S.C.R. 1273; (1990), 77 D.L.R. (4th) 25; [1991] 2 W.W.R. 195; 52 B.C.L.R. (2d) 187; 120 N.R. 109; R. v. Sparrow, [1990] 1 S.C.R. 1075; [1990] 4 W.W.R. 410; 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.

AUTHORS CITED

de Smith, S.A. Judicial Review of Administrative Action, 4th ed. by J. M. Evans, London: Stevens & Sons Ltd., 1980.

COUNSEL:

James A. O'Reilly, Kathleen Lawand, P. W. Hutchins and F. S. Gertler for applicants. J. M. Aubry and R. Leblanc for respondent. M. Yergeau, Georges Emery, Q.C., Sylvain Lussier and Line Lacasse for intervenor, Hydro - Québec.

Pierre Lachance, Alain Gingras and Christiane Cantin for intervenor, Procureur général du Québec.

John D. Hurley and Gérard Dugré for inter- venor Makivik.

SOLICITORS:

O'Reilly, Mainville, Montréal, for applicants.

Deputy Attorney General of Canada for respon dent.

Desjardins, Ducharme, Montréal for intervenor, Hydro -Québec.

Deputy Attorney General of Quebec for inter- venor, Procureur général du Québec.

Byers, Casgrain, Montréal, for intervenor, Makivik.

The following are the reasons for order rendered in English by

ROULEAU J.: This motion on behalf of the appli cants seeks to obtain an order of mandamus, or in the alternative, mandatory injunctive relief, ordering the respondent Raymond Robinson, in his capacity as federal Administrator, to comply with the federal environmental and social impact assessment and review procedures contemplated by sections 22 and 23 of the "James Bay and Northern Quebec Agree ment" ("JBNQ Agreement") and the James Bay and Northern Quebec Native Claims Settlement Act ("JBNQ Act"), S.C. 1976-77, c. 32, concerned with the proposed Great Whale River Hydroelectric Pro ject in Northern Quebec.

Subsequent to the commencement of this action, the respondent Raymond Robinson was replaced by one Michel Dorais; since he was sued in his official capacity, the parties agreed that my order may be directed to Michel Dorais.

The issue before the Court arises out of a dispute with respect to the JBNQ Agreement which was exe cuted in 1975. The signatories are the Governments of Canada, the Province of Quebec, the James Bay Development Corporation, Hydro -Québec, the Grand Council of the Crees of Quebec and the Northern Quebec Inuit Association. The JBNQ Agreement was ratified and declared valid by both a federal as well as a provincial statute: the James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-77, c. 32, subsection 3(1) and of An Act approving the Agreement concerning James Bay and Northern Qué- bec, S.Q. 1976, c. 46, section 2. As a result of this Agreement, the Cree and Inuit of Northern Quebec

conceded and relinquished certain rights they had over the territory in exchange for specific guarantees and undertakings given by both the federal and pro vincial governments. The purpose was to plan and control future development of the Northern Quebec Region.

It should be pointed out that this matter first came before me in March, 1991, at which time the jurisdic tion of this Court was challenged. On March 13, 1991, I determined the authority of this Court to hear the motion [[1991] 2 F.C. 422]; the Federal Court of Appeal upheld my decision [[1991] 3 F.C. 533]. In their decision the Court of Appeal determined [at pages 551-552] that since the Agreement had been ratified by statute, the contract derives "all of its legal force even as a contract from the laws which are to give it effect and validity. There is, moreover, no confusion of jurisdiction, since both Canada and Quebec are to legislate `subject to ... the legislative jurisdiction of Parliament and the National Assem bly.' It matters not whether the validating legislation is a single act by each of Parliament and the National Assembly or a congeries of legislation."

The present debate, which lasted three days, from July 16 to July 19, was to determine, on the merits, the initial remedy sought. I am hereby reproducing portions of my reasons of March 13, 1991, for the purposes of clarity and to better situate the issues [at pages 425-427]:

In recent months, the government of Quebec along with the James Bay Corporation and Hydro -Québec have made public their intention to proceed 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 tenders for the clearing for an access road as well as its construction. The Grand Coun cil of the Cree became aware of this initiative and were press ing federal authorities to initiate environmental review proce dures 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 proceedings before this Court seeking mandamus or an injunction against the appointed federal administrator, Mr. Raymond Robinson [Mr. Michel Dorais]. Ultimately the relief requests that he conduct environmental and social impact assessment and review procedures 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 envi ronmental assessment should be undertaken since the project involved matters of federal jurisdiction. He contended that sec tions 22 and 23 of the Agreement applied and he suggested a cooperative approach between both levels of government. The letter went on to indicate that federal officials would look for ward 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 important that the environmental assessment be conducted as objectively and independently as possible.

On November 28, 1989, the federal Minister of the Environ ment once again wrote to the newly appointed Minister of the Environment of the Province of Quebec bringing to his atten tion 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 November, 1989, Mr. Raymond Robinson, the federal administrator, corresponded with the vice-president of environment of Hydro -Québec and reiterated that this project was subject to a federal environmental review procedure pursuant to sections 22 and 23 of the Agreement. He further requested a summary or outline of the project and con firmed that pursuant to his mandate, he had appointed a tribu nal to initiate a study. He also confirmed that he considered that the federal government had an obligation to undertake these studies in light of recent decisions of the Federal Court of Canada and, more particularly, in light of the EARP Guide lines [Environmental Assessment and Review Process Guide lines 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, President 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 Hudson's Bay. He advises that the federal appoin tees are prepared to work in collaboration with their provincial counterparts and he is anxious that a joint agreement be rati fied. 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 Agree ment and he seeks a cooperative effort.

