Madam Chair and committee members, bonjour. On behalf of the Cree Nation of Eeyou Istchee, I thank you for the invitation to address you today with respect to Bill C-69.
[Witness speaks in Cree]
My name is Bill Namagoose. I'm the executive director of the Grand Council of the Crees, the Cree Nation government. With me today are Cree Nation government representatives Brian Craik, director of federal relations; Geoff Quaile, senior environment adviser; Kelly LeBlanc, environmental and social assessment coordinator; and Jean-Sébastien Clément, our legal counsel.
Bill C-69 must guarantee the Crees of Eeyou Istchee our treaty right under the James Bay and Northern Quebec Agreement to be active and mandatory participants in any environmental or social impact assessment of development projects carried out under federal legislation in the JBNQA territory of Eeyou Istchee. Any federal legislation providing for environmental or social assessment of development projects in the JBNQA territory of Eeyou Istchee must ensure that the assessment is conducted by the federal environmental and social impact review panel, known as the COFEX, established under section 22 of the JBNQA. To achieve these ends, Bill C-69 must provide for a carve-out or distinct regime that specifically addresses the JBNQA territory.
The Cree Nation of Eeyou Istchee counts more than 18,000 Eeyouch, or Cree, occupying our traditional territory of Eeyou Istchee. This territory covers over 400,000 square kilometres and is located mainly to the east and south of James Bay and Hudson Bay. We occupy and intensively use the entire area of Eeyou Istchee, both for our traditional way of of hunting, fishing, and trapping, and increasingly, for a wide range of modem economic activities.
As a result of massive hydroelectric and resource development over the past 40 years, the Cree of Eeyou Istchee have undergone extremely rapid and disruptive cultural, social, and environmental changes. These changes have caused enormous stress on the Cree in terms of our traditional way of life and culture. Fifty per cent of Hydro-Québec power is now generated in our territory.
I will now tum to the specific issues that relate to Bill C-69 and the assessment projects in Eeyou Istchee. Section 22 of the JBNQA sets out the first environmental and social impact assessment and review regime for development projects in Canada. I want to stress that the first environmental and social impact assessment in all of Canada was a gift from the Cree. This assessment is done by tripartite and bipartite committees that assess both the environmental and social impacts of projects.
One of the main objectives of the regime is to ensure that the Crees are active participants in the orderly development of the resources in Eeyou Istchee so as to safeguard their hunting, fishing, and trapping rights, as detailed in section 24 of the treaty.
There are four joint committees established under section 22 of the JBNQA. For today's purposes, the relevant committees are, first, the federal environmental and social impact review panel, also known as the COFEX, a joint Cree-Canada panel that is mandated to review projects under federal jurisdiction. The COFEX is composed of five members: three appointed by the federal government and two by the Cree Nation government. The second is the provincial environmental and social impact review committee, also known as the COMEX, a joint Cree-Quebec panel that is mandated to review projects subject to provincial legislation. The COMEX is composed of five members: three appointed by Quebec and two appointed by the Cree Nation government.
Over the years, the Crees have been involved in litigation regarding section 22 of the JBNQA and the various federal assessment processes external to the JBNQA, including the environmental assessment and review process, or EARP, guidelines and the Canadian Environmental Assessment Act, known as CEAA.
The most recent litigation on these issues ended up with the 2010 decision of the Supreme Court of Canada in Quebec v. Moses. The Moses judgment distinguishes between the environmental review processes internal to the JBNQA treaty and the environmental review processes external to the treaty as required by CEAA. The court held that the JBNQA treaty permits only internal review process, either federal, provincial, or combined. However, an external federal review process is also required where mandated by the federal environmental law.
The federal assessment process external to the JBNQA proved problematic in the past, as they set out a regime in JBNQA territory that did not take proper account of the specific context of the JBNQA treaty, a fact expressly noted in the Supreme Court of Canada in the Moses decision. In addition, federal assessment processes were set out despite the treaty requirements that the federal laws or regulations be established by and in accordance with section 22, including the Cree right to be active participants in the decisions made for the territory.
The key message of our submission today is that Bill C-69 should provide for a carve-out, or distinct regime, to address specifically the JBNQA territory. In so doing, Bill C-69 must guarantee the treaty rights of the Cree of the Eeyou Istchee under the JBNQA, as recognized in the Moses decision, to be active and mandatory participants in the assessment of development projects in Eeyou Istchee carried out under federal legislation. The mechanism to ensure this participation is the COFEX panel already established under section 22 of the JBNQA.
The Crees have consistently urged our federal counterparts to use COFEX, established by the JBNQA, to assess all projects subject to external federal review processes in the JBNQA territory, and not to impose a foreign process.
In Moses, the Supreme Court accepted the Cree arguments in respect to the necessity to ensure Cree participation in external federal environmental assessments of projects in a manner compatible with JBNQA processes. The following sentence of paragraph 48 of the judgment sums up this view of the Supreme Court. I quote:
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.
This statement indicates that a project subject to internal assessment by COMEX, under the JBNQA, should not be reviewed by COFEX when an external assessment process is required under federal legislation. We have been in discussions with Canada since 2010, including through the dispute resolution process further to the passing of CEAA 2012, in an attempt to ensure that the changes called for in the Moses judgment are properly implemented.
What is the solution for the JBNQA territory? The solution is simple and anchored in two basic principles flowing from the JBNQA treaty and the Moses decision. One, every time an internal assessment is carried out by COMEX under the JBNQA territory for a project that has impacts within areas of federal jurisdiction or that requires a federal permit, an environmental assessment should be carried out under the proposed impact assessment act. Two, impact assessments under the proposed impact assessment act in JBNQA Cree territory should be conducted through COFEX, already established under section 22 of the JBNQA, thus ensuring direct Cree participation as mandated by the Moses Supreme Court decision.
In order to ensure certainty and predictability, we urge Canada to engage with us immediately in discussions to make the necessary amendments to Bill C-69, and section 22 of the JBNQA, to put in place the various agreements and regulations required to give effect to the proposals that I have outlined here.
On the Canadian energy regulator act, the most pressing amendment required is to clarify that the consent of the concerned Cree first nation is required when a company proposes to construct a pipeline on category 1A lands, where our communities are located, or if a company proposes to engage in related activities or take possession of such lands. This requires an amendment to proposed section 317 of the Canadian energy regulator act.
In conclusion, Bill C-69 proposes a measure of consultation and accommodation with respect to first nations. However, the JBNQA, as affirmed by the Supreme Court of Canada in the Moses judgment, goes further by providing the Crees with the treaty right to full and mandatory participation in environmental and social impact assessments and reviews carried out in JBNQA territory.
We are available to answer any questions.
Thank you.