Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Constitutional law - Division of powers - Aboriginal law - Legislation - Interpretation - Whether Court of Appeal justified in holding that s. 35(2) of Fisheries Act, R.S.C., c. F-14, can be basis for environmental assessment on territory covered by James Bay and Northern Quebec Agreement - Whether federal fisheries power permits comprehensive environmental assessment of mine project under Canadian Environmental Assessment Act, S.C. 1992, c. 37 - Whether environmental regime under CEAA incompatible with regime provided for in Agreement.

In 1999, the Quebec Minister of the Environment was notified of a major vanadium mine project on the territory covered by the Agreement. The Agreement, which is supra-legislative in scope, was signed by representatives of Aboriginal peoples and the federal and Quebec governments in 1975 to permit hydroelectric development in the James Bay area. The Agreement governs development projects on the territory on which it applies. Section 22 of the Agreement establishes an environmental and social protection regime. Depending on whether it falls within provincial or federal jurisdiction, a development project may be subject to a consultative impact assessment and review procedure conducted by a provincial committee, by a federal panel or, exceptionally, by both bodies acting in concert. It is common ground that the proposed mine must be assessed before it is approved. The Attorney General of Canada, having been warned that the project could have an impact on fish habitat, wanted to subject the project to a federal assessment process under the CEAA, given that, in principle, s. 35 of the Fisheries Act prohibits works and undertakings that result in the harmful alteration, disruption or destruction of fish habitat.

The dispute arises from opposition to the position of the Attorney General of Canada. Aboriginal representatives maintained that the project should be subject to the federal and provincial processes provided for in the Agreement. The Attorney General of Quebec submitted that approval of the project could be granted only under the provincial process provided for in the Agreement. The Superior Court agreed with Quebec’s position. It held that the CEAA’s assessment process was incompatible with the one provided for in the Agreement and declared that the CEAA was inapplicable throughout the territory covered by the Agreement. The Court of Appeal confirmed that where the trigger for the assessment results from the Agreement, only one assessment process applies, and which process is appropriate depends on which legislative jurisdiction is applicable to the project. In principle, the Agreement does not preclude the existence of an external trigger, such as the Fisheries Act. However, the process resulting from the application of the CEAA, because it is incompatible with the process under the Agreement, must give way to the federal process provided for in the Agreement.