At a meeting in November of 1990, Mr. Robinson changes his position and informs the Cree that he has no mandate to

apply federal impact assessment review procedure under the Agreement.

As noted, Mr. Robinson abruptly reversed his pre vious position at a meeting in late November, 1990; he stated that he had received legal advice which pre vented him from applying the federal review proce dure under the JBNQ Agreement. As a result, these proceedings were initiated.

Counsel for the applicants referred me to an Agreement, entitled "Entente Fédérale- Provinciale—Evaluation Environnemental Conjointe- Complexe Grande Baleine", dated November 15, 1990 which was executed by the provincial and fed eral authorities on November 25, 1990 and February 12, 1991, respectively, to the exclusion of the aborig inal signatories. I will hereinafter refer to this docu ment as the "Agreement of November 15, 1990". It was suggested that perhaps this new arrangement may have been persuasive in deterring Mr. Robinson from any further active participation.

Essentially, this most recent understanding out lined the terms of a new joint environmental assess ment study similar to the one already contemplated by the JBNQ Agreement, but to be undertaken pursu ant to the federal Environmental Assessment Review Process ("EARP") Guidelines. This new initiative, though similar procedurally to that agreed to in the JBNQ Agreement, was nevertheless concluded with out the consent of all the initial signatories to the Agreement, primarily, the Grand Council of the Crees and the Northern Quebec Inuit Association. It directs that a joint environmental impact study would be conducted into all matters to which the JBNQ Agreement relates; the federal review would be sub mitted to the Quebec Administrator as appointed under the JBNQ Agreement, and it eliminates the participation of a separate federal Administrator. I note that the Agreement concludes that although the Quebec authorities have agreed that some type of cooperative initiative is required, they reserve the right to challenge the validity of any environmental assessment conducted pursuant to the EARP Guide lines.

The contentious issue concerns the alleged require ment under sections 22 and 23 of the JBNQ Agree-

ment of the active participation by two "Administra- tors" and two parallel impact reviews; one responsible for matters involving federal jurisdiction and the other concerned with issues relating to pro vincial authority. Section 22 of the Agreement is entitled "Environment and Future Development Below the 55th Parallel"; section 23 concerns "Envi- ronment and Future Development North of the 55th Parallel".

For purposes of clarity, I hereby reproduce para graph 22.1.1 of the JBNQ Agreement, defining the Administrator for purposes of development south of the 55th parallel, and paragraphs 23.1.2 and 23.1.6 with respect to development north of the 55th paral lel:

22.1.1 "Administrator" shall mean:

i) In the case of matters respecting provincial jurisdic tion, 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 func tions 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 I, the Cree Local Government Administrator responsible for the protection of the environment.

23.1.2 In the case of matters respecting federal jurisdiction, "Administrator" or "Federal Administrator" means the Federal Minister of Environment or any other person or persons authorized from time to time by the Governor in Council to exercise functions described in this Sec tion;

23.1.6 In the case of matters respecting provincial jurisdiction, "Administrator" or "Québec Administrator" means the director of the Québec Environmental Protection Ser vice or his successor, or any person or persons author ized from time to time by the Lieutenant-Governor in Council to exercise functions described in this Section;

Following both paragraphs, schedules are appended.

Schedule 1 reads "Future Developments Automati cally Subject to Assessment"; item 3 thereof is headed "Energy Production":

(a) Hydroelectric power plants and their associated works

(b) Storage and water supply reservoirs

(d) Extraction and processing of energy yielding materials

(e) Fossil-fuel fired power generating plants above three thousand (3,000) kilowatts.

It is clear that the Great Whale Project, a hydro electric power plant and associated works, is there fore subject to the environmental and social impact assessment and review procedures outlined in the Agreement.

Schedule 2, which is of no concern at this time, refers to "Future Development Exempt from the Requirement for Impact Assessment" and Schedule 3 refers to "Contents of an Environmental and Social Impact Statement".

Within Schedule 3 it is declared that the objective of the Environmental and Social Impact Statement is to identify and assess clearly and in as factual a man ner as possible the environmental and social impact induced by the project, especially concerning the Cree populations potentially affected. It goes on to indicate that the impact statement is to ensure that environmental and social considerations form an integral part of a decision-making process; that alter natives to any proposed action will be evaluated with a view to minimize within reason impact on native people and wildlife resources; that measures will be incorporated in proposed development so as to mini mize within reason expected negative impacts. Finally, it states, at page 332:

In general, the impact assessment procedure should contribute to a further understanding of the interactions between Native People, the harvesting of wild life resources and the economic development of the Territory, and also to promote understand ing of ecological processes. The impact statement is expected to be short and concise and contain an adequate guide to the contents and to the conclusions of the study, and it should also

contain a clear summary containing the essential arguments and findings of the proponent. The statement may be in French or in English at the option of the proponent.

A reading of sections 22 and 23 of the Agreement appears to suggest that both a provincial as well as a federal Administrator are to be appointed for the pur poses of supervising the environmental impact of any future development and to see to the protection of areas of their respective jurisdictions; federal respon sibility including, of course, the Indian and Inuit peo ple of the region. The Agreement specifically indi cates that the federal Administrator is to set up evaluating committees to determine if the develop ment is to have any significant impact on the Indian and Inuit people or the wildlife resources of the terri tory. He is under no obligation to proceed with an assessment in the event that the development contem plates no significant 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, result ing in drastic changes to the traditional way of life.

