In yet another forceful reminder that the Crown must hold consultations that are meaningful, conducted in good faith and held with an open mind, the Quebec Court of Appeal strongly endorsed the primacy of treaty rights of aboriginal peoples under the James Bay and Northern Québec Agreement in a decision widely expected to have ramifications across the country.
In landmark ruling that clearly signals that the courts are willing to enforce treaty rights, especially those that emanate from modern land claims treaties, the Quebec Court of Appeal held that the provincial government violated the treaty rights of the Cree, Inuit and Naskapi First Nations of northern Quebec when it unilaterally set caribou sport hunting levels and dates for the 2011-2012 season in the territories covered by the Treaty.
“This is an important judgment for aboriginal peoples who have signed a modern treaty, and for those who will eventually sign a modern treaty,” noted in an e-mail Jean-Sebastien-Clement, a Montreal lawyer with Gowling Lafleur Henderson LLP specializing in aboriginal law. “It confirms that a Court, when faced with a treaty violation, must declare the violation and issue a remedy appropriate to the circumstances, no matter what the circumstances are.”
Under Section 24 of the James Bay and Northern Québec Agreement (JBNQA), the first modern land claim treaty, an advisory body with equal representation between the native parties and the federal and provincial governments was established to provide expertise in harvesting and management of the land. While the provincial government can under certain circumstances choose to ignore recommendations made by the Hunting, Fishing and Trapping Coordinating Committee, the government must nevertheless consult with Aboriginal parties whenever it disagrees with its recommendations. It’s a process that has “actually worked very well” since it came into force in 1975, said David Schulze, one of the Montreal lawyers who successfully plead the case.
But in March 2011 Quebec’s Minister of Natural Resources disregarded recommendations made by the Committee, who wanted to put in place strict conservation measures for the 2011-2012 hunting season to protect an alarming decline in caribou stocks in the Leaf River and George River territories. Faced with pressure from the sports hunting lobby, “exasperated” by the aboriginal peoples, and a seeming administrative need to act urgently (it takes up to six months for the bureaucracy to amend a regulation), the Quebec government unilaterally changed the start date for the hunting season for the Leaf River herd and allowed hunting of the George River herd even though the advisory body recommended a total prohibition.
“This is a typical attitude of governments,” remarked Jean Leclair, a constitutional and aboriginal law professor at the Université de Montréal. “But in this case, it’s worse. We have a government who committed a blatant violation of the processes established by the Agreement. So while the ruling is extremely important because it states that governments can no longer bulldoze the rights of the Aboriginal peoples, it is extremely troubling to see that governments are prepared to breach modern treaties, which are detailed and explicit.”
The native parties took the Quebec government to court. The trial judge found that the Minister failed to comply with the consultation requirements set out by Section 24 of the JBNQA but held that it was merely a procedural irregularity, and therefore refused to declare that the Minister had breached his obligations under the JBNQA. But the Quebec Court of Appeal overturned the lower court ruling, and found that the Minister had indeed breached his constitutional obligations and the honour of the Crown by violating the rights of the Aboriginal parties to be consulted under Section 24 of the JBNQA.
“The ruling shouldn’t have been needed but it is an important decision,” said Schulze of Dionne Schulze, a lawyer specializing in aboriginal law. “What the decision really says is that the provisions of the Agreement are binding and really have to be respected, all of them, and that they have the force of law. Yet in this case the Quebec government chose to ignore parts of the JBNQA.”
The appeal court held that the JBNQA, as a land claim agreement and treaty, creates rights for the Aboriginal peoples that are protected by section 35 of the Constitution Act, 1982. The appeal court found that under the JBNQA Aboriginal parties have a right of priority in harvesting and a right to co-manage the land along with the Quebec government.
The Crown’s obligation to consult is not merely a procedural matter, said Justice Pierre Dalphond in the unanimous 23-page ruling in Corporation Makivik v. Quebec 2014 QCCA 1455. “The duty to consult in matters of Native rights claims cannot boil down to a procedure to follow; it also requires an open mind to be significant.” The Minister was bound to consult in good faith before exercising his regulatory power, and to have an open mind to the opinions and recommendations offered by the advisory body, added Justice Dalphond.
Heeding guidance from the Supreme Court of Canada in R. v. Sparrow,  1 SCR 1075, Justice Dalphond noted that the government is required to bear the burden of justifying any government regulation that infringes upon or denies aboriginal rights. It failed. By opting in favour of sports hunters over the Aboriginal parties need for harvesting to continue their way of life, the appeal court found that the Crown breached the right of the Aboriginal parties to priority in harvesting as recognized by the Treaty. It also found that the Quebec government breached the honour of the Crown by failing to consult with an open mind in implementing a treaty that provides for a mechanism to reconcile the interests of the Aboriginal peoples. Both of these breaches fell short of the test set out by the nation’s highest court.
“The problem was that Quebec deemed the process to be good as long as it suited them but when it went too slowly, they felt they could just skip the Agreement,” said Schulze. “That’s just at odds with the whole logic of the Agreement. In the Agreement, the Cree and the Inuit gave up their rights and title to two-thirds of Quebec in return for what’s in the agreement. The agreement is very long and detailed but that’s the promise, that in return they are going to get this process.”
The ruling is significant because it clarifies the constitutional or quasi-constitutional status of rights entrenched in the JBNQA, pointed out Caroline Briand, a Montreal lawyer with Cain Lamarre Casgrain Wells who represented the Naskapi. In fact, the judgment will likely have a reach that is far beyond the scope of Chapter 24 of the JBNQA, asserts Briand. “This decision will have an impact, and not only for the Naskapi, Cree and Inuit,” said Briand. “It’ll have an impact on all modern treaties as the judgment confirms the importance the Crown must give to modern treaties and the constitutional or quasi-constitutional rights entrenched in these treaties.”
It’s also noteworthy because it clearly indicates that the courts will countenance breaches of modern treaties under very narrow circumstances, said Senwung Luk, a Toronto lawyer with Olthuis, Kleer, Townshend LLP. “A fair question is why they should be able to resile at all from these agreements,” said Luk, a litigator in Aboriginal and treaty rights. “The courts have been letting the Crown resile from its obligations but the Quebec Court of Appeal says it is only going to be permitted in only very narrow circumstances.”
While the appeal court declared that what Quebec did was illegal and reserved the rights of the Native parties to claim compensation for any harm suffered by the breaches, Geneviève Motard had hoped that the appellate court would have been bolder. The remedy does not go far enough to dissuade governments from doing the same thing once again, says Motard, a professor specializing in aboriginal law at the Université de Laval. “It’s difficult to define what should be the remedy for a lack of consultation,” said Motard. “But the appeal court could have rescinded the regulation and give the government time to react and amend it. That would have sent a stronger message.”
While Clément agrees that it is not always “easy to find” a remedy under these circumstances, he says it is a good start. “The key concept here is that breaches will not go unpunished,” said Clément, one of the lawyers who successfully plead the case. “Unfortunately the Court of Appeal was dealing with a situation which was spent to a large extent. Therefore it chose to make a declaration, which is a good start. But it also reserved the right to sue for damages. This reservation was needed to send the message that breaches will not go unpunished.”
This story was originally published in The Lawyers Weekly.