Quebec (Attorney General) v. Moses et al., (2010) 401 N.R. 246 (SCC)

JudgeMcLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
CourtSupreme Court (Canada)
Case DateJune 09, 2009
JurisdictionCanada (Federal)
Citations(2010), 401 N.R. 246 (SCC);2010 SCC 17;[2010] 1 SCR 557;401 NR 246

Que. (A.G.) v. Moses (2010), 401 N.R. 246 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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

Temp. Cite: [2010] N.R. TBEd. MY.012

Attorney General of Quebec (appellant) v. Grand Chief Dr. Ted Moses, Grand Council of the Crees (Eeyou Istchee), Cree Regional Authority, Attorney General of Canada, Honourable David Anderson, in his capacity as Minister of Environment, Canadian Environmental Assessment Agency and Lac Doré Mining Inc. (respondents) and Attorney General for Saskatchewan and Assembly of First Nations (intervenors)

(32693; 2010 SCC 17; 2010 CSC 17)

Indexed As: Quebec (Attorney General) v. Moses et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

May 13, 2010.

Summary:

The Cree and Inuit communities and the governments of Quebec and Canada signed the James Bay and Northern Quebec Agreement (the "Treaty") in 1975. The Treaty set out comprehensive procedures for environmental impact assessments. In accordance with the Treaty's procedures, the proponent of a vanadium mining project within the territory covered by the Treaty submitted an impact statement, which acknowledged a significant impact on fish habitat. Federal officials concluded that the project's impact on fisheries engaged s. 35(2) of the Fisheries Act and required a comprehensive study pursuant to the Regulations under the Canadian Environmental Assessment Act (CEAA). Federal officials informed the Cree that the study would be conducted by a review panel under the CEAA and not through the federal assessment procedure provided for in s. 22 of the Treaty. The Cree commenced an action for a declaration (i) that the CEAA was inapplicable in the Treaty Territory because it was inconsistent with the Treaty, and (ii) that the federal and provincial environmental assessments under the Treaty should be conducted instead in light of the nature and impact of the project.

The Quebec Superior Court, in a decision cited as 2006 QCCS 1832, concluded that only the provincial process provided for in the Treaty was applicable to the project. The Cree appealed.

The Quebec Court of Appeal, in a decision cited as 2008 QCCA 741, concluded that the CEAA, in conjunction with s. 35 of the federal Fisheries Act, validly triggered a federal environmental assessment. The court also held that there was an inconsistency between the CEAA's process and s. 22 of the Treaty where the consultative and participatory rights guaranteed to the Cree in the Treaty were not available under the CEAA. The court concluded that the CEAA assessment was valid owing to the external trigger, but because the Treaty was paramount, the CEAA assessment process was inapplicable. To the extent of the inconsistency, the Treaty's federal assessment process prevailed. The Attorney General of Quebec appealed.

The Supreme Court of Canada, LeBel, Deschamps, Abella and Charron, JJ., dissenting, dismissed the appeal, but for reasons that differed somewhat from those of the Quebec Court of Appeal. The court varied the order of the Court of Appeal to provide that if the vanadium mine project was approved pursuant to the Treaty, the proponent could not proceed with the work without authorization under s. 35(2) of the Fisheries Act, and that the issuance of any such authorization was to comply with the CEAA in accordance with its procedures, as well as the Crown's duty to consult with the First Nations in relation to matters that may adversely affect their Treaty rights.

Constitutional Law - Topic 603

Powers of Parliament and the legislatures - Delegation of power - What constitutes a delegation - [See sixth Indians, Inuit and Métis - Topic 4404 ].

Constitutional Law - Topic 5995

Federal jurisdiction (s. 91) - Fisheries - Pollution control - [See fourth, sixth and seventh Indians, Inuit and Métis - Topic 4404 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - [See first Indians, Inuit and Métis - Topic 4404 ].

