(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

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.

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.

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 and review procedure established to minimize the environmental and social impact of development when negative on the Native people and the wildlife resources of the Territory; 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 Agreement; 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; f) The right to develop in the Territory. 13. Paragraph 22.2.3 provides for the application in the Territory of federal laws of general application concerning environmental and social protection insofar as they are compatible with the JBNQA and Chapter 22. This paragraph also provides for the governments to adopt “suitable legislation and regulations” in order to give effect to Chapter 22: 22.2.3 All applicable federal and provincial laws of general application respecting environmental and social protection shall apply in the Territory to the extent that they are not inconsistent with the provisions of the Agreement and in particular of this Section. If necessary to give effect to the present Section of the Agreement, Quebec and Canada shall take the required measures to adopt suitable legislation and regulations for such purpose. 14. Paragraph 22.2.4 provides that the governments must give due attention to certain guiding principles:

22.2.4 The responsible governments and the agencies created in virtue of this Section shall within the limits of their respective jurisdictions or functions as the case may be give due consideration to the following guiding principles: a) The protection of the hunting, fishing and trapping rights of Native people in the Territory, and their other rights in Category I lands, with respect to developmental activity affecting the Territory; b) The environmental and social protection regime with respect to minimizing the impacts on Native people by developmental activity affecting the Territory; c) The protection of Native people, societies, communities, economies, with respect to developmental activity affecting the Territory; d) The protection of wildlife resources, physical and biotic environment, and ecological systems in the Territory with respect to developmental activity affecting the Territory; e) The rights and guarantees of the Native people within Category II established by and in accordance with section 24 until such land is developed; f) The involvement of the Cree people in the application of this regime; g) The rights and interests of non-Native people, whatever they may be; h) The right to develop by persons acting lawfully in the Territory; i) The minimizing of negative environmental and social impacts of development on Native people and on Native communities by reasonable means with special reference to those measures proposed or recommended by the impact assessment and review procedure.

IV. CHAPTER 24 OF THE JBNQA 15. Chapter 24 of the JBNQA establishes a “hunting, fishing and trapping regime” for the Crees, Inuit and Naskapis. This regime was established in order to protect the Aboriginal peoples’ harvest rights, which includes the right to travel to exercise these rights, to ensure the sustainable management of the wildlife resources in the Territory of the JBNQA and to provide for the participation of the Cree, Inuit and Naskapi beneficiaries in that management. 16. The regime established by Chapter 24 of the JBNQA and the hunting, fishing and trapping rights provided therein are intimately linked to the environmental and social protection regime established under Chapter 22 of the JBNQA: 24.11.1 The rights and guarantees of the Native people established 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. 17. The JBNQA also specifies that the right to harvest includes the right to travel:

24.3.13 The right to harvest shall include the right to travel and establish such camps as are necessary to exercise that right, in accordance with the terms and conditions of the Agreement. 18. In order to give its true meaning to the Crees’ treaty rights to travel, the GCC(EI)/GCN endeavours to ensure that any projects within Eeyou Istchee are designed and carried out in a manner that ensures that navigable waters remain navigable, by such means as designing and implementing remedial works or mitigation measures. For example, as part of the diversion of the Rupert River, major efforts were invested so that the promoter would restore the river’s natural potential, that the river remained navigable, that hunting camps were replaced and that the Crees’ traditional fishing sites were enhanced.

V. BILL C-38 AND BILL C-45 19. Bills C-38 and C-45 11 are what is commonly known as “omnibus” bills, destined to implement federal budget measures. They are also supposed to amend or replace certain federal environmental legislation, including the Canadian Environmental Assessment Act of 199212 (the “CEAA 1992”) and the Navigable Waters Protection Act13 (“NWPA”). 20. The GCC(EI)/GCN were prepared to challenge bills C-38 and C-45 before the courts. They decided instead to initiate the dispute resolution process provided for in the 2008 Canada-Cree Relationship Agreement (the “dispute resolution process”). 21. The reasons that the Canadian Environmental Assessment Act, 2012 (“CEAA 2012”) and the new Navigation Protection Act14 (“NPA”) are problematic within the territory of the JBNQA are set out in a document dated September 2013, which is confidential under the dispute resolution process. Ironically, the federal reviews that led to the CEAA 2012 helped block the discussions that took place between the Crees and Canada following the ruling in Moses15 on the CEAA 1992 and the JBNQA. The GCC(EI)/GCN expects that the same mistake will not be made again and that this time the federal reviews under way will encourage and accelerate resolution of the dispute.

