(Eeyou Istchee)/Government of the Cree Nation

BRIEF FROM THE GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE) / GOVERNMENT OF THE CREE NATION TO THE STANDING COMMITTEE ON TRANSPORT, INFRASTRUCTURE AND COMMUNITIES ON THE CEAA 2012 AND THE NAVIGATION PROTECTION ACT 9 NOVEMBER 2016 TABLE OF CONTENTS Contents I. INTRODUCTION ................................................................................................................................ 1 II. BACKGROUND .................................................................................................................................. 2 A.THE CREES AND EEYOU ISTCHEE ..................................................................................................... 2 B.THE JAMES BAY AND NORTHERN QUEBEC AGREEMENT (JBNQA) ..................................................... 2 III. CHAPTER 22 OF THE JBNQA ....................................................................................................... 3 IV. CHAPTER 24 OF THE JBNQA ....................................................................................................... 4 V. BILL C-38 AND BILL C-45 ................................................................................................................ 5 VI. THE RELATIONSHIP BETWEEN CHAPTER 22 AND CHAPTER 24 AND FEDERAL LEGISLATIVE PROVISIONS ON THE ENVIRONMENT ....................................................................... 5 VII. THE ADVERSE EFFECTS OF BILLS C-38 AND C-45 .................................................................... 6 A.THE ADVERSE EFFECTS ON THE CREES, THEIR HUNTING TERRITORIES AND EEYOU ISTCHEE ......... 6 B.THE ADVERSE EFFECTS OF THE CEAA 2012 ON NAVIGABLE WATERS .................................................. 6 C.THE ADVERSE EFFECTS OF CHANGES TO THE NWPA ............................................................................ 7 VIII. PROCESS LEADING TO BILLS C-38 AND C-45 ............................................................................ 8 IX. SOLUTIONS .......................................................................................................................................... 8 A.ADOPTION OF SUITABLE LAWS .............................................................................................................. 8 B.REINTEGRATE THE TRIGGER LINKED TO NAVIGABLE WATERS WITHIN THE REVISED ENVIRONMENTAL ASSESSMENT PROCESS ............................................................................................................................... 9 X. CONCLUSION ...................................................................................................................................... 10 APPENDIX A MAP .................................................................................................................................. 11 APPENDIX B ............................................................................................................................................. 12 PRESENTATION TO THE EXPERT PANEL ON THE ENVIRONMENTAL ASSESSMENT PROCESS ................................................................................................................................................... 12 I. INTRODUCTION 1. The Grand Council of the Crees (Eeyou Istchee) (“GCC(EI)”) is the political entity that represents the some 18,000 Crees of Eeyou Istchee, the traditional lands of the James Bay Cree. The Government of the Cree Nation (“GCN”) is the “Cree Native party” for the purposes of the James Bay and Northern Quebec Agreement. 2. Over the past almost forty years, the Crees have signed numerous agreements with the governments of Quebec and Canada, creating a unique legal framework in Eeyou Istchee. The agreements include, among others, in 1975, the James Bay and Northern Quebec Agreement (“JBNQA”), signed with Canada and Quebec; 1 in 2002, the Agreement Concerning a New Relationship between Le Gouvernement du Québec and the Crees of Quebec, often called the “Paix des braves”; in 2008, the Agreement Concerning a New Relationship between the Government of Canada and the Crees of Eeyou Istchee (“2008 Canada-Cree Relationship Agreement”); and in 2012, the Agreement on governance in the Eeyou Istchee James Bay territory between the Cree of Eeyou Istchee and the Government of Quebec.2 3. The recent treaties, such as the JBNQA, try to contribute to the goal of reconciliation, the noble goal of section 35 of the Constitution Act, 1982, not only by responding to the land claim grievances, but by creating the legal foundation conducive to harmonious long- term relationship between the Aboriginal and non-Aboriginal communities.3 4. As recognized in the case law, the JBNQA establishes a number of co-management regimes, including an environmental and social protection regime and a hunting, fishing and trapping regime in the Territory.4 By means of the aforementioned agreements, the Crees continue to assume more and more responsibilities for co-management, including responsibilities for governance of the territory and co-management of natural resources. These co-management mechanisms help ensure that the development of Eeyou Istchee is sustainable and respects the rights of the Crees. 