Indians, Inuit and Métis - Topic 506

Rights - General - Constitution Act, 1982, s. 35 - Interpretation - [See Indians, Inuit and Métis - Topic 4402 ].

Indians, Inuit and Métis - Topic 4402

Treaties and proclamations - General - What constitutes a treaty - The Cree and Inuit communities and the governments of Quebec and Canada signed the James Bay and Northern Quebec Agreement in 1975 (the "James Bay Treaty") - The Supreme Court of Canada stated that "There is no doubt that when the First Ministers' Conference on Aboriginal Constitutional Affairs agreed in 1983 to amend s. 35 of the Constitution Act, 1982 to provide in subsection (3) that '[f]or greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired', their deliberations included the James Bay Treaty concluded but a few years earlier. The Cree participated in the relevant sessions, as did the federal and Quebec First Ministers. Many observers at the time considered the amendment to be superfluous. Hence the phrase '[f]or greater certainty'. The James Bay Treaty is clearly covered by s. 35(1) of the Constitution Act, 1982" - See paragraph 15.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - General - Effect or scope of - The Cree and Inuit communities and the governments of Quebec and Canada signed the James Bay and Northern Quebec Agreement (the "Treaty") in 1975 - The Treaty set out comprehensive procedures for environmental impact assessments - At issue was whether a vanadium mining project within the territory covered by the Treaty that "results in the harmful alteration, disruption or destruction of fish habitat" (Fisheries Act, s. 35(1)) was exempted by virtue of the Treaty from any independent scrutiny by the federal Fisheries Minister before issuing the federal fisheries permit - The Attorney General of Quebec contended that the Treaty should be interpreted to exclude what would elsewhere be a compulsory assessment of the project's impact under the Canadian Environmental Assessment Act (CEAA), and/or under federal fisheries policy - The Supreme Court of Canada held that if the vanadium mine project was approved pursuant to the Treaty, the proponent could not proceed with the work without authorization under s. 35(2) of the Fisheries Act, and that the issuance of any such authorization was to comply with the CEAA in accordance with its procedures, as well as the Crown's duty to consult with the First Nations in relation to matters that may adversely affect their Treaty rights - The court did not agree with the attribution by the Attorney General of Quebec of "trump" status to the reference in s. 22.6.7 of the Treaty to only "one (1) impact assessment and review procedure" - The court stated that "This provision merely regulates the internal treaty review processes. It does not refer to requirements external to the Treaty. Indeed, s. 22.7.1 specifically preserves the external requirement imposed on the vanadium mine promoter, triggered by final approval of the project under the Treaty, to obtain 'the necessary authorization or permits from responsible Government Departments and Services'" - See paragraph 8.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - General - Effect or scope of - The Cree and Inuit communities and the governments of Quebec and Canada signed the James Bay and Northern Quebec Agreement (the "Treaty") in 1975 - The Treaty set out comprehensive procedures for environmental impact assessments - The second paragraph of s. 22.6.7 of the Treaty stated "a project shall not be submitted to more than one (1) impact assessment and review procedure unless such project falls within the jurisdictions 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" - The Supreme Court of Canada stated that the second paragraph of s. 22.6.7. had to be read together with the first paragraph of that section and that "The two paragraphs read together are an elaboration of the internal treaty processes leading up to the decision of the Administrator. The rule against duplication simply provides that only one impact assessment is to be conducted within the pre-approval treaty process for the benefit of the Administrator ... However, the agreement of the parties to avoid duplication internal to the Treaty does not eliminate the post-approval permit requirement contemplated by the Treaty if imposed externally by a law of general application, such as the [Canadian Environmental Assessment Act] or the Fisheries Act, whose operation is preserved by the Treaty itself in s. 22.7.1" - See paragraphs 9 to 10.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - General - Effect or scope of - The Cree and Inuit communities and the governments of Quebec and Canada signed the James Bay and Northern Quebec Agreement (the "Treaty") in 1975 - The Treaty set out comprehensive procedures for environmental impact assessments - Section 22.7.5 of the Treaty stated that "Nothing in the present Section shall be construed as imposing an impact assessment review procedure by the Federal Government unless required by Federal law or regulation. However, this shall not operate to preclude Federal requirement for an additional Federal impact review process as a condition of Federal funding of any development project" - The Supreme Court of Canada stated that "The parties to the Treaty plainly agreed that the Treaty provisions dealing with the environment do not themselves require an independent impact assessment review by the federal government (i.e. the federal government itself as distinguished from the Treaty review bodies on which the federal government may or may not be represented). However this provision is expressly made subject to such an external requirement being imposed by 'Federal law or regulation' (i.e. not the Treaty). Far from excluding a separate federal obligation external to the Treaty, the Treaty thus contemplates the obligation of compliance with federal law whether in existence at the time of the negotiations (e.g. s. 31 of the Fisheries Act as it then was) or impact assessments subsequently imposed by federal law (e.g. the [Canadian Environmental Assessment Act])" - See paragraph 11.