VI. THE RELATIONSHIP BETWEEN CHAPTER 22 AND CHAPTER 24 AND FEDERAL LEGISLATIVE PROVISIONS ON THE ENVIRONMENT 22. Paragraphs 22.2.2 to 22.2.4 of the JBNQA are not simply statements of principle; they give rise to specific rights and obligations: (a) Chapter 22 creates a complete environmental and social protection regime that includes, but is not limited to, the environmental and social assessment process set out therein, in an effort to reduce the negative impact produced by

11 Bill C-38, the Jobs, Growth and Long-term Prosperity Act, which became the Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19. Bill C-45, the Jobs and Economic Growth Act, which became the Jobs and Economic Growth Act, L.C. 2012, c. 31. 12 SL.C. 1992, c. 37. 13 R.S.C. 1985, c. N-22. 14 Ibid. 15 Quebec (Attorney General) v. Moses, [2010] 1 S.C. R. 557.

environmental and social development on the Crees’ harvest rights, including their right to travel and their hunting, fishing and trapping rights; (b) Federal laws of general application concerning environmental and social protection apply in the Territory to the extent they are not incompatible with the JBNQA, Chapter 22 and Chapter 24; (c) Canada is obliged to adopt “suitable legislation” to put Chapter 22 into effect and to reduce the negative impact of development in the Territory, or affecting the Territory, on the Crees and on wildlife resources in the Territory; (d) Any federal law, such as the CEAA 2012 or NPA, that do not give effect to Chapter 22 and do not reduce the negative impact of development in the Territory, or affecting the Territory, on the Crees and on wildlife resources in the Territory do not constitute “suitable legislation” within the meaning of Chapter 22; and (e) Any such “unsuitable” federal legislation contravenes the JBNQA and does not apply in the Territory. 23. Any federal environmental legislation of general application that is to apply in the Territory, including federal legislation on assessment and the NPA, must be compatible with Chapter 22, give effect to Chapter 22 and reduce the adverse effects of development in the Territory, or affecting the Territory, on the Crees and wildlife resources in the Territory. 24. Both the withdrawal, in the CEAA 2012, of triggers with regard to navigable waters and the reduction in protection of navigable waters arising from the amendments to the NWPA are contrary to the environmental and social protection regime applicable in the Territory under Chapter 22, and to the hunting, fishing and trapping regime in Chapter 24 of the JBNQA.

VII. THE ADVERSE EFFECTS OF BILLS C-38 AND C-45

A. THE ADVERSE EFFECTS ON THE CREES, THEIR HUNTING TERRITORIES AND EEYOU ISTCHEE 25. The Crees’ ability to exercise their hunting, fishing and trapping rights, including the right to travel to exercise these rights, is protected by chapters 22 and 24 of the JBNQA and depends greatly on the protection of navigable waters. 26. The failure to adequately protect the navigable waters constitutes and is equivalent to expropriation or appropriation of the Crees’ rights and threatens the Crees’ right to their way of life, which entails serious social and economic repercussions on the Crees, on their hunting territories and on the rivers and water bodies in Eeyou Istchee. This also leads to the construction and inappropriate use of projects, bridges, culverts and other works close to rivers and watercourses or in them.

B. THE ADVERSE EFFECTS OF THE CEAA 2012 ON NAVIGABLE WATERS 27. The CEAA 1992 clearly established a link with the NWPA in order to provide environmental protection, by requiring that all proposed projects requiring a permit under

