Eastmain Indian Band et al. v. Robinson et al., (1992) 145 N.R. 270 (FCA)

• Judge: Marceau, Décary and Létourneau, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 20, 1992
• Jurisdiction: Canada (Federal)
• Citations: (1992), 145 N.R. 270 (FCA)

Eastmain Indian Band v. Robinson (1992), 145 N.R. 270 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Le Procureur général du Québec (appelant/intervenant) v. La Bande D'Eastmain, La Bande Namaska, La Bande de Mistassini, L'Administration Régionale Crie, The Grand Council of the Crees (du Québec), Le Chef Kenneth Gilpin, Le Chef Adjoint Lawrence Jimiken, Le Chef Henry Mianscum et Philip Awashish (intimés/requérants) and Raymond Robinson, L'Honorable Jean Charest, L'Honorable Tom Siddon, L'Honorable Jean Corbeil et L'Honorable John Crosbie (mis-en-cause/intimés) et Hydro-Québec (mise-en-cause/intervenante)

(A-1071-91)

Indexed As: Eastmain Indian Band et al. v. Robinson et al.

Federal Court of Appeal

Marceau, Décary and

Létourneau, JJ.A.

November 20, 1992.

Summary:

The James Bay and Northern Quebec Agreement was a land claim settlement agreement negotiated in the 1970's among the governments of Canada and Québec, the Grand Council of the Crees and the Northern Québec Inuit Association. It was ratified by Canada in the James Bay and Northern Québec Native Claims Settlement Act, S.C. 1976-77, c. 32. The agreement, inter alia, confirmed the construction of Le Complexe La Grande, which the Attorney General of Quebec argued included the Eastmain hy­droelectric development project then being studied. In 1990, the Government of Quebec authorized Hydro-Quebec to move ahead with the Eastmain hydroelectric project. The applicants (aboriginal parties) applied for mandamus requiring the Federal Adminis­trator appointed under s. 22 of the James Bay and Northern Quebec Agreement to carry out a federal environmental and social impact assessment and review procedure contemplated by s. 22. The applicants also sought mandamus requiring the respondent federal ministers to comply with the federal Environmental Assessment and Review Process Guidelines (E.A.R.P.) Order respect­ing the project.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 49 F.T.R. 241, allowed the application in part. The court held that the Eastmain project was part of Le Complexe La Grande and therefore exempt from the Agreement's environmental regime. The court therefore dismissed the application against the Administrator. The court held that the Eastmain project was, however, subject to the E.A.R.P. Order, and granted mandamus against the federal ministers, requiring them to initiate a study under the Order. The Attorney General of Quebec, the Attorney General of Canada and Hydro-Quebec appealed. The applicant aboriginal parties cross-appealed.

The Federal Court of Appeal allowed the appeals and dismissed the cross-appeal. The court affirmed that the Eastmain project was part of the Le Complexe La Grande and therefore exempt from the environmental regime of the Agreement. The court held, however, that the E.A.R.P. Order did not apply to the Eastmain project.

Indians, Inuit and Métis - Topic 5222

Lands - Land claim agreements - Inter­pretation - The Federal Court of Appeal stated that "we must be careful, in con­struing a document as modern as the 1975 [James Bay and Northern Quebec] Agree­ment, that we do not blindly follow the principles laid down by the Supreme Court in analyzing treaties entered into in an earlier era. The principle that ambiguities must be construed in favour of the Ab­originals rests, in the case of historic treaties, on the unique vulnerability of the aborigi­nal parties, who were not educated and were compelled to negotiate with parties who had a superior bargaining position, in languages and with legal con­cepts which were foreign to them and without adequate representation" - See paragraph 15.

Indians, Inuit and Métis - Topic 5222

Lands - Land claim agreements - Inter­pretation - The James Bay and Northern Quebec Agreement was a land claim set­tlement agreement negotiated in the 1970's among the governments of Canada and Québec, the Grand Council of the Crees and the Northern Québec Inuit Association - It was ratified by Canada in the James Bay and Northern Québec Claims Settle­ment Act - Interested aboriginal peoples argued that since the Agreement was adopted by Parliament it became a statute relating to Indians - Further, the principle of construing ambiguities in treaties in favour of aboriginals applied to such stat­utes relating to Indians - The Federal Court of Appeal rejected this argument - See paragraphs 18 to 20.

Indians, Inuit and Métis - Topic 5222

Lands - Land claim agreements - Inter­pretation - The Federal Court of Appeal stated that "... while the interpretation of agreements entered into with the aborigi­nals in circumstances such as those which prevailed in 1975 must be generous, it must also be realistic, reflect a reasonable analysis of the intention and interests of all the parties who signed it and take into account the historical and legal context out of which it developed. To seek ambiguities at all costs - and there will always be room for this in documents of such mag­nitude - and to interpret any ambiguity systematically in favour of the aboriginal parties would be to invite those parties to use the vaguest possible terms in the hope that they might then apply to the courts and the certainty that, by so doing, they would gain more than the actual fruit of the negotiations ..." - See paragraph 23.