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - General - Effect or scope of - The Cree and Inuit communities and the governments of Quebec and Canada signed the James Bay and Northern Quebec Agreement (the "Treaty") in 1975 - The Treaty set out comprehensive procedures for environmental impact assessments - At issue was whether a vanadium mining project within the territory covered by the Treaty that "results in the harmful alteration, disruption or destruction of fish habitat" (Fisheries Act, s. 35(1)) was exempted by virtue of the Treaty from any independent scrutiny by the federal Fisheries Minister before issuing the federal fisheries permit - The Supreme Court of Canada stated that "The Attorney General of Quebec argues that the Treaty review process leading up to a decision by the Administrator is exhaustive of environmental assessment requirements (unless overturned by order of the Cabinet) but, in my view, the effect of the Treaty provisions is as follows. Under s. 22.2.3 of the Treaty, all federal laws of general application respecting environmental protections apply insofar as they are not inconsistent with the Treaty ... The [Canadian Environmental Assessment Act] CEAA is a federal law of general application respecting the environment. The question, then, is whether there is any inconsistency between the CEAA and the Treaty. I believe not. As stated, s. 22.7.1 of the Treaty provides that once the proposed development is approved by the Administrator following consultation and receipt of 'recommendations', the mine promoter is required notwithstanding such approval to obtain 'the necessary authorization or permits from responsible Government Departments and Services'. Nothing in the Treaty relieves the proponent from compliance with the ordinary procedures governing the issuance of the necessary authorization or permit ... Once the project is approved by the provincial Administrator (or the provincial Cabinet overruling the Administrator's disapproval), the proponent would have to make an application for the s. 35(2) fisheries permit to the federal Minister of Fisheries. As a matter of law, a CEAA assessment is obligatory prior to the grant of a s. 35(2) permit" - See paragraphs 37 to 38.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - General - Effect or scope of - The Cree and Inuit communities and the governments of Quebec and Canada signed the James Bay and Northern Quebec Agreement (the "Treaty") in 1975 - The Treaty set out comprehensive procedures for environmental impact assessments - The Supreme Court of Canada held that there was no conflict between the Treaty and the Canadian Environmental Assessment Act (CEAA) - The Treaty specifically provided for processes outside those established by the Treaty - The court stated that "s. 22.7.5 [of the Treaty] not only singles out the federal government for special attention in matters of impact assessment, but specifically preserves the application of its federal 'impact assessment review procedure' ... Section 22.7.5 cannot, in its terms, refer to the Environmental and Social Impact Review Panel established under s. 22.6.4 to review 'development projects in the Territory involving Federal jurisdiction' because the words 'Federal Government' are not apt to describe a Treaty body to which the federal government may nominate some of the members. Moreover, the reference in s. 22.7.5 expressly permits a federal impact assessment review procedure where required by federal law or regulation" - See paragraphs 41 to 45.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - General - Effect or scope of - The Cree and Inuit communities and the governments of Quebec and Canada signed the James Bay and Northern Quebec Agreement (the "Treaty") in 1975 - The Treaty set out comprehensive procedures for environmental impact assessments - At issue was whether a vanadium mining project within the territory covered by the Treaty that "results in the harmful alteration, disruption or destruction of fish habitat" (Fisheries Act, s. 35(1)) was exempted by virtue of the Treaty from any independent scrutiny by the federal Fisheries Minister before issuing the federal fisheries permit - The Supreme Court of Canada held that a federal fisheries permit was required once the Treaty approvals were given and that the federal Minister was not bound to issue a s. 35(2) fisheries permit following the approval of a mining project by the Administrator (or the Quebec Cabinet) - The court stated that "The Treaty does not purport to dictate to the federal Minister how to go about making his decision under s. 35(2) of the Fisheries Act. In particular, it does not fetter the exercise of his or her evaluation of the fisheries issues to the outcome of the provincial Treaty Administrator's (or Quebec Cabinet's) assessment of the mine and its impact on fish habitat. The autonomy of the federal Fisheries Minister is preserved even though s. 22 of the Treaty requires the provincial bodies to 'consider' fisheries concerns. The provincial bodies do not bear constitutional responsibility for the fisheries. The Treaty requirement for them to have regard to the native fisheries in reaching a conclusion on the merits of the vanadium mine for treaty purposes does not constitute the provincial Administrator (or, if called on, the Quebec Cabinet) delegates of the federal Minister or relieve the federal Minister of the responsibility to comply with federal rules and responsibilities in relation to fish habitat" - See paragraphs 49 to 52.