1 It has since been amended by 24 complementary agreements. 2 Approved by Bill 42 of 2013, An Act establishing the Eeyou Istchee James Bay Regional Government and introducing certain legislative amendments concerning the Cree Nation Government, (S.Q. 2013, c. 19). 3 Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103, par. 10. 4 Makivik et al. c. Québec, 2014 QCCA, 1455, see in particular par. 67 et 68. 1 II. BACKGROUND A. THE CREES AND EEYOU ISTCHEE 5. There are over 18,000 Crees of Eeyou Istchee, some 16,000 of who live in the various Cree communities. For thousands of years, the Crees have lived on their traditional territory, the territory of Eeyou Istchee, which the Crees use intensely and manage for their traditional activities of hunting, fishing and trapping, which continue to form the basis of their culture and their economy. In fact, the territory is the basis of the traditional Cree economy and autonomy. 6. The attached map shows the traditional Cree family territories (Appendix A). The Crees use all the resources of Eeyou Istchee. They use the territory’s navigable waters for travel and for economic pursuits. Eeyou Istchee contains a number of navigable waters, including waters that are navigable by canoe or by other boats of various sizes. Since time immemorial, the Crees have used the rivers and other water bodies in Eeyou Istchee for their traditional activities, including transportation. The operating rights contained in the Cree treaty include travel rights.5 B. THE JAMES BAY AND NORTHERN QUEBEC AGREEMENT (JBNQA) 7. In the early 1970s, the Crees and Inuit opposed the construction of a hydroelectric development project, hereinafter known as the James Bay Hydroelectric project, or more precisely, the La Grande Hydroelectric Complex (1975), and began legal action to stop it. On November 11, 1975, out-of-court negotiations led to the conclusion of the JBNQA between the Crees, Inuit, Canada, Quebec and certain other parties. 8. The JBNQA is the first modern treaty concluded between the Aboriginal peoples and the governments of Canada. It was approved, implement and declared valid through federal6 and provincial 7 legislative provisions. Under these acts, the Crees enjoy the rights, privileges and advantages set out by the JBNQA as treaty rights and statutory rights.8 The JBNQA also takes precedence in the event of an incompatibility or conflict.9 9. The JBNQA is an agreement on land claims and a treaty under section 35 of the Constitution Act, 198210 and the rights of the Crees set out in the JBNQA are existing treaty rights, recognized, reaffirmed and protected by sections 35 and 52 of the Constitution Act, 1982. 10. The protection of the environment and the Crees’ traditional hunting, fishing and trapping activities (sometimes called “harvest activities”) and Cree participation in economic 5 JBNQA, para. 24.3.13. 6 James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-77, c. 32. 7 An Act approving the Agreement concerning James Bay and Northern Québec, S.Q. 1976, c. 46, now CQLR, c. C-67. 8 James Bay and Northern Quebec Native Claims Settlement Act, ss. 3(2); An Act approving the Agreement concerning James Bay and Northern Québec, ss. 2.2. 9 James Bay and Northern Quebec Native Claims Settlement Act, s. 8; An Act approving the Agreement concerning James Bay and Northern Québec, s. 7. 10 Quebec (Attorney General) v. Moses, [2010] 1 S.C.R. 557, par. 15, 106. See also Makivik et al. c, Québec, 2014 C.A.Q. 1455. 2 development were fundamental concerns for the Crees during the negotiations leading to the JBNQA. These questions are dealt with in chapters 22, 24 and 28 of the JBNQA. III. CHAPTER 22 OF THE JBNQA 11. Chapter 22 of the JBNQA establishes an environmental and social protection regime applicable in the Territory of the JBNQA, which includes a complete process to assess and examine the environmental impact of development processes, the first of its kind in Canada. 12. Paragraph 22.2.2 sets out the main elements of this regime: 22.2.2 The said regime provisions for: a) A procedure whereby environmental and social laws and regulations and land use regulations may from time to time be adopted if necessary to minimize the negative impact of development in or affecting the Territory upon the Native people and the wildlife resources of the Territory; b) An environmental and social impact assessment

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