A-231-91
Le procureur général du Québec (Appellant)
(Intervenor)
v.
Cree Regional Authority and Bill Namagoose
(Respondents) (Applicants)
and
Raymond Robinson (Mis -en-cause) (Respondent)
and
Hydro -Québec (Mise-en-cause) (Intervenor)
INDEXED AS: CREE REGIONAL AUTHORITY V. CANADA (FEDER-
AL ADMINISTRATOR) (CA.)
Court of Appeal, Hugessen, MacGuigan and
Décary JJ.A.—Montréal, April 18; Ottawa, May
14, 1991.
Federal Court jurisdiction — Trial Division — Appeal from
Trial Division decision holding within its jurisdiction to hear
motion for mandamus against federal administrator appointed
by Order in Council specifying James Bay and Northern
Québec Agreement as authority — Federal Act giving effect to
Agreement — Whether statutory grant of federal jurisdiction
— Relationship between federal Act and Agreement —
According to its principal provisions and guidelines, Agree
ment intended to be legislated into effect by both Canada and
Quebec and to derive all legal force, even as contract, from
laws giving it effect and validity — Federal Act making
Agreement law — Agreement, ss. 22 and 23 authority for
Order in Council — Federal Court Act, s. 2 requiring adminis
trator's jurisdiction or powers, not appointment, be conferred
by Act of Parliament — Irrelevant whether Order in Council
regulation — Administrator 'federal board" for purposes of
Federal Court Act, ss. 2 and 18 as powers under Agreement
conferred by federal Act.
This was an appeal from the Trial Division decision that it
had jurisdiction to entertain a motion for mandamus ordering
the federal administrator appointed under sections 22 and 23 of
The James Bay and Northern Québec Agreement, to pursue the
federal environmental impact assessment and review proce
dures contemplated by those sections. Subsection 3(1) of the
James Bay and Northern Quebec Native Claims Settlement
Act (the federal Act) states that the Agreement was approved,
given effect and declared valid. Sections 22 and 23 of the
Agreement authorized the appointment of both federal and
provincial administrators. The administrator was appointed by
Order in Council which specified those sections as its authority.
Under Federal Court Act, section 18 a writ of mandamus
may be issued against a "federal board, commission or other
tribunal", which is defined in section 2 as any person having
"jurisdiction or powers conferred by or under an Act of Parlia
ment". The Trial Judge held that he had jurisdiction to grant
the relief sought as the Agreement was given the status of law
by the federal Act, and the Order in Council naming the
administrator was a regulation made under the authority of
subsection 3(5), the regulation-making power of the federal
Act. The issue was whether the federal administrator exercised
"jurisdiction or powers conferred by or under an Act of Parlia
ment", which required an analysis of the relationship between
the Agreement and the federal and provincial Acts.
The intervenors argued that the Agreement was a contract,
not an Act of Parliament. A statute cannot simply refer to a
contract or agreement to make it an integral part of a statute.
Accordingly, subsection 3(1) of the federal Act was inadequate
to render the Agreement law. Furthermore, since there have
been ten supplementary agreements modifying the Agreement
since it was signed, they could not all have been rendered law
by the federal Act, particularly those entered into after that
law was passed. Finally, neither the federal nor the provincial
authorities alone could render an Agreement, which relates to
the jurisdiction of both, law. Parliament must be presumed to
intend to legislate only within its jurisdiction, and so could not
be supposed to legislate so as to make the Agreement law.
The intervenors also argued that the Order in Council was
not a legislative enactment. The mechanism for the appoint
ment of an administrator is provided by sections 22 and 23 of
the Agreement and there are no explicit words in the federal
Act with respect to such an appointment. Since the Order in
Council was not made under subsection 3(5) of the federal Act,
the federal Administrator was not a "federal board, commis
sion or other tribunal". Furthermore, the Order in Council
could not be a regulation since it lacked the generality and
impersonality of a legislative norm.
The respondents argued that the Agreement received the
whole of its legal validity through the federal Act, not on its
own as a contract.
Held, the appeal should be dismissed.
The Trial Division had jurisdiction under Federal Court Act,
sections 2 and 18.
Neither Canada nor Quebec could purport on their own to
make the whole Agreement law by appending it as a schedule
to their Act. Neither legislature has attempted to do so.