the NWPA automatically trigger the federal environmental assessment. This meant that, combined, the CEAA 1992 and the NWPA required that every project that had an impact on waterways in Eeyou Istchee were subject to an environmental assessment. 28. The changes presented by the replacement of the CEAA 1992 with the CEAA 2012 are of particular concern to the Crees and include, but are not limited to, the following: (a) Projects. As a rule, the goal of environmental assessments under the CEAA 1992 was to predict the environmental impact that proposed projects would have before they were carried out, in order to minimize, avoid or reduce negative impact. Overall, the process was “triggered” as soon as a federal authority proposed, funded or enabled a project to be carried out on Federal lands, or required certain licences, permits or approvals before the project could be carried out. The authorizations under section 35(2) of the Fisheries Act and the authorization under section 5 of the NWPA are examples of such triggers. (b) “Designated projects”. As a comparison, the CEAA 2012 envisages environmental assessments for “designated projects,” defined as projects carried out in Canada or on Federal lands that are designated by regulations or in an order made by the Minister and that are linked to the same federal authority as specified in those regulations or that order. 29. In other words, the authorization for works built or placed in, on, over, under or across any navigable water under section 5(1) of the NWPA automatically triggered a federal environmental assessment under the CEAA 1992, while such an authorization no longer triggered the environmental assessment under the CEAA 2012. The withdrawal, in the CEAA 2012, of triggers with respect to navigable waters is contrary to the environmental and social protection regime applicable in the Territory under Chapter 22 of the JBNQA.

C. THE ADVERSE EFFECTS OF CHANGES TO THE NWPA 30. Bill C-45 amends the Navigable Waters Protection Act, renaming it the Navigation Protection Act, a clear indication of the change in its objective, from protecting the environment, the navigation of small vessels and local economies to those of large trade and navigation. The NPA will no longer govern works on all navigable waters, but rather those on the navigable waters listed in the Schedule. 31. The said schedule to the NPA lists only 100 lakes (including the oceans) and 64 rivers, which means that the vast majority of lakes and rivers are excluded from its application. None of the lakes and rivers of Eeyou Istchee are listed in the Schedule to the NPA. These amendments thus significantly weaken the protection of the waterbodies of Eeyou Istchee and are contrary to the environmental and social protection regime applicable in the Territory under Chapter 22.

VIII. PROCESS LEADING TO BILLS C-38 AND C-45 32. The process that led to bills C-38 and C-45 and, eventually to the promulgation of CEAA 2012 and the amendment of the NWPA, took place without the Crees consenting to it and without their even being consulted, and without the James Bay Advisory Committee on the Environment (“JBACE”) having been consulted, despite the clear effects, for the Crees, of these measures on the environmental and social protection regime under Chapter 22 and the hunting, fishing and trapping regime under Chapter 24 of the JBNQA. 33. The consultation of the JBACE16 is a positive obligation arising from a treaty that is incumbent on governments when formulating laws such as the CEAA 2012 and the NPA.

IX. SOLUTIONS 34. The solutions are simple: (a) Adopt suitable laws in order to protect the navigable waters of Eeyou Istchee through an effective and modern process, based on the “canoe test”, with the participation of the Crees; and (b) reintegrate the obligation to conduct an assessment when a permit related to navigable waters is required in the Territory of the JBNQA, in keeping with Chapter 22 of the modernized JBNQA. 35. Subsections 91(10) and 91(24) of the Constitution Act, 1867 give Canada the legislative authority to act thusly.

A. ADOPTION OF SUITABLE LAWS 36. While jurisprudence does not have a decisive effect, Transport Canada did publically state that it was using the “aqueous highway test” rather than the “canoe test” to define navigable waters.17 37. In Eeyou Istchee, in order to be compatible with the Crees’ use of the navigable waters in the context of a Cree economy based on hunting, fishing and trapping, the navigable waters that need protection will have to correspond to certain criteria arising from the relevant jurisprudence: (a) any river, watercourse or waterbody that is navigable in actuality, that is, that in its natural state allows the passage of boats of whatever size, from as big as steamboats to as small as canoes, skiffs and rafts drawing less than a foot of water; (b) such rivers, watercourse and waterbodies may be navigable for part of their course and not for others; there may therefore be different judgements about their navigability, in different regions and at different times;

16 JBNQA, par. 22.3.24 to 22.3.28. 17 See for example: https://www.canada.ca/fr/services/environnement/conservation/evaluation/examens- environnementaux/protection-navigation/fiche-information-determination-navigabilite.html (page consulted 1 November 2016, link inactive 25 November 2016).