Indians, Inuit and Métis - Topic 4404

Treaties and proclamations - General - Effect or scope of - The Cree and Inuit communities and the governments of Quebec and Canada signed the James Bay and Northern Quebec Agreement (the "Treaty") in 1975 - The Treaty set out comprehensive procedures for environmental impact assessments - At issue was whether a vanadium mining project within the territory covered by the Treaty that "results in the harmful alteration, disruption or destruction of fish habitat" (Fisheries Act, s. 35(1)) was exempted by virtue of the Treaty from any independent scrutiny by the federal Fisheries Minister before issuing the federal fisheries permit - The Supreme Court of Canada stated that "the vanadium mine cannot lawfully proceed without a fisheries permit. The proponent is unable to obtain, and the federal Minister is unable to issue, a s. 35(2) fisheries permit without compliance with the [Canadian Environmental Assessment Act] CEAA. The contention of the Quebec Attorney General that the Treaty requires the federal Minister to issue the s. 35(2) fisheries permit as a result of the province-led review panel regardless of the federal Minister's independent assessment of potential damage to fish habitat should be rejected. It is only after final approval by the Treaty bodies that it can be said that 'the proposed development is approved in accordance with the provisions of this Section', which is the condition precedent to the proponent's obligations under s. 22.7.1 [of the Treaty] to 'obtai[n] where applicable the necessary authorization or permits from responsible Government Departments and Services'. There is thus no conflict. The need for a post-Treaty approval fisheries permit is made mandatory by the Treaty itself ('shall' obtain). In the case of fisheries, it is federal law, not the Treaty, that governs when such a permit may be granted as well as its terms and conditions" - See paragraphs 53 to 55.