The principal provisions of the Agreement indicated that it
was intended to have legal effect as a contract only for a
maximum of two years (unless extended by consent of the
parties). It was intended that it would be a legislated contract,
one that derived all of its legal force, even as a contract, from
the laws which were to give it effect and validity. There was no
confusion of jurisdiction, since both Canada and Quebec were
to legislate. It did not matter whether the validating legislation
was a single Act by each of Parliament and the National
Assembly or a congeries of legislation.
The legislative character of the Agreement was also evident
from the guiding principles set out in sections 22 and 23
thereof. Governments were to consider the rights of all people,
not just those of native peoples. Parliament did not intend to
incorporate the Agreement as a part of the law in the narrow
sense, but more broadly to give it its very legal definition, effect
and validity. Section 3 of the federal Act makes the Agreement
law. It does by law what the Agreement calls for and requires
as the condition of its own validity. Subsections 3(3) (extin-
guishing all native claims to the territory) and (4) (exempting
the monetary compensation from taxation) would not be super
fluous if the Agreement has the force of law.
The appointment was not made by the Government of
Canada as a contracting party under the Agreement, but by the
Governor in Council acting legislatively. The document of
appointment is not the source of jurisdiction or power. Federal
Court Act, section 2 requires that the jurisdiction or powers
exercised by the administrator be conferred by or under an Act
of Parliament, not that he be appointed by or under an Act of
Parliament.
It does not matter whether the Order in Council appointing
the federal administrator is a regulation as defined in the
Statutory Instruments Act and the Interpretation Act. All that
matters is the source of the Administrator's power once
appointed. Regardless of the characterization of the Order in
Council, the Administrator is a "federal board" for the pur
poses of sections 2 and 18 of the Federal Court Act in that his
powers under the Agreement are conferred on him by the
federal Act rather than by the Agreement itself. In this respect
his powers are the same as everything else in the Agreement:
they derive from the federal Act.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act approving the Agreement concerning James Bay
and Northern Québec, S.Q. 1976, c. 46.
An Act concerning Northern villages and the Kativik
Regional Government, S.Q. 1978, c. 87.
An Act respecting certain government departments, S.Q.
1979, c. 77.
An Act respecting Cree and Inuit Native persons, S.Q.
1978, c. 97.
An Act respecting hunting and fishing rights in the
James Bay and New Québec territories, S.Q. 1978, c.
92.
An Act respecting income security for Cree hunters and
trappers who are beneficiaries under the Agreement
concerning James Bay and Northern Québec, S.Q.
1979, c. 16.
An Act Respecting the Cree Regional Authority, S.Q.
1978, c. 89.
An Act respecting the land regime in the James Bay and
New Québec territories, S.Q. 1978, c. 93.
An Act respecting the legislation provided for in the
Northeastern Québec Agreement and amending other
legislation, S.Q. 1979, c. 25.
An Act respecting the Northeastern Québec Agreement,
S.Q. 1978, c. 98.
An Act respecting the police force of Cree villages and of
the Naskapi village, S.Q. 1979, c. 35.
An Act to again amend the Environment Quality Act,
S.Q. 1978, c. 94.
An Act to amend the Act respecting health services and
social services, S.Q. 1977, c. 48.
An Act to amend the Education Act, S.Q. 1978, c. 78.
An Act to amend the Social Aid Act, S.Q. 1976, c. 28.
An Act to create the La Grande Complex Remedial
Works Corporation, S.Q. 1978, c. 95.
An Act to establish the James Bay Regional Zone Coun
cil, S.Q. 1978, c. 90.
An Act to establish the Makivik Corporation, S.Q. 1978,
c. 91.
An Act to establish the Naskapi Development Corpora
tion, S.Q. 1979, c. 26.
An Act to incorporate the James Bay Native Develop
ment Corporation, S.Q. 1978, c. 96.
Charter of the French language, S.Q. 1977, c. 5.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5], ss. 18, 91(24).
Constitution Act, 1982, Schedule B, Canada Act, 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44], s. 35.
Cree-Naskapi (of Quebec) Act, S.C. 1984, c. 18.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 18, 23, 25,
44.
Interpretation Act, R.S.C., 1985, c. I-21.
James Bay and Northern Quebec Native Claims Settle
ment Act, S.C. 1976-77, c. 32, s. 3.
Statutory Instruments Act, R.S.C., 1985, c. S-22.
The Cree Villages Act, S.Q. 1978, c. 88.
The James Bay and Northern Québec Agreement.
The Quebec Boundaries Extension Act, 1912, S.C. 1912,
c. 45.