Respondent's and intervenors' position

It is the respondent's and intervenors' position that the JBNQ Agreement does not require that an impact assessment be performed by both the federal and provincial authorities; that since the project is exclusively within provincial jurisdiction, by virtue of subsection 92(10) (local works and undertakings), and section 92A [as enacted by the Constitution Act, 1982, R.S.C., 1985, Appendix II, No. 44, s. 50] (hydroelectric development) 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 Consti tution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]], only a review by the provincial Administra tor is necessary. They further submit that any inci dental incursions in areas of federal interest may be properly included in the provincial study; that the JBNQ Agreement does not require the federal author ities to conduct an independent and separate environ mental study even though the parties agree that the

I Save and except the Makivik Corporation who support the applicants' position.

project involves matters of federal jurisdiction such as Indians and Indian lands, fish and navigable waters, marine mammals and migratory birds, under subsections 91(10),(12),(24) and (29) of the Constitu tion Act, 1867.

They argued that the Great Whale Project, being the construction and operation of a hydroelectric plant, is exclusively within the provincial domain, by virtue of subsection 92(10) and section 92A of the Constitution Act, 1867. Accordingly, counsel submit that any undertaking or project must be either federal or provincial, not both; that this project is provincial and therefore a review carried out exclusively by the provincial "Administrator" is adequate; further, that the JBNQ Agreement contemplates, by implication, clothing the provincial Administrator with power to examine environmental repercussions in areas of fed eral interest since they are merely incidental to what is essentially a provincial project.

It was finally argued that the federal Administrator does not have a duty to act in this case, since the active participation of the federal Administrator can only arise when the proponent of the development submits a project description to him pursuant to para graph 22.5.1 or 22.5.11; or upon receipt of a recom mendation from the Evaluating Committee or the Screening Committee pursuant to paragraph' 22.5.5 or paragraph 23.4.9 respectively. As the Great Whale Project has not been submitted to the federal Admin istrator, it is said that the federal Administrator has no duty to act.

Applicants' position

Counsel for the applicants argues that the Great Whale Project involves matters of both federal and provincial jurisdiction; accordingly, it is their posi tion that sections 22 and 23 of the JBNQ Agreement provide for parallel review procedures, to be carried out concurrently by the federal and provincial review bodies. He further submits that mandamus is an appropriate remedy, on the basis that the federal Administrator has a non-discretionary public duty to carry out the required review procedures; further, that

the review procedures contained in sections 22 and 23 of the JBNQ Agreement are "statutory rights, privileges or benefits" to which the Crees are entitled by virtue of subsection 3(2) of the JBNQ Act, and by virtue of section 35 of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Public duty

The question of whether there is a public duty on the federal Administrator to perform an independent assessment and review in accordance with the JBNQ Agreement is the primary question in dispute between the parties.

Paragraphs 22.5.15 and 23.4.9 of the JBNQ Agree ment impose a mandatory duty on the federal Admin istrator to decide whether or not an environmental and social impact assessment and review is required, as well as to determine the nature and extent of any such assessment and review:

22.5.15 The Administrator shall, consistent with the provi sions of the Agreement, and in particular this Section, and after considering among other possible factors the said recommendations, decide as the case may be, whether or not assessment and review shall be required and/or the nature and extent of such assess ment and review and shall act in the manner stipulated in paragraphs 22.5.4 or 22.5.5 as the case may be. In the event that the Administrator cannot accept the rec ommendations of the Evaluating Committee or wishes to modify such recommendations he shall, before deciding, consult with the Evaluating Committee so as to explain his position and discuss same before for mally informing the proponent or taking action thereon.

23.4.9 The Federal Administrator shall, consistent with the provisions of this Section, and after considering among other possible factors the said recommenda tions, decide as the case may be, whether or not an assessment and review shall be required and/or the nature and extent of such assessment and review. In the event that the Federal Administrator cannot accept the recommendations of the Screening Committee or wishes to modify such recommendations he shall, before deciding, consult with the Screening Commit tee so as to explain his position and discuss same before formally informing the proponent or taking action thereon. [Emphasis added.]

Paragraphs 22.6.15 and 23.4.23 assign to the fed eral Administrator the obligation to either advise the proponent (developer) respecting the alternatives submitted or to decide, based on the environmental and social impact considerations, whether or not a proposed development should proceed:

22.6.15 The Administrator, consistent with the provisions of the Agreement, and in particular this Section, and after considering among other possible factors the rec ommendations of the Review Committee or the Review Panel shall:

a) In the case of an impact statement at a preliminary stage prepared pursuant to paragraph 22.5.15 or in the case of an inadequate statement, advise the pro ponent respecting the alternatives submitted or, further assessment required, or

b) In the case of an impact statement submitted at a stage where a final decision may be made, decide whether or not on the basis of the environmental and social impact considerations the development should proceed and if so upon what terms and con ditions, including if appropriate, preventive or remedial measures.

23.4.23 The Federal Administrator, consistent with the provi sions of this Section and after considering among other possible factors the recommendations of the Review Panel shall:

a) In the case of an impact statement at a preliminary stage prepared pursuant to this Section or in the case of an inadequate statement, advise the propo nent respecting the alternatives submitted or, fur ther assessment required or,

b) In the case of an impact statement submitted at a stage where a final decision may be made, decide whether or not, on the basis of the environmental and social impact considerations, the development should proceed and if so, upon what terms and conditions, including if appropriate, preventive or remedial measures. [Emphasis added.]