(c) to be navigable, it is not necessary that a river, watercourse or waterbody in fact be used for navigation, merely that it would be reasonable to do so; (d) all navigable waters remain navigable even when conditions changes, be it as the result of forces of nature or the construction of works with an impact on navigation; (e) any navigable water that becomes navigable as the result of forces of nature or following construction is considered a navigable water from that point on; (f) navigation need not be continuous and may be seasonal; and (g) impediments to navigation, such as rapids, on a navigable watercourse, river or waterbody that can be bypassed do not render these waters unnavigable. 38. In other words, within Eeyou Istchee, the test should be the “canoe test” rather than the “aqueous highway test” in order to ensure compatibility with the Crees’ treaty harvest rights, including the right to travel in order to exercise these rights. 39. Consequently, the use of a schedule listing the oceans, lakes, rivers and watercourses that are considered navigable waters for the purposes of the NPA is not desirable. 40. It should be necessary to obtain a permit for any works done in, on, over, under or across the navigable waters of Eeyou Istchee or that will have an impact on the navigable waters, before any construction or operation in order to ensure that the waters remain navigable, including through the design and implementation of remedial works or mitigation measures. The GCC(EI)/GCN would participate in a modern and effective decision-making process for issuing permits in Eeyou Istchee. Measures would be taken to ensure Cree participation in development. 41. Non-authorized constructions could be removed on order, or orders could be issued to ensure the navigability of waters made unnavigable by works, including stop work orders. Once again, the GCC(EI)/GCN would participate in a modern and effective decision-making process for issuing such orders in Eeyou Istchee. 42. As well, the GCC(EI)/GCN should participate in the preparation of amendments to the legislation or the preparation of new legislation.

B. REINTEGRATE THE TRIGGER LINKED TO NAVIGABLE WATERS WITHIN THE REVISED ENVIRONMENTAL ASSESSMENT PROCESS 43. The triggers linked to navigable waters should be reintegrated into the federal environmental assessment process structured in such a way as to ensure harmonization with Chapter 22 of the JBNQA and protection of the Crees’ hunting, fishing and trapping rights under Chapter 24. Essentially, an assessment would be conducted every time a permit linked to navigable waters is required under the suitable laws described above. 44. In Moses, the Supreme Court accepted the Crees’ arguments about the need to ensure Cree participation in the assessment of projects, in a manner compatible with the process of the JBNQA, even when the assessment is external to the treaty. Justice Binnie got to the heart of the matter when he wrote

[48] Common sense as well as legal requirements suggest that the CEAA assessment will be structured to accommodate the special context of a project proposal in the James Bay Treaty territory, including the participation of the Cree. 45. On 27 October 2016, the GCC(EI)/GCN made a presentation to the Expert Panel responsible for the Review of Environmental Assessment Processes on how to modernize Chapter 22 of the JBNQA. A copy of the GCC(EI)/GCN presentation of 27 October 2016 is attached as Appendix B.

X. CONCLUSION 46. In summary, the GCC(EI)/GCN advocates (a) the adoption of suitable laws regarding navigable waters, which must protect all navigable waters that pass the “canoe test” and provide for Cree participation in the effective and modern decision-making process under these laws, compatible with sustainable development; and (b) amendments to Chapter 22 of the JBNQA to ensure that all projects with an impact on navigable waters are adequately assessed through the structures of the JBNQA in the context of a modernized regime. 47. These solutions are compatible with Cree society, sustainable development of the Territory, Cree participation in development and the Crees taking more and more responsibility for co-management in the Territory. 48. The representatives of the (EI)/GCN are available to answer any questions that he Standing Committee on Transport, Infrastructure and Communities might have. As mentioned at the beginning of this document, however, discussions between the Crees and Canada to resolve disputes are and must remain confidential.

APPENDIX A MAP

APPENDIX B

PRESENTATION TO THE EXPERT PANEL ON THE ENVIRONMENTAL ASSESSMENT PROCESS PRESENTATION OF THE GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE)/ CREE NATION GOVERNMENT TO THE PANEL OF EXPERTS

ENVIRONMENTAL ASSESSMENT PROCESS REVIEW

27 OCTOBER 2016

1. Formed in 1974, the Grand Council of the Crees was, at the time, the Cree entity mandated by the Cree chiefs of the various communities of James Bay of Quebec to represent the regional interests.