CASES JUDICIALLY CONSIDERED
APPLIED:
ITO — International Terminal Operators Ltd. v. Miida
Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28
D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241; Simon v.
The Queen et al., [1985] 2 S.C.R. 387; (1985), 71 N.S.R.
(2d) 15; 24 D.L.R. (4th) 390; 171 A.P.R. 15; 23 C.C.C.
(3d) 238; [1986] 1 C.N.L.R. 153; 62 N.R. 366; Coon
Come v. Québec Hydro-Electric Commission, No. 500-
05-004330-906, LeBel J., judgment dated 28/6/90, Que.
S.C., not yet reported; Canada (Attorney General) c.
Coon Come, [1991] R.J.Q. 922 (C.A.).
DISTINGUISHED:
Association of Radio and Television Employees of
Canada (CUPE-CLC) v. Canadian Broadcasting Corpo-
ration, [1975] 1 S.C.R. 118; (1973), 40 D.L.R. (3d) 1;
[1974] 1 W.W.R. 430; Rogers v. National Harbours
Board, [1979] 1 F.C. 90 (C.A.); Southam Inc. v. Canada
(Attorney General), [1990] 3 F.C. 465; (1990), 73 D.L.R.
(4th) 289 (C.A.).
CONSIDERED:
Canadian Northern Pacific Railway Company v. New
Westminster Corporation, [1917] A.C. 602 (P.C.); Re
City of Toronto and Toronto and York Radial R.W. Co.
and County of York (1918), 42 O.L.R. 545; 43 D.L.R.
49; 23 C.R.C. 218 (App. Div.); Winnipeg v. Winnipeg
Electric Ry. Co. (1921), 31 Man. R. 131; 29 D.L.R. 251;
[1921] 2 W.W.R. 282 (C.A.); Ottawa Electric Railway
Co. v. The City of Ottawa, [1945] S.C.R. 105; (1944), 57
C.R.T.C. 273; Re Carter and the City of Sudbury,
[1949] O.R. 455; [1949] 3 D.L.R. 756; 64 C.R.T.C. 113
(H.C.); Houde v. Quebec Catholic School Commn.,
[1978] 1 S.C.R. 937; (1977), 80 D.L.R. (3d) 542; 17
N.R. 451; P.G. du Québec c. Albert, [1983] C.S.P. 1017
(Qué.); P.G. du Québec c. Collier, [1983] C.S. 366
(Qué.); P.G. du Québec c. Collier, [1985] C.A. 559;
(1985), 23 D.L.R. (4th) 339 (Qué.); Quebec (Attorney
General) v. Brunet; Quebec (Attorney General) v. Albert;
Quebec (Attorney General) v. Collier, [1990] 1 S.C.R.
260; (1990), 66 D.L.R. (4th) 575; Chait c. Northern
Quebec Inuit Association, [1986] R.J.Q. 929 (S.C.);
Roberts v. Canada, [1989] 1 S.C.R. 322; [1989] 3
W.W.R. 117; (1989), 35 B.C.L.R. (2d) 1; 25 F.T.R. 161;
92 N.R. 241.
REFERRED TO:
R. v. Sioui, [1990] 1 S.C.R. 1025; (1990), 30 Q.A.C.
287; 70 D.L.R. (4th) 427; 56 C.C.C. (3d) 225; [1990] 3
C.N.L.R. 127; 109 N.R. 22.
COUNSEL:
Jean Bouchard and Robert Monette for
appellant (intervenor) procureur général du
Québec.
James A. O'Reilly, Peter W. Hutchins, Kath-
leen. Lawand and Franklin S. Gertler for
respondents (applicants).
J. M. Aubry for mis -en-cause (respondent)
Raymond Robinson.
Georges Emery, Q.C. and Sylvain Lussier for
mise-en-cause (intervenor) Hydro -Québec.
Gérard Dugré and John D. Hurley for inter-
venor Makivik Corp.
SOLICITORS:
Bernard, Roy & Associates, Montréal, for
appellant (intervenor) procureur général du
Québec.
O'Reilly, Mainville, Montréal, for respond
ents (applicants).
Deputy Attorney General of Canada for mis -
en-cause (respondent) Raymond Robinson.
Desjardins, Ducharme, Montréal, for mise-
en-cause (intervenor) Hydro -Québec.