Despite the prima facie mandatory nature of the duty imposed on the federal Administrator under the preceding sections of the Agreement, the respondent was adamant that the Agreement nevertheless con templated only one review procedure; it was argued that a provincial review would adequately cover all aspects of the requisite assessment; no federal review was therefore necessary.

I would note, however, that paragraph 22.6.4 of the JBNQ Agreement mandates the establishment of a Federal Review Panel:

22.6.4 There is established an Environmental and Social Impact Review Panel (hereinafter referred to as "the Review Panel"), a Federal panel, which shall be the review body respecting development projects in the Territory involving Federal jurisdiction.

A Provincial Review Committee is established pursuant to paragraph 22.6.1:

22.6.1 An Environmental and Social Impact Review Commit tee (hereinafter referred to as "the Review Committee") is established which shall be the review body respect ing development projects in the Territory involving provincial jurisdiction.

In submitting that the Agreement nevertheless con templates only one review process, the respondent pointed to paragraph 22.6.10, which refers to "the Administrator" in the singular, as an indication that only one Administrator is entitled to deal with a given project. Paragraph 22.6.10 reads:

22.6.10 The proponent shall submit the impact statement of the proponent to the Administrator, who shall forth with transmit it to the Review Committee or the Review Panel.

However, subsection 33(2) of the Interpretation Act, R.S.C., 1985, c. I-21, specifies that all words in the singular are taken to include the plural; as well, there is nothing in the wording of this section which can be read to specifically exclude one or the other of the review processes. In my view, express language would be necessary to exclude the requirement of a separate, federal review process specifically provided for in the rest of the Agreement.

In further support of his position, the respondent pointed out that the contents of an Environmental and Social Impact Statement, outlined in Schedule 3 to sections 22 and 23, are identical for both federal and provincial reviews; that in view of this, it would be redundant to have review by both federal and provin cial bodies.

Again, I do not find this argument persuasive. The fact that the items required to be included in a review by both the federal and provincial authorities are

identical does not lead to a conclusion that the focus of a federal and provincial review would be the same.

In my opinion, paragraph 22.6.7 is key to the determination of this matter. It reads as follows:

22.6.7 The Federal Government, the Provincial Government and the Cree Regional Authority may by mutual agree ment combine the two (2) impact review bodies pro vided 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 sub mitted to more than one (1) impact assessment and review procedure unless such project falls within the jurisdiction of both Québec and Canada or unless such project is located in part in the Territory and in part elsewhere where an impact review process is required. [Emphasis added.]

Under the first portion of this paragraph, the Fed eral Government, the Provincial Government and the Cree Regional Authority may agree to combine the federal and provincial impact review authorities but all three parties must agree, and the combined review must be without prejudice to the Crees. It is obvious from this provision that the Crees did not take part in the Agreement envisaging only one review; two sepa rate review processes are distinctly contemplated. Furthermore, the November 15, 1990 Agreement cannot be said to meet the criteria for a combined review as set out in paragraph 22.6.7, supra: not only was the Cree Regional Authority not involved in this Agreement, but it is also abundantly clear from these proceedings that the Crees consider that this bipartite Agreement has caused, or will cause prejudice to them.

The second portion of paragraph 22.6.7 is even more significant. This paragraph clearly contemplates that a project may in fact fall "within the jurisdictions of both Quebec and Canada". The word "unless" reveals that, if such is the case, an exception will be made to the general rule against more than one impact assessment and review procedure. The logical conclusion is that, where a project falls within the jurisdictions of both Quebec and Canada, it will be submitted to more than one impact assessment and

review procedure, i.e.: both a federal and a provincial review.

It is accepted that the Great Whale Project in fact falls within the jurisdiction of both the federal and Quebec governments. The respondent has admitted that the project has an effect on matters of federal legislative competence, which may include migratory birds, fisheries, marine mammals, Indians and Indian lands, and navigable waters. 2 Furthermore, both sides agree that matters of provincial competence are also involved: "local works and undertakings" and hydro electric developments under subsection 92(10) and section 92A of the Constitution Act, 1867, respec tively. Thus, in the case at bar, paragraph 22.6.7 prescribes the application of both a federal and a pro vincial review procedure as described in section 22.

In section 23, concerning developments north of the 55th parallel, the intent to create two separate review bodies, one federal and one provincial, is even more apparent. The federal and provincial review processes are described in separate subsections: sub section 23.4 is devoted to "Federal Environmental and Social Impact Assessment and Review", and sub section 23.3 is entitled "Provincial Environmental and Social Impact Assessment and Review". Paragraphs 23.4.1 and 23.3.2 are reproduced below:

23.4.1 All developments or development projects in the Region, subject to federal jurisdiction, including those of Canada, its agencies and those acting on their behalf, shall be subject to the federal impact assess

2 The intervenor Hydro -Québec argued that it has not yet been established that navigable waters will be affected by the project. According to Hydro -Québec, a waterway is only "navigable" in the sense of s. 91(10) of the Constitution Act, 1867 if it is used for commercial navigation. However, more recent cases would suggest a broader interpretation of s. 91(10) (e.g. Whitbread v. Walley, [1990] 3 S.C.R. 1273). For example, in Canoe Ontario v. Reed (1989), 69 O.R. (2d) 494 (H.C.) Doherty J. held that a river used as a social and communication link between communities was a navigable river. In any event, I accept the argument of counsel for the applicant that the Cree have used the waterways in question for the commercial pur pose of reaching their traplines, which is their livelihood.

ment process in accordance with the provisions of this Sub-Section except when, in the opinion of the Federal Administrator, the same assessment process provides for Native involvement to at least the degree provided in this Section, or when the provisions of paragraph 23.7.5 are applied.