Indians, Inuit and Métis - Topic 5222

Lands - Land claim agreements - Inter­pretation - The federal government, the Province of Quebec, the Northern Quebec Inuit Association and the Grand Council of the Crees negotiated the James Bay and Northern Quebec Land Claim Agreement whereby the native people gave up rights in return for guarantees, one of which was that environmental impact assessments would be carried out before any future development was undertaken - A hydro-electric project, Le Complexe La Grande, was exempt from the agreement - The Federal Court of Appeal affirmed that the Eastmain Project, a hydro generating sta­tion to be constructed on the Eastmain River in the 1990's, was included as part of the Le Complexe La Grande, and there­fore exempt from the environmental review requirements of the agreement - See paragraphs 26 to 38.

Indians, Inuit and Métis - Topic 5222

Lands - Land claim agreements - Inter­pretation - The Federal Court of Appeal held that the Interpretation Act (Can.) did not apply to the James Bay and Northern Quebec Land Claim Agreement - See paragraph 56.

Indians, Inuit and Métis - Topic 5222

Lands - Land claim agreements - Inter­pretation - The federal government, the Province of Quebec, the Northern Quebec Inuit Association and the Grand Council of the Crees negotiated the James Bay and Northern Quebec Land Claim Agreement whereby the native people gave up rights in return for guarantees, one of which was that environmental impact assessments would be carried out before any future development was undertaken - Section 22 of the Agreement provided for federal and provincial administrators to see that the environmental commitments were carried out - The Federal Court of Appeal inter­preted s. 22 and held that the federal Ad­ministrator does not exercise functions on development projects under provincial jurisdiction - See paragraphs 39 to 60.

Indians, Inuit and Métis - Topic 5222

Lands - Land claim agreements - Inter­pretation - In 1975 the federal govern­ment, Quebec, and Cree and Inuit repre­sentatives negotiated the James Bay and Northern Quebec Land Claim Agreement - The native people were guaranteed that environmental impact assessments would be carried out before any future develop­ment was undertaken - A hydro-electric project, including the 1990 Eastmain River project, was exempt from the environ­mental requirements of the agreement - The Federal Court of Appeal held that the federal Environmental Assessment and Review Process Guidelines Order adopted in 1984 did not apply to the Eastmain River project because an irrevocable deci­sion was made in 1975 to go ahead with the project - See paragraphs 61 to 65 - Further the conditions which trigger the order had not been fulfilled - See para­graphs 66 to 88.

Pollution Control - Topic 1803

Environmental assessments or impact studies - Agreements respecting - Inter­pretation - [See fourth, sixth and seventh Indians, Inuit and Métis - Topic 5222 ].

Pollution Control - Topic 1842

Environmental assessments or impact studies - Environmental Assessment and Review Process Guidelines Order (E.A.R.P. Guidelines Order) - Interpreta­tion - See [seventh Indians, Inuit and Métis - Topic 5222 ].

Cases Noticed:

Cree Regional Authority v. Québec (Procureur général), [1991] 3 F.C. 533; 127 N.R. 52, refd to. [paras. 1, 20].

Nowegijick v. Minister of National Rev­enue et al., [1983] 1 S.C.R. 29; 46 N.R. 41; 83 D.T.C. 5041; 144 D.L.R.(3d) 193, refd to. [paras. 13, 19].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81; 3 C.N.L.R. 46, refd to. [paras. 15, 19].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 2, refd to. [paras. 15-17, 21].

R. v. White and Bob (1964), 50 D.L.R.(2d) 613 (B.C.C.A.), refd to. [para. 15].

New Zealand Maori Council v. Attorney General, [1987] 1 N.Z.L.R. 641 (C.A.), refd to. [para. 22].

Cree Regional Authority v. Québec (Procureur général), [1992] 1 F.C. 440; 47 F.T.R. 251 (T.D.), refd to. [para. 39].

Great Whale Case - see Cree Regional Authority v. Québec (Procureur général).

Friends of the Oldman River Society v. Canada (Minister of Transport and Min­ister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [paras. 67-72, 80, 81, 85, 96].

Carrier-Sekani Tribal Council et al. v. Canada (Minister of the Environment) et al. (1992), 141 N.R. 125 (F.C.A.), refd to. [paras. 67, 68, 85, 96].