Byers, Casgrain, Montréal, for intervenor
Makivik Corp.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.A.: This case explores the rela
tionship among The James Bay and Northern
Québec Agreement ("the Agreement"), Éditeur
officiel du Québec, 1976, which was executed in
the City of Québec on November 11, 1975, the
James Bay and Northern Quebec Native Claims
Settlement Act ("the federal Act"), S.C. 1976-77,
c. 32, which received Royal Assent on July 14,
1977, and An Act approving the Agreement con
cerning James Bay and Northern Québec ("the
provincial Act"), S.Q. 1976, c. 46, assented to on
June 30, 1976. There is only one other federal law
which might be said to be in implementation of the
Agreement: the Cree-Naskapi (of Quebec) Act,
S.C. 1984, c. 18. On the other hand, the interven-
ors listed 22 other provincial Acts which are imple-
mentive of the Agreement.' For the sake of sim
plicity, I shall refer to the federal Acts and the
1 An Act to amend the Social Aid Act, S.Q. 1976, c. 28; An
Act to amend the Act respecting health services and social
services, S.Q. 1977, c. 48; An Act to amend the Education Act,
S.Q. 1978, c. 78; An Act concerning Northern villages and the
(Continued on next page)
provincial Acts in the singular, while keeping in
mind this multiplicity.
The Agreement was two years in the negotiat
ing, among the Grand Council of the Crees of
Québec, the Northern Québec Inuit Association,
the Government of Québec, the James Bay Energy
Corporation, the James Bay Development Corpo
ration, the Québec Hydro-Electric Commission,
and the Government of Canada. It covers an area
of some 410,000 square miles, which is part of the
land transferred to the province of Quebec from
the Northwest Territories by The Quebec Bound
aries Extension Act, 1912 [S.C. 1912, c. 45] ("the
1912 Act"). By the 1912 Act, in addition to
acquiring territory, Quebec assumed the obligation
to settle such land questions and other claims as
the native people might raise. This obligation
remained undefined until the coming into effect of
the Agreement.
(Continued from previous page)
Kativik Regional Government, S.Q. 1978, c. 87; The Cree
Villages Act, S.Q. 1978, c. 88; An Act Respecting the Cree
Regional Authority, S.Q. 1978, c. 89; An Act to establish the
James Bay Regional Zone Council, S.Q. 1978, c. 90; An Act to
establish the Makivik Corporation, S.Q. 1978, c. 91; An Act
respecting hunting and fishing rights in the James Bay and
New Québec territories, S.Q. 1978, c. 92; An Act respecting the
land regime in the James Bay and New Québec territories,
S.Q. 1978, c. 93; An Act to again amend the Environment
Quality Act, S.Q. 1978, c. 94; An Act to create the La Grande
Complex Remedial Works Corporation, S.Q. 1978, c. 95; An
Act to incorporate the James Bay Native Development Corpo
ration, S.Q. 1978, c. 96; An Act respecting Cree and Inuit
Native persons, S.Q. 1978, c. 97; An Act respecting the
Northeastern Québec Agreement, S.Q. 1978, c. 98; An Act
respecting the legislation provided for in the Northeastern
Québec Agreement and amending other legislation, S.Q. 1979,
c. 25; An Act to establish the Naskapi Development Corpora
tion, S.Q. 1979, c. 26; An Act respecting income security for
Cree hunters and trappers who are beneficiaries under the
Agreement concerning James Bay and Northern Québec, S.Q.
1979, c. 16; An Act respecting the police force of Cree villages
and of the Naskapi village, S.Q. 1979, c. 35; Charter of the
French language, S.Q. 1977, c. 5; Amendments in 1976, 1977
and 1978 to the Civil Code, to the Code of civil procedure and
to the Territorial Division Act, L.R.Q., c. D-11; An Act
respecting certain government departments, S.Q. 1979, c. 77.
By the Agreement and the federal and provin
cial Acts, the Cree and the Inuit surrendered the
rights they claimed over the territory in return for
the rights and benefits given them by both govern
ments. As a result, the Government of Quebec for
the first time extended its administration, its laws,
its services, and its governmental structures
throughout the area, and Phase I of the hydroelec
tric power development sought by the Province
was able to take place.
In respect of land, the Agreement established
three categories: Category I lands (3,250 square
miles) were allocated to the native peoples for
their exclusive use and self-administration; Cate
gory II lands comprised territory where the native
peoples were to have exclusive hunting, fishing and
trapping rights but no special right of occupancy;
and Category III lands were the vast proportion of
the territory remaining, public lands to which the
entire population, including but not limited to
native peoples, were to have access for all pur
poses, including hunting, fishing and trapping, in
accordance with the ordinary laws and regulations
of Quebec.
