Excerpt: The Court of Appeal decided that what Quebec did in this case constituted substantial and inexcusable violations of Treaty rights. ____________________________________________________ All materials on the OKT LLP website are for informational purposes only. Accessing this information does not create a lawyer-client relationship. The information does not constitute legal advice or an opinion on any issue. Court to Crown: Please stop making excuses for not fulfilling your treaty obligations Senwung Luk August 27, 2014 2:05 pm The Quebec Court of Appeal recently released a new decision on the duty of the Crown to comply with treaty obligations. At the time writing, the decision, called Makivik c Quebec (Procureure générale), is only available in French. The case was about the James Bay and Northern Quebec Agreement (JBNQA) of 1975, involving the Inuit, and certain Cree and Naskapi First Nations. The JBNQA set out obligations on the Quebec government to involve the Hunting, Fishing and Trapping Coordinating Committee established under the Treaty in decision-making about land management policies. The Aboriginal parties argued that Quebec failed to do so, and the Court of Appeal agreed. The way that the Court of Appeal analyzed the breach of treaty is very interesting in this case and this blog post will take a quick look at what the Court did. Background The JBNQA is the first modern land claim treaty, which is an agreement between Aboriginal parties and the Crown that is similar in nature to the historical “Numbered Treaties”. They are agreements between Aboriginal parties and the Crown to share the land. One distinctive feature of modern land claims treaties is the level of detail that they go into to set out the relationship between the Crown and the Aboriginal parties involved. In Chapter 24 of the JBNQA, the relationship between the Coordinating Committee and the Quebec government is set out. The Coordinating Committee is made up of representatives from the Aboriginal parties as well as from the Crown. It is meant to be a group with expertise in harvesting and in the management of the land. It is meant to come to decisions about what land management and conservation policies to recommend to the Minister. Under certain conditions, the Minister may choose to ignore the recommendations of the Committee, but the Treaty sets out that the Minister must consult with the Aboriginal parties whenever it disagrees with its recommendations. In 2010, studies had shown that there was an alarming decline in caribou stocks in the territory covered by the Treaty. The Coordinating Committee met to decide how to best deal with the situation for the 2011-2012 hunting season. Quebec had put forward some proposals for conservation measures, such as shortening the open season for the caribou hunt. The Aboriginal parties found those measures to be insufficient, and wanted to put forward stricter conservation policies. At the same time, the sports hunting lobby, through commercial outfitters, began lobbying the Quebec government against any new restrictions on hunting. As a result of this lobbying, the Quebec government unilaterally decided not to impose any new conservation measures for the 2011-2012 hunting season. It decided to ignore the recommendations given by the Coordinating Committee, and decided to forego the new conservation measures to protect the caribou, all without ever having talked to the Coordinating Committee. The Aboriginal parties took the Quebec government to court to challenge these decisions. The trial judge had concluded that no breach of the JBNQA took place, because the judge found that the previous meetings of the Coordinating Committee constituted sufficient consultation, and that the apparent breaches of the Treaty were insubstantial and of a technical nature only. Court of Appeal decision The Court of Appeal took a radically different approach as compared to the trial judge. Reading the provisions of the JBNQA, the Court found that there was a carefully designed scheme to make sure the Coordinating Committee is involved in the decision-making process about the land, especially when disagreements arose between the Aboriginal parties and the Crown. The Court of Appeal found that in reading all of the JBNQA provisions together, there were two broader treaty rights that could be found: (1) a right of the Aboriginal parties to priority in harvesting, and (2) a right of the Aboriginal parties to co-manage the land along with Quebec.
Posted on: Thu, 04 Sep 2014 13:25:16 +0000
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