Streamlining EA and Aboriginal treaties

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In a split 5-4 decision, the Supreme Court of Canada ruled last week that a mining project may not proceed without undergoing a federal environmental assessment. The decision turned on the EA of a mining project in the territory covered by the James Bay Treaty, signed in 1975 by the Cree and Inuit communities with the governments of Quebec and Canada.

Interestingly, the Treaty was groundbreaking at the time in its recognition of Aboriginal participation rights, but this time it was the federal government arguing that it was being shut out of the process.

Indeed, the top court had to rule on whether a conflict existed between the Treaty, which recognizes the province’s jurisdiction over environmental assessments, and federal law, which governs fisheries.

Quebec’s position was that Fisheries Canada could not refuse to issue a permit pending an evaluation of the environmental impacts of the project on fish habitat.

The Court held that, under the Treaty, the potentially harmful disruption or destruction of fish habitat could not escape scrutiny by the federal Fisheries Minister. The Court wrote:

“While there is no doubt that this project, considered in isolation, falls within provincial jurisdiction, a mining project anywhere in Canada that puts at risk fish habitat cannot proceed without a permit from the federal Fisheries Minister, which he or she cannot issue except after compliance with the CEAA.”

The ruling underlines some of the limits of streamlining the environmental assessment process.