The Agreement also established environmental
and social protection regimes for the territory cov
ered. Section 22 of the Agreement dealt with all
territory south of the 55th parallel of latitude and
some Category I and II lands north of that paral
lel. The environmental and social protection
regime of section 23 applied to all territory north
of the 55th parallel except those lands covered by
section 22.
The present federal administrator, Raymond
Robinson ("Robinson") was appointed by Order in
Council, P.C. 1988-1800, on August 25, 1988, as
follows (Appeal Book, at page 165):
HER EXCELLENCY THE GOVERNOR GENERAL IN
COUNCIL, on the recommendation of the Minister of the
Environment and the Minister of Indian Affairs and Northern
Development, pursuant to subparagraph 22.1.1(ii) and para
graph 23.1.2 of the James Bay and Northern Quebec Agree
ment, is pleased hereby to appoint Mr. Raymond Robinson, of
the Federal Environmental Assessment Review Office, Execu
tive Chairman, administrator, in the case of matters involving
federal jurisdiction, for the purpose of sections 22 and 23 of the
said agreement, to hold office during pleasure, in the place of
Mr. Gilles Lamoureux.
In recent months the Government of Quebec,
the James Bay Corporation and Hydro -Québec
have made public their intention to proceed with
Phase II of the hydroelectric power development,
to be called the Great Whale River Hydroelectric
Project, and there has been a calling of tenders for
the clearing for, and construction of, an access
road. Federal ministers initially took the position
that an environmental assessment should precede
Phase II but in November 1990 Robinson
informed the Cree that he had no mandate to
apply a federal environmental assessment. Then,
on February 12, 1991, the Government of Canada
entered into an agreement with the Government of
Quebec excluding the federal environmental
impact assessment procedures under sections 22
and 23 of the Agreement. One week later, on
February 19, 1991, the native applicants brought
this application in the Trial Division to compel
Robinson to undertake these environmental assess
ment procedures.
I
The case began in the Trial Division as a motion
by the respondents/applicants for an order of man-
damus against the mis-en-cause/respondent Rob-
inson, ordering him as federal administrator to
comply with sections 22 and 23 of the Agreement
and with the federal Act in regard to the Great
Whale River Hydroelectric Project, and specifical
ly to pursue the federal impact assessment and
review procedures contemplated by the said sec
tions of the Agreement and by the federal Act, or
alternatively to obtain an order of injunction, or
other relief ordering him to comply with the said
sections and to pursue the said procedures.
On March 13, 1991, Rouleau J. [[1991] 2 F.C.
422] determined that the Trial Division had juris
diction to entertain the motion for relief, rejecting
the preliminary objection of the appellant/inter-
venor and accepting the position of the respond-
ents/applicants. Robinson, the mis -en-cause/
respondent, represented by the Attorney General
of Canada, took the same position before Rou-
leau J. as the appellant/intervenor (but made no
submission on this appeal).
The Supreme Court of Canada recently restated
the essential requirements for a finding of Federal
Court jurisdiction in ITO—International Termi
nal Operators Ltd. v. Miida Electronics Inc. et al.,
[1986] 1 S.C.R. 752, at page 766, as follows:
1. There must be a statutory grant of jurisdiction by the federal
Parliament.
2. There must be an existing body of federal law which is
essential to the disposition of the case and which nourishes the
statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of
Canada" as the phrase is used in s. 101 of the Constitution Act,
1867.
Rouleau J. found that this matter clearly qualified
for Federal Court jurisdiction under conditions 2
and 3 and that only the first condition was subject
to question. Before this Court only the first condi
tion was put into issue.
The jurisdiction of the Trial Division is at first
blush based on section 18 of the Federal Court
Act, R.S.C., 1985, F-7, which is as follows:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranta, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
By section 18 a writ of mandamus or an injunction
may be issued against a "federal board, commis
sion or other tribunal." This phrase is defined in
section 2 of the Federal Court Act, 2 as follows:
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act
of Parliament, other than any such body constituted or
established by or under a law of a province or any such
2 In the Federal Court Act as originally passed, S.C. 1970-
71-72, c. 1, the same definition was located in s. 2(g), and that
reference is sometimes found in the materials of the case at bar.
person or persons appointed under or in accordance with a
law of a province or under section 96 of the Constitution Act,
1867;
The issue, then, comes to be whether Robinson
exercised "jurisdiction or powers conferred by or
under an Act of Parliament," the intervenors 3
taking the