Attorney General of Quebec v. Moses - Supreme Court of Canada decision on environmental assessments in northern Quebec
By Charles Kazaz
Fasken Martineau DuMoulin LLP
On May 14, 2010 the Supreme Court of Canada handed down its long awaited decision in Attorney General of Quebec v. Moses.
The decision deals with issues related to the applicability of Federal environmental impact assessment (“EIA”) legislation in the territory covered by the James Bay and Northern Quebec Agreement (“JBNQA”).
In a 5-4 decision the Supreme Court of Canada concluded that the proponent of the Project could not proceed without a Federal fisheries permit and that the Quebec Court of Appeal decision should be varied to require compliance with the Federal EIA process rather than the JBNQA EIA process. The issuance of the Federal fisheries permit is also subject to the Crown’s duty to consult with the Cree to the extent that it may adversely affect their rights under the agreement.
Background
The JBNQA is a modern treaty between the Government of Canada, the Government of Quebec and the Cree and Inuit of Northern Quebec. It establishes a specific environmental and social protection regime that applies to the territory covered by the agreement. The EIA process will differ depending on whether the Project is under federal or provincial jurisdiction.
Under the JBNQA, if a project is of provincial jurisdiction the EIA process is conducted through a committee composed of members of the Quebec government and the Cree and decisions are made by a Provincial Administrator. If a project is of federal jurisdiction the EIA process is conducted through a committee composed of members of the Federal government and the Cree and decisions are made by a Federal Administrator. In exceptional circumstances a review can be conducted by a joint federal-provincial panel.
The case involved a proposed Vanadium Mine (the “Project”) in the vicinity of Chibougamau, Quebec. Given the Project’s potential impact on fish habitat –
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