23.3.2 The EQC shall be the preferential and official body responsible as provided herein for participation in the administration and supervision of the environmental and social impact assessment process in the Region with respect to matters and to development projects within provincial jurisdiction.

Paragraphs 23.7.5 and 23.7.6 contain almost the identical provisions as set out in paragraph 22.6.7 described above:

23.7.5 Canada and Québec may by mutual agreement combine the two (2) impact reviews by the EQC and the Federal Review Panel referred to in this Section provided that such combination shall be without prejudice to the rights and guarantees in favour of the Inuit and other inhabitants of the Region established and in accordance with the provisions of this Section.

23.7.6 Notwithstanding the above paragraph, a project shall not be submitted to more than one (1) impact assess ment and review procedure unless such project falls within the jurisdictions of both Quebec and Canada or unless such project is located in part in the Region and in part elsewhere where an impact review process is required.

For the same reasons discussed in respect of para graph 22.6.7, the federal/provincial Agreement of November 15, 1990, does not meet the requirements of a joint review as specified in paragraph 23.7.5. These provisions unquestionably anticipate two sepa rate reviews, one federal and one provincial, where a project falls within the jurisdictions of both Quebec and Canada.

The respondent also raised the entirely spurious argument that the federal Administrator has no duty to act until such time as a project description is sub mitted by the proponent of a project under paragraph 22.5.1 or 22.5.11, or alternatively, until the Adminis trator receives a recommendation from the Evaluat ing Committee or the Screening Committee pursuant to paragraph 22.5.5 or paragraph 23.4.9. As both 22.5.5 and 23.4.9 are also triggered by the submis-

sion of a project description from the proponent, the respondent's conception of these sections would vest in the proponent of a project the discretion to decide whether a submission should be made for the purpose of federal or provincial review, with no recourse available should the proponent choose not to do so. Such a conception is ludicrous. It could not reasona bly be seen to be the intention of the parties to the Agreement that the federal Administrator would be powerless to act without the intervention of the pro ponent. He cannot be left to the whim of the devel oper.

I conclude that, under the terms of sections 22 and 23 of the JBNQ Agreement, as explained above, the federal Administrator has a public, non-discretionary duty to carry out an independent federal environmen tal review of the Great Whale Project.

Constitutional questions

1. The respondents submit that since the Great Whale Hydroelectric Project is essentially a provincial undertaking, no parallel impact assessment need be conducted by the federal Administrator, even though it is admitted that areas of federal jurisdiction are incidentally involved. They urge me to conclude that the federal government therefore intended, under the 1975 JBNQ Agreement, to delegate by implication to the provincial Administrator its legislative authority with respect to Indians and Indian lands, marine mammals, fish, migratory birds, and navigable waters. Should I agree, was the delegation constitu tionally valid?

2. Secondly, does the federal government have a fiduciary obligation towards the aboriginal popula tion in Quebec?

3. Was the Agreement dated November 15, 1990 and executed by the federal authorities on February 12, 1991, an unlawful attempt by the federal government to abandon its fiduciary obligation? Further, can this Agreement, directing an impact study to be per formed under the EARP Guidelines, have sufficient force and effect to supplant the 1975 arrangement?

1. Delegation

The respondents argue that any impact of the Great Whale Project on areas of federal responsibility is purely incidental; that the assessment to be per formed by the provincial authorities is sufficient to deal with any such incidental repercussions, and no separate federal review need be undertaken. In con stitutional terms, this presupposes that the federal government has somehow delegated their assessment and review powers to the province.

The jurisprudence indicates that federal inter-dele gation is only constitutionally valid where the delega tion is made expressly by statute and where the pow ers delegated are expressly retrievable by the delegator.

In P.E.I. Potato Marketing Board v. Willis, [1952] 2 S.C.R. 392, the Supreme Court of Canada approved a scheme whereby the federal government delegated to the Prince Edward Island Potato. Marketing Board the authority to regulate the marketing of P.E.I. pota toes outside the province in interprovincial and export trade. Under The Agricultural Products Mar keting Act, [S.C. 1949, c. 16], the federal Parliament conferred the power upon the Governor in Council to grant authority to a provincial board to regulate mat ters of interprovincial and export trade in the same manner as the board exercised in relation to market ing within the province. That authority was made expressly retrievable by the Governor in Council. Pursuant to this power, the Governor in Council passed an order in council to permit the provincial board to regulate marketing outside the province in interprovincial and export trade of provincial prod ucts. The Court determined that "Parliament, legislat ing with reference to inter-provincial and export trade which it and not any provincial legislature had the power to do, may validly authorize the Governor General in Council to confer upon a provincial board appointed under the Prince Edward Island statute of 1940, the power to regulate such marketing."

In the case at bar there is no statutory equivalent to the Agricultural Products Marketing Act; with respect to the JBNQ Agreement, there has been no express statutory delegation by the federal govern ment to the provincial Administrator of matters of federal jurisdiction; nor is there the requisite retrieval mechanism. Consequently, the 1975 JBNQ Agree ment does not and cannot delegate any of the federal assessment authority to the provincial Administrator; there is therefore no power in the provincial Admin istrator to deal with any impact of the project in areas of federal competence.

2. Fiduciary obligation

It is now well established in the jurisprudence that the federal government has a fiduciary obligation towards the aboriginal peoples of Canada (see e.g. R. v. Sparrow, [1990] 1 S.C.R. 1075; Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335). Further more, 3

... treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.

