T-451-91
Cree Regional Authority and Bill Namagoose
(Applicants)
v.
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
(c) Transmission lines of 75 kilovolts and above
(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.
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.
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-Ã -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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