2. Following the signing of the first modern Canadian treaty, the James Bay and Northern Quebec Agreement (JBNQA), in 1975, and subsequent changes, the Government of the Cree Nation is henceforth the Aboriginal party to the JBNQA that has the mandate to carry out the changes to that effect, in cooperation with the governments and responsible government agencies.

3. Chapter 22 of the JBNQA sets out the first modern regime for the assessment of development projects. That assessment is carried out by the tripartite and bipartite committees that assess projects’ environmental and social effects. One of the main objectives of the regime is to ensure that the Crees’ rights relating to hunting, fishing and trapping, and their right to participate in development, are protected in the development in Eeyou Istchee, the traditional territory of the Crees.

4. The following three committees were established pursuant to Chapter 22 of the JBNQA:

a) COMEV, the Assessment Committee, whose mandate is to preselect developments and recommend the level of assessment, if any. COMEV is composed of 6 members appointed by Quebec, Canada and the Government of the Cree Nation;

b) COMEX, the Review Committee, whose mandate is to review provincial projects. COMEX is composed of five members, three appointed by Quebec and two appointed by the Government of the Cree Nation;

c) COFEX, the Federal Review Committee, whose mandate is to review federal projects. COFEX is composed of three members appointed by the federal government and two members appointed by the Government of the Cree Nation.

5. Over the years, the Crees have been involved in litigation in relation to Chapter 22 of the JBNQA and the various federal assessment tools external to the JBNQA, including the guidelines for the EARP (Environmental Assessment and Review Process) and the CEAA 1992.

6. The Crees have never believed that a distinction should be made between “provincial” and “federal” projects based on their nature. This distinction arises from the jurisprudence, particularly the decisions in Eastmain 18 and Moses, 19 a Supreme Court of Canada decision.

18 Eastmain Band v. Canada (Federal Administrator), [1993] 1 F.C. 501. 19 Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557. 2

7. The federal assessment tools external to the JBNQA have always been problematic. They establish a regime foreign to the territory of the JBNQA.

8. The Crees have always tried to convince their federal interlocutors to use the existing structures of the JBNQA to assess all aspects of projects, rather than imposing a foreign process on them.

9. On only one occasion did we succeed in ensuring that structures similar to those in the JBNQA were used to assess a project. In 2003, Canada agreed to the Agreement Concerning the Environmental Assessments of the Eastmain-1-A and Rupert diversion project, which stated that, in addition to the COMEX review of the project, an review would be carried out by a joint Cree-Canada committee composed, like COFEX, of three members appointed by the federal government and two members appointed by the Government of the Cree Nation.

10. In Moses, the Supreme Court accepted the Crees’ arguments about the need to ensure Cree participation in the assessment of projects, in a manner compatible with the process of the JBNQA, even when the assessment is external to the treaty. Justice Binnie got to the heart of the matter when he wrote

[48] Common sense as well as legal requirements suggest that the CEAA assessment will be structured to accommodate the special context of a project proposal in 3

the James Bay Treaty territory, including the participation of the Cree.

11. In our opinion, all this means is that a project assessed by COMEX must also be assessed by COFEX, when indicated, with respect to its federal components.

12. Since 2010, we have been pursuing discussions with Canada to attempt to ensure that the changes ordered by Moses are negotiated and implemented appropriately.

13. In 2012, Canada decided to abandon the CEAA as it existed in 1992 and to create a new CEAA, without taking into consideration the ruling in Moses, Chapter 22 of the JBNQA and the on-going Cree- Quebec discussions.

14. The Grand Council of the Crees and the Government of the Cree Nation have opposed the CEAA 2012 since its creation.

15. We were prepared to begin proceedings before the courts regarding CEAA 2012, but we first initiated the dispute resolution process provided for in the Agreement on a New Relationship that we signed with Canada in 2008. We set out in detail the reasons that the CEAA 2012 poses a problem in the Territory of the JBNQA, in a document dated September 2013, which, in accordance with the dispute resolution process, is confidential.