Alcan Aluminium Ltd. et al. v. Carrier-Sekani Tribal Council - see Carrier-Sekani Tribal Council et al. v. Canada (Minister of the Environment) et al.

Bell v. Corp. of Quebec (1879-80), 5 A.C. 84, refd to. [para. 82].

Bak v. Huat, [1923] A.C. 429, refd to. [para. 82].

Quebec (Attorney General) v. Fraser (1906), 37 S.C.R. 577, affd. [1911] A.C. 489, refd to. [para. 82].

Wyatt v. Quebec (Attorney General) - see Quebec (Attorney General) v. Fraser.

Bertram S. Miller Ltd. - see Miller (Bert­ram S.) Ltd.

Miller (Bertram S.) Ltd. v. Canada, [1986] 3 F.C. 291; 69 N.R. 1 (F.C.A.), refd to. [para. 84].

Caterpillar Tractor Co. v. Babcock Allatt Ltd., [1983] 1 F.C. 487 (T.D.), refd to. [para. 84].

Québec (Procureur général) v. Société du parc industriel du centre du Québec, 79 C.A. 357, refd to. [para. 90].

Statutes Noticed:

Agreement Concerning James Bay and Northern Quebec, An Act Approving the, S.Q. 1976, c. 46, generally [para. 1].

Constitution Act, 1867, sect. 91 [para. 96]; sect. 91(24) [paras. 48, 69]; sect. 92A, sect. 92(5), sect. 92(10), sect. 92(16) [para. 48].

E.A.R.P. Guidelines Order - see Environ­mental Assessment and Review Process Guidelines Order.

Environment Quality Act, R.S.Q. 1977, c. Q-2, sect. 22 [para. 90].

Environmental Assessment and Review Process Guidelines Order, SOR/84-467, generally [paras. 61-65]; sect. 3 [para. 64].

Federal Court Rules, rule 412(2) [para. 84].

Fisheries Act, R.S.C. 1985, c. F-14, sect. 2 [para. 76]; sect. 20 [paras. 75, 76]; sect. 21, sect. 22, sect. 29, sect. 30 [para. 75]; sect. 34 [para. 79]; sect. 35 [paras. 72-79, 96]; sect. 37 [para. 75].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 2(1), sect. 3(1), sect. 33(2) [para. 56].

Interpretation Act, R.S.Q. 1977, c. I-16, sect. 54 [para. 56].

James Bay and Northern Québec Agree­ment, sect. 2.5 [para. 63]; sect. 8 [paras. 27, 28]; sect. 8.1.2 [paras. 26-36, 77, 94, 96]; sect. 8.1.3 [paras. 29, 30, 36, 37, 94]; sect. 8.18 [paras. 31, 61-64, 96]; sect. 8.9.1 [para. 27]; sect. 8.17 [paras. 27, 77]; sect. 22 [paras. 6, 42-60, 94]; sect. 22.1.1 [para. 42]; sect. 22.6.7 [para. 49]; sect. 25.1.13 [paras. 27, 32].

James Bay and Northern Québec Native Claims Settlement Act, S.C. 1976-77, c. 32, generally [paras. 1, 64].

Navigable Waters Protection Act, R.S.C. 1985, c. N-22, sect. 5 [paras. 80, 96].

Authors and Works Noticed:

Côté, P.A., Interprétation des lois, 2 e éd., 1990, p. 75 [para. 56].

La Forest, G.V., Water Law in Canada - The Atlantic Provinces (1973), p. 180 [para. 82].

Lord, G., Le Droit québécois de l'eau, 1977, p. 61 [para. 82].

Counsel:

Jean Bouchard and Pierre Lachance, for the appellant;

James O'Reilly, Peter W. Hutchins, Frank­lin S. Gertler and Kathleen Lawand, for the respondents;

René Leblanc and Jean-Marc Aubry, for the mise-en-cause, Raymond Robinson et al.;

Sylvain Lussier and Michel Yergeau, for the mise-en-cause, Hydro-Québec.

Solicitors of Record:

Attorney General of Quebec, Montreal, Quebec, for the appellant;

Hutchins, Soroka & Dionne, Montreal, Quebec, for the respondents;

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the mise-en-cause, Raymond Robinson et al.;

Desjardins, Ducharme, Montreal, Quebec, and Lavery, De Billy, Montreal, Quebec, for the mise-en-cause, Hydro-Québec.

This appeal was heard in Montreal, Que­bec, on October 13-16, 1992, before Mar­ceau, Décary and Létourneau, JJ.A., of the Federal Court of Appeal. The decision of the court was delivered on November 20, 1992, including the following opinions:

Décary, J.A. (Létourneau, J.A., con­curring) - see paragraphs 1 to 91;

Marceau, J.A. (concurring) - see para­graphs 92 to 97.