Guerin is authority for the proposition that where an Indian Band surrenders its interest in land to the federal government, the federal government assumes a fiduciary obligation towards the Indian Band in question.

In the case at bar, the federal government has extinguished "all native claims, rights, title and inter ests" pursuant to subsection 3(3) of the James Bay and Northern Quebec Native Claims Settlement Act, and in subsection 3(2), the federal government has guaranteed to the Crees and other beneficiaries under the JBNQ Agreement the "rights, privileges and ben efits" set out in the JBNQ Agreement. Thus, the rights and benefits under the JBNQ Agreement have been given to the Crees in consideration for their signing the Agreement under which their traditional

3 Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 36.

rights were extinguished. The rights extended to the Crees under the JBNQ Agreement include hunting, fishing and trapping rights outlined in section 24. According to subsection 24.11, these rights are expressly guaranteed, protected and given effect to by the environmental review procedures outlined in sec tions 22 and 23:

22.2.2 The said regime provides for:

c) A special status and involvement for the Cree people over and above that provided for in procedures involving the general public through consultation or representative mechanisms wherever such is necessary to protect or give effect to the rights and guarantees in favour of the Native people established by and in accordance with the Agree ment;

d) The protection of the rights and guarantees of the Cree people established by and in accordance with Section 24;

e) The protection of the Cree people, their economies and the wildlife resources upon which they depend;

23.2.2 The said regime provides for:

c) A special status and involvement for the Native people and the other inhabitants of the Region over and above that provided for in procedures involving the general public through consultation or representative mechanisms wher ever such is necessary to protect or give effect to the rights and guarantees in favour of the Native people established by and in accordance with the Agreement;

d) The protection of the rights and guarantees of the Native people established by and in accordance with Section 24;

e) The protection of the Native people, their economies and the wildlife resources upon which they depend;

22.5.1 All developments listed in Schedule I shall automati cally be subject to the impact assessment and review procedures provided for herein. A proponent of a development contemplated by this paragraph shall submit a project description to the Administrator dur ing the preliminary planning stage. This list shall be reviewed by the parties every five (5) years and may be modified by mutual consent of the parties as may be necessary in the light of technological changes and experience with the assessment and review process.

22.5.5 The Administrator shall decide, in a manner consis tent with the provisions of this Sub-Section, and more

particularly only after receiving the recommendation of the evaluating committee pursuant to paragraph 22.5.13, whether a proposed development not contem plated in paragraph 22.5.1 or 22.5.2 shall be assessed and reviewed. In the event that the Administrator decides that a proposed development shall be assessed or reviewed he shall act in the manner stipulated in paragraph 22.5.4.

22.5.11 The proponent shall submit to the Administrator the following preliminary information respecting the pro posed development:

a) In the case of developments" contemplated by para graph 22.5.1;

i) Purpose of the project;

ii) Nature and extent of the proposed develop ment;

iii) Intention to study alternative sites for develop ment where appropriate;

iv) In the case when only one (1) alternative is proposed, reasons why no site alternatives are possible.

b) In the case of development not contemplated in paragraphs 22.5.1 and 22.5.2 information contem plated in i), ii), iii) and iv) above and in addition information and technical data adequate to permit a gross assessment of environmental and social impact of the project by the Evaluating Committee and the Administrator.

24.11.1 The rights and guarantees of the Native people estab lished by and in accordance with this Section shall be guaranteed, protected and given effect to with respect to environmental and social protection by and in accordance with Section 22 and Section 23.

As earlier stated, the Supreme Court of Canada held in Guerin that the surrender of native rights by

an Indian Band to the federal government creates a fiduciary obligation on the part of the federal govern ment towards the Indian Band in question. Further more, as Hall J. stated in Calder et al. v. Attorney- General for British Columbia, [1973] S.C.R. 313, at page 404:

...the onus of proving that the Sovereign intended to extin guish the Indian title lies on the respondent and that intention must he "clear and plain".

I am satisfied that, as in Guerin, the federal gov ernment, if it did not already have an existing fiduci ary obligation towards the Crees, incurred such when it extinguished their native rights pursuant to subsec tion 3(3) of the James Bay and Northern Quebec Native Claims Settlement Act. Secondly, the federal government could not extinguish the rights of the Crees, including their right under paragraph 24.11.1 to the environmental procedures contained in sections 22 and 23, without expressly doing so, as required by Sparrow.

I have already established supra that sections 22 and 23 of the JBNQ Agreement provide for two sepa rate review procedures: one federal and one provin cial. I have confirmed this by the analysis of the fidu ciary obligation of the federal government toward the native population. This, I feel, is sufficient to protect the Crees' right to independent federal reviews under sections 22 and 23 of the JBNQ Agreement. How ever, for any sceptics, I would add that the rights enjoyed by the Crees under the JBNQ Agreement are further protected by subsection 35(1) of the Constitu tion Act, 1982.

In Eastmain Band v. Gilpin, [1987] 3 C.N.L.R. 54 (Que. Prov. Ct.), the Quebec Provincial Court held that the Eastmain Band's right to Category lA lands under paragraph 5.1.2 of the JBNQ Agreement was protected by subsection 35(1) of the Constitution Act, 1982. By analogy, other native rights, such as the right in paragraph 24.11.1 to protection of the native people's hunting, fishing, and trapping rights by sep arate federal and provincial environmental reviews as outlined in sections 22 and 23, will also be protected by section 35.