Indians, Inuit and Métis - Topic 4405

Treaties and proclamations - General - Effect of federal legislation - [See all Indians, Inuit and Métis - Topic 4404 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - The issue before the court concerned the interpretation of provisions of the James Bay and Northern Quebec Agreement (the "James Bay Treaty"), which was signed by the Cree and Inuit communities and the governments of Quebec and Canada in 1975 - The Supreme Court of Canada stated, inter alia, that "In R. v. Badger, [1996] 1 S.C.R. 771, Cory J. pointed out that Aboriginal '[t]reaties are analogous to contracts, albeit of a very solemn and special, public nature' (para. 76). At issue in that case was an 1899 treaty. The contract analogy is even more apt in relation to a modern comprehensive treaty whose terms (unlike in 1899) are not constituted by an exchange of verbal promises reduced to writing in a language many of the Aboriginal signatories did not understand (Badger, at paras. 52-53). The text of modern comprehensive treaties is meticulously negotiated by well-resourced parties. As my colleagues note, 'all parties to the Agreement were represented by counsel, and the result of the negotiations was set out in detail in a 450-page legal document' (para. 118). The importance and complexity of the actual text is one of the features that distinguishes the historic treaties made with Aboriginal people from the modern comprehensive agreement or treaty, of which the James Bay Treaty was the pioneer. We should therefore pay close attention to its terms" - See paragraph 7.

Pollution Control - Topic 1803

Environmental assessments or impact studies - General - Agreements respecting - Interpretation - [See all Indians, Inuit and Métis - Topic 4404 ].

Pollution Control - Topic 1850

Environmental assessments or impact studies - Environmental assessment legislation - When study required - [See first, fourth and seventh Indians, Inuit and Métis - Topic 4404 ].

Cases Noticed:

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [paras. 7, 107].

Eastmain Band v. Robinson et al., [1993] 1 F.C. 501; 145 N.R. 270 (F.C.A.), refd to. [paras. 21, 72].

Eastmain Band v. Canada (Federal Administrator) - see Eastmain Band v. Robinson et al.

MiningWatch Canada v. Canada (Minister of Fisheries and Oceans) et al., [2010] 1 S.C.R. 6; 397 N.R. 232; 2010 SCC 2, refd to. [para. 40].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [paras. 45, 116].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 45].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [paras. 45, 98].

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. [para. 74].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 76].

Cree School Board v. Canada (Attorney General), [2002] 1 C.N.L.R. 112 (Que. C.A.), refd to. [para. 76].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 84].

Husky Oil Operations Ltd. v. Minister of National Revenue et al., [1995] 3 S.C.R. 453; 188 N.R. 1; 137 Sask.R. 81; 107 W.A.C. 81, refd to. [para. 84].

Reference Re Employment Insurance Act, [2005] 2 S.C.R. 669; 339 N.R. 279; 2005 SCC 56, refd to. [para. 84].

Fédération des producteurs volailles du Québec et al. v. Pelland, [2005] 1 S.C.R. 292; 332 N.R. 201; 2005 SCC 20, refd to. [para. 86].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 97].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, refd to. [para. 97].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2009] 1 S.C.R. 222; 384 N.R. 203; 2009 SCC 9, refd to. [para. 98].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.), [2005] 2 S.C.R. 220; 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 235 N.S.R.(2d) 151; 747 A.P.R. 151; 2005 SCC 43, refd to. [para. 98].

Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, refd to. [para. 99].

R. v. Sundown (J.), [1999] 1 S.C.R. 393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [para. 107].

R. v. Howard, [1994] 2 S.C.R. 299; 166 N.R. 282; 71 O.A.C. 278, refd to. [para. 113].

R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; 84 N.R. 1, refd to. [para. 121].

R. v. Hydro-Québec, [1997] 3 S.C.R. 213; 217 N.R. 241, refd to. [para. 121].

Authors and Works Noticed:

Bankes, Nigel, Co-operative Federalism: Third Parties and Intergovernmental Agreements and Arrangements in Canada and Australia (1991), 29 Alta. L. Rev. 792, p. 828 [para. 86].

Côté, Pierre-André, Beaulac, Stéphane, and Devinat, Mathieu, Interprétation des lois (4th Ed. 2009), pp. 72 to 75 [para. 101].

Gagnon, Alain-G., and Rocher, Guy, Reflections on the James Bay and Northern Québec Agreement (2002), p. 17 [para. 61].

Gaudreault-Desbiens, Jean-François, and Gélinas, Fabien, The States and Moods of Federalism; Governance, Identity and Methodology (2005), pp. 441, 442, 443, 446, 448 [para. 85].