16. Then we provided our federal interlocutors with two (2) other confidential documents:

a) In February 2014, a document that we entitled “Overview of the federal assessment processed adapted (CEAA 2012) in the Cree territory”.20

b) In February 2016, a detailed flowchart that we entitled “Cree- Canada environmental process adapted in the Cree territory”.21

17. These documents set out in detail the various solutions to the dispute. Our federal interlocutors have still not provided us with solutions to resolve the dispute, since they have still not received a sufficient mandate, six (6) years after Moses. We find that surprising.

18. We recognize that these matters are outside the scope of your deliberations, inasmuch as they are already the subject of a formal dispute resolution process. We do however wish to inform you of the dispute and certain solutions recommended in general terms.

19. Ironically, it was the federal reviews leading to the CEAA 2012 that helped block the process. We are anticipating that the same mistake will not be made and that, this time, the federal assessment will encourage and speed up the dispute resolution process.

20. So, what is the solution for the Territory of the JBNQA? It is relatively simple and is anchored by three (3) basic principles:

20 Exact title unavailable. 21 Exact title unavailable. 5

a) All assessments must be done by the entities of Chapter 22 of the JBNQA, not by entities foreign to the Territory and its inhabitants;

b) All projects with effects on matters under federal jurisdiction, such as navigable waters, fisheries, migratory birds or endangered species or that engage the mechanisms in any other way, must be preselected and assessed;

c) The permits required by all the authorities should be obtained.

21. In other words, a provincial project, such as a mine, should be assessed by COMEX. If such a project has potential effects on areas of federal jurisdiction, such as navigable waters, fisheries, migratory birds or endangered species, or if other agreed-to triggering elements require it, it could also be assessed by COFEX. The processes of COMEX and COFEX could be amalgamated. Last of all, all the required permits should be obtained.

22. The Canadian Environmental Assessment Agency, Fisheries and Oceans Canada, the Department of the Environment and Transport Canada could all take part in this process through the structures of the JBNQA.

23. We have prepared summary flowcharts that show how the federal assessment is currently carried out in the Territory of the JBNQA, and how we see it evolving (see the flowcharts entitled “Current assessment process under the JBNQA and the CEAA 2012” and

“Proposed assessment process under the JBNQA and federal legislative provisions”).

24. We favour amending Chapter 22 of the JBNQA to provide certainty.

25. Amending Chapter 22 would also allow the parties to modernize certain aspects of the regime, which dates from 1975, to ensure, among other things, that the process is as transparent as possible, in a manner similar to CEAA assessments.

26. The ideal situation would be if Quebec was part of the process, but we do not see any impediment to the Crees’ and Canada’s modernizing the portions of Chapter 22 of the JBNQA that concern federal matters.

27. We are available to answer any of your questions. We must remind you, however, that the discussions regarding resolution of the dispute are confidential.

Meegwetch. Merci. Thank you.

CURRENT ASSESSMENT PROCESS UNDER THE JBNQA AND THE CEAA 2012

ASSESSED PROJECTS

Provincial projects Federal projects Ex: Ex: • Mine • Airport

Process - JBNQA Process - JBNQA

• COMEX • COFEX (Review Committee– (Federal Review Representatives of Panel – Quebec and Crees) Representatives of Canada and Crees)

If triggered under If triggered under CEEA 2012 CEEA 2012

Process - CEEA Process - CEEA

• CEA Agency • CEA Agency • Canadian Nuclear • Canadian Nuclear Safety Commission Safety Commission • National Energy • National Energy Board Board • Other • Other

Other permits Other permits

PROPOSED ASSESSMENT PROCESS UNDER THE JBNQA AND FEDERAL LEGISLATIVE PROVISIONS

ASSESSED PROJECTS

Provincial projects Ex: • Mine

Federal projects Ex: • Airport

Option 1

COMEX • Review Committee – Option 2 COFEX Representatives of Quebec and Crees • Federal Review Committee – Representatives of Canada and If triggered (the triggers Crees are currently under

If triggered (the triggers are discussion in the dispute currently under discussion in resolution process) the dispute resolution process) Contribution from Canadian Environmental To be determined Assessment COFEX Agency, JOINT • Federal Review Committee Fisheries, COMEX / COFEX – Representatives of Transport REVIEW Canada and Crees Canada, Environment Canada and Other permits other federal 9 agencies

Other permits Other permits