3. Force and effect of the Agreement of November 15, 1990

The federal/provincial Agreement entered into some sixteen years subsequent to the JBNQ Agree ment purports to substitute the federal environmental review process and to proceed with an assessment in accordance with the EARP Guidelines. It is apparent that this Agreement was intended both to appease and circumvent the native populations who desired to have a separate federal review of matters within fed eral competence as required by the 1975 understand ing; moreover, it appears to have been negotiated in an attempt to free themselves from the duties and responsibilities imposed under the JBNQ Agreement.

In my opinion, the new bipartite (November 15, 1990) agreement cannot legally be substituted by the federal authorities as an answer to their obligations under the JBNQ Agreement. The latter was ratified by statute; the statutorily imposed duty cannot be changed except by enactment. Furthermore, the Agreement cannot be amended or supplanted without the participation of all of the original signatories. Finally, the review to be carried out under the new Agreement is to be in accordance with the EARP Guidelines; any recommendations arising out of such a study can be of no force or effect concerning a pro vincial undertaking, although they may be of some limited use in raising public awareness. Unlike the situation which existed in Can. Wildlife Fed. Inc. v. Can. (Min. of the Environment), [1990] 2 W.W.R. 69 (F.C.A.), there are no federal permits or authoriza tions required in order to proceed with the project; therefore it cannot be delayed in the event of adverse impact on areas of federal jurisdiction.

It is also clear that under the JBNQ Agreement, which was intended to provide specific protection for the native peoples in return for their giving up certain rights, the federal government incurred a fiduciary obligation which is not fulfilled by the new undertak ing and it cannot extinguish the Crees' rights, under paragraph 24.11.1, of the environmental review pro cedure outlined in sections 22 and 23. These rights must be held to be still existing.

Relief sought

The applicants have applied for a mandatory injunction or mandamus, as alternative remedies.

According to de Smith's Judicial Review of Administrative Action, 4th ed., J. M. Evans (London: Stevens 1980), the remedy of mandamus is to be pre ferred to an injunction when relief is sought against a Crown servant; furthermore, mandamus will lie against a Crown servant in his official capacity if the duty is owed not to the Crown but to the public [at pages 445-446]:

In mandamus cases it is recognised that when a statutory duty is cast upon a Crown servant in his official capacity and this duty is one owed not to the Crown but to the public, any per son having a sufficient legal interest in the performance of the duty may apply to the courts for an order of mandamus to enforce it. If, however, the remedy sought is an injunction, it is doubtful whether any such duality can be imputed to a Crown servant; it has been held that when statutory powers or duties are conferred upon him, he exercises them as an officer repre senting the Crown, not in the capacity of a designated officer distinct from the Crown.

In Bender v. The King, [1949] 2 D.L.R. 318 (Ex. Ct.), the Exchequer Court held that a body or person performing functions of a public nature is a servant or agent of the Crown, unless such person has discre tionary powers of his own which can be exercised independently. Under the JBNQ Agreement, the Administrator has no discretionary powers, but only positive duties; I am therefore satisfied that in accor dance with the test set out in Bender, Mr. Dorais as federal Administrator is a servant of the Crown. Con sequently, mandamus would seem to be the appropri ate remedy, even although the advent of the case Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, does not put the injunction remedy out of consideration.

Furthermore, the applicants are "private plaintiffs", seeking to compel a public official to carry out his statutory duties [page 436]:

It is doubtful whether a mandatory injunction will issue at the suit of a private plaintiff to compel a public body to carry out its positive statutory duties, unless the statute is to be inter preted as giving the plaintiff a private right of action for breach

of those duties; the more appropriate judicial remedy (if any) will be a prerogative order of mandamus.

Consequently, I am persuaded that mandamus is the appropriate relief in the circumstances.

The criteria for obtaining the prerogative relief of mandamus are set out by Laidlaw J. of the Ontario Court of Appeal in Karavos v. Toronto & Gillies, [1948] 3 D.L.R. 294 (Ont. C.A.) at page 295, as adopted by the Federal Court of Appeal in O'Grady v. Whyte, [1983] 1 F.C. 719 at page 722:

It is well to refer at the outset to certain fundamental and well- understood rules and principles relating to the remedy by [sic] mandamus. It is properly called and recognized as an extraordinary one, and it is not granted by the Court if an applicant for it has any other adequate remedy. The object and purpose of it is to supply the want of other legal remedies. It is appropriate to overcome the inaction or misconduct of persons charged with the performance of duties of a public nature. The complaining party must, however, clearly establish the right which it is sought to protect, and an order is never granted in doubtful cases: High's Extraordinary Legal Remedies, 3rd ed., 1896, p. 12, art. 9. I do not attempt an exhaustive summary of the principles upon which the Court proceeds on an application for mandamus, but I shall briefly state certain of them bearing particularly on the case presently under consideration. Before the remedy can be given, the applicant for it must show: (1) "a clear, legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced": High, op. cit., p. 13, art. 9; cf. p. 15, art. 10. (2) "The duty whose performance it is sought to coerce by mandamus must be actu ally due and incumbent upon the officer at the time of seeking the relief, and the writ will not lie to compel the doing of an act which is not yet under obligation to perform": ibid., p. 44, art. 36. (3) That duty must be purely ministerial in nature, "plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers": ibid., p. 92, art. 80. (4) There must be a demand and refusal to perform the act which it is sought to coerce by legal remedy: ibid., p. 18, art. 13.

It should be remembered that an order of manda- mus being a form of prerogative relief, the Court has the discretion to decline to award it if, fur example, another legal remedy is equally beneficial, conve nient and effective, or if there was undue delay on the

part of the applicant (de Smith's Judicial Review of Administrative Action, supra, at page 558).