Gourdeau, Eric, Genesis of the James Bay and Northern Québec Agreement, in Gagnon, Alain-G., and Rocher, Guy, Reflections on the James Bay and Northern Québec Agreement (2002), p. 17 [para. 61].

Grammond, Sébastien, Aménager la Coexistence: Les peuples autochtones et le droit canadien (2003), p. 255 [para. 98].

Grammond, Sébastien, Les effets juridiques de la Convention de la Baie James au regard du droit interne canadien et québécois (1991-1992), 37 McGill L.J. 761, p. 779 [para. 97].

Kennett, Steven A., Hard Law, Soft Law and Diplomacy: The Emerging Paradigm for Intergovernmental Cooperation in Environmental Assessment (1993), 31 Alta. L. Rev. 644, generally [para. 85]; pp. 655, 658 [para. 86].

Poirier, Johanne, Les ententes intergouvernementales et la gouvernance fédérale: aux confins du droit et du non-droit, in Gaudreault-Desbiens, Jean-François, and Gélinas, Fabien, The States and Moods of Federalism; Governance, Identity and Methodology (2005), pp. 441, 442, 443, 446, 448 [para. 85].

Quebec, Secrétariat aux affaires autochtones, The James Bay and Northern Québec Agreement and Complementary Agreements (1998), generally [para. 83].

Rotman, Leonard I., Taking Aim at the Canons of Treaty Interpretation in Canadian Aboriginal Rights Jurisprudence (1997), 46 U.N.B.L.J. 11, pp. 20 [para. 108]; 23 [para. 115].

Sanders, Douglas, We Intend to Live Here Forever: A Primer on the Nisga'a Treaty (1999-2000), 33 U.B.C. L. Rev. 103, p. 108 [para. 99].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 270, 271 [para. 101]; 513 [para. 107]; 525 [paras. 115, 116].

Counsel:

Francis Demers, Samuel Chayer and Hugues Melançon, for the appellant;

Robert Mainville, Henry S. Brown, Q.C., and Jean-Sébastien Clément, for the respondents, Grand Chief Dr. Ted Moses, the Grand Council of the Crees (Eeyou Istchee) and the Cree Regional Authority;

René LeBlanc, Bernard Letarte and Virginie Cantave, for the respondents, the Attorney General of Canada, the Honourable David Anderson, in his capacity as Minister of Environment and the Canadian Environmental Assessment Agency;

Yvan Biron, for the respondent, Lac Doré Mining Inc.;

Written submissions only by P. Mitch McAdam and Chris Hambleton, for the intervenor, the Attorney General for Saskatchewan;

Bryan P. Schwartz and Jack R. London, Q.C., for the intervenor, the Assembly of First Nations.

Solicitors of Record:

Bernard, Roy (Justice-Quebec), Montreal, Quebec, for the appellant;

Gowling Lafleur Henderson, Montreal, Quebec, for the respondents, Grand Chief Dr. Ted Moses, the Grand Council of the Crees (Eeyou Istchee) and the Cree Regional Authority;

Department of Justice, Ottawa, Ontario, for the respondents, the Attorney General of Canada, the Honourable David Anderson, in his capacity as Minister of Environment and the Canadian Environmental Assessment Agency;

Lavery, de Billy, Montreal, Quebec, for the respondent, Lac Doré Mining Inc.;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervenor, the Attorney General for Saskatchewan;

Pitblado, Winnipeg, Manitoba, for the intervenor, the Assembly of First Nations.

This appeal was heard on June 9, 2009, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on May 14, 2010, including the following opinions:

Binnie, J. (McLachlin, C.J.C., Fish, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 56;

LeBel and Deschamps, JJ., dissenting (Abella and Charron, JJ., concurring) - see paragraphs 57 to 143.

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  • Fondation David Suzuki c. Canada (Pêches et Océans),
    • Canada
    • Court of Appeal (Canada)
    • 9 Febrero 2012
    ...Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418, 154 D.L.R. (4th) 193; Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557, 318 D.L.R. (4th) 288, 51 C.E.L.R. (3d) 1; Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans),......
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5 firm's commentaries
  • Court Of Appeal Summaries (November 1-5, 2021)
    • Canada
    • Mondaq Canada
    • 10 Noviembre 2021
    ...Nation v. British Columbia (Minister of Forests), 2004 SCC 73, R. v. Sundown, [1999] 1 S.C.R. 393, Quebec (Attorney General) v. Moses, 2010 SCC 17, Fort McKay First Nation v. Prosper Petroleum Ltd., 2019 ABCA 14, Fontaine v. Canada (Attorney General), 2017 SCC 47, MacDonald v. Chicago Title......
  • Court Of Appeal Summaries (November 1-5, 2021)
    • Canada
    • Mondaq Canada
    • 10 Noviembre 2021
    ...Nation v. British Columbia (Minister of Forests), 2004 SCC 73, R. v. Sundown, [1999] 1 S.C.R. 393, Quebec (Attorney General) v. Moses, 2010 SCC 17, Fort McKay First Nation v. Prosper Petroleum Ltd., 2019 ABCA 14, Fontaine v. Canada (Attorney General), 2017 SCC 47, MacDonald v. Chicago Title......
  • Court Of Appeal Finds Federal Impact Assessment Act Unconstitutional
    • Canada
    • Mondaq Canada
    • 12 Mayo 2022
    ...(3) to fish and fish habitat; (4) to migratory birds; and (5) to federal lands. 4 Para 47, citing Quebec (Attorney General) v Moses, 2010 SCC 17. 5 Para 6 See summary of reasons for overreach at para 373 7 For example, "effects within federal jurisdiction", which includes extra-provincial e......
  • Litigation Update- May 2010
    • Canada
    • Mondaq Canada
    • 1 Junio 2010
    ...be disclosed. (g) Constitutional Law – Interpretation of Aboriginal Treaties – Division of Powers: Quebec (Attorney General) v. Moses, 2010 SCC 17, Released 14 May 2010 In 1975, the governments of Quebec and Canada and Cree and Inuit communities in northern Quebec entered into the James Bay......
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11 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books Constitutional Law. Fifth Edition Conclusion
    • 3 Agosto 2017
    ...38 ..........................................................................123, 124, 127, 128 Quebec (Attorney General) v. Moses, [2010] 1 S.C.R. 557, 2010 SCC 17 ......................................................................................... 502, 529 Quebec (Attorney General) v......
  • Table of Cases
    • Canada
    • Irwin Books Quasi-constitutional Laws of Canada
    • 25 Junio 2018
    ...[2012] SCCA No 102 ........................................................................136, 139 Quebec (Attorney General) v Moses, 2010 SCC 17 ..............................97–98, 272 Quebec (Attorney General) v Quebec (Human Rights Tribunal), 2004 SCC 40 .....................................
  • Table of cases
    • Canada
    • Irwin Books Environmental Law. Fifth Edition
    • 22 Junio 2019
    ...Quebec (AG) v Girard, [2004] JQ no 13624 (CA) .............................................. 115 Quebec (AG) v Moses, 2010 SCC 17..................................................................... 35 R v 1137749 Ontario Ltd (cob Pro-Teck Electric), 2018 ONCJ 502 ....................201 R ......
  • The Theory of Quasi-constitutionality
    • Canada
    • Irwin Books Quasi-constitutional Laws of Canada
    • 25 Junio 2018
    ...constitutional and non-constitutional statutes that does not undermine legislative supremacy. 197 192 Quebec (Attorney General) v Moses , 2010 SCC 17 at para 92. 193 Ibid. 194 Association des procureurs aux poursuites criminelles et pénales et Directeur des poursuites criminelles et pénales......
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