The public duty upon the federal Administrator which is sought to be enforced has already been established. The legal right of the Crees to exact per formance of duties under section 22 of the JBNQ Agreement (dealing with developments south of the 55th parallel) is not in dispute; I am satisfied that the applicants also have legal rights under section 23 of the JBNQ Agreement (dealing with developments north of the 55th parallel). The Cree are included in the definition of "native people" in subsection 1.12, and as beneficiaries under the JBNQ Agreement by virtue of subsection 3.2 thereof are entitled to invoke rights, benefits and privileges under section 23 as well as under section 22.

There has also been the requisite demand and refusal: the evidence indicated that the applicants requested that Mr. Robinson carry out the federal environmental impact assessment procedure under the JBNQ Agreement at meetings held between the Cree Regional Authority, Mr. Robinson and his rep resentatives during 1989 and 1990. As noted earlier, in November 1990, Mr. Robinson informed the applicants that he would not perform the assessment or have it performed.

There are no other remedies provided, under the JBNQ Agreement or elsewhere, for the failure of the federal Administrator to act; mandamus is the only available remedy in the circumstances.

Finally, the applicants cannot be accused of undue delay in applying for mandamus; until the November 15, 1990 Agreement was executed, it was reasonable for the applicants to assume that a federal environ mental review, in accordance with the JBNQ Agree ment, would be carried out. The applicants filed their notice of motion in the Federal Court on February 21, 1991, only nine days after their cause of action arose.

For all the foregoing reasons, I conclude that the Crees' right to an independent parallel federal review has survived and must be honoured.

Before concluding, there were several arguments raised by the federal Crown in this case which are worthy of separate comment.

The Crown submits that this project, under subsec tion 92(10) and section 92A of the Constitution Act, 1867, belongs in the provincial domain. Indeed, no party to these proceedings has disputed that point. In the government's opinion the effect of this is that federal environment assessment which attempted to interfere with the realization of the project would be a breach of basic constitutional principles. Further more, the initiating of an assessment under the EARP Guidelines in areas of federal competence should, it is contended, be adequate. Such an assessment would allow federal authorities to learn of the project's effects on the environment in areas of federal compe tence and to review the issuance of permits or other necessary authorization where appropriate. Accord ingly, if the provincial Administrator is vested with the power to authorize the project, the federal deci- sion-makers could cause the overall development being held to account, by the simple deed of with holding the necessary permits within their fields of competence. Counsel assured me that in accordance with this, the federal government would carefully study all results issued under the EARP assessment, and would take into consideration in the exercise of their decision-making power, the rights and privi leges of the aboriginal communities.

While all of this may be conceivable, it is readily apparent to me that a situation could arise which would lead to a dissimilar result. There is no evi dence before me that any federal authorization or permits will be required. In that case, the scrutiny and protection which this decision-making power is alleged to offer will be of no avail. In any event, if one accepts the federal government's argument that it is willing to comply with its obligation towards the native people of this country, one is at a loss to understand its refusal to fulfil that original contrac tual obligation in the JBNQ Agreement.

Crown counsel also submitted that, if the JBNQ Agreement leads to confusion or is opcn to two possi ble interpretations, it should be construed in such a manner as to ensure that one area of jurisdiction will

not intrude upon the other. In light of the fiduciary obligation imposed upon the federal government in its dealing with the native population, I perceive no ambiguity; the Agreement mandates the protection of the aboriginal people who relinquished substantial rights in return for the protection of both levels of government.

Crown counsel also pointed out to me that Spar row, supra, does not distinguish between the federal and provincial Crown; that the provincial authorities are also responsible for protecting the rights of the native population. I agree. I am not suggesting that the province of Quebec will not be vigilant vis-à-vis the Cree or Inuit populations. However, the issue with which I am charged is to determine the responsi bility of the federal government and whether or not it should live up to its responsibility.

In conclusion, it was apparent that throughout this debate the intervenors were satisfied that the project was primarily within the provincial domain and they took the position that a parallel federal assessment and review was unnecessary and may amount to undue interference in provincial jurisdiction. That may be so, but what they fail to consider is that 16 years ago all parties obviously realized that there were areas exclusive to the federal domain which could be affected by any future development; that further development of Northern Quebec would cer tainly implicate the Inuit and Cree communities. As a result, the 1975 Agreement fully recognized that at some future date two jurisdictions would be involved, as well as the aboriginal people; all parties were cog nizant of the necessity of reducing to writing a proce dure for future cooperation. I find it incomprehensi ble that on the one hand the intervenors, the Attorney General for Quebec and Hydro -Québec declare them selves bound to abide by the JBNQ Agreement, but on the other hand other signatories to the same Agreement are excluded.

Notwithstanding the foregoing, I would caution all parties to proceed in a cooperative spirit. It is in the Crees' best interests to participate with parties wish ing to consult with them in relation to environmental impact study. Incidents such as the Crees' inhospita-

ble reception of members of the Kativik Commission at the Kuujjuarapik airport on June 26 should not be repeated. The federal Administrator should determine as soon as is reasonably possible whether a federal environmental review is required and, if applicable, the nature and extent of such review, pursuant to paragraphs 22.5.15 and 23.4.9 of the JBNQ Agree ment. If the federal Administrator determines that a review is required, it must be carried out as expedi tiously as possible.

Costs to the applicants against the respondent, Raymond Robinson advised and represented here by the Attorney General of Canada. No costs to any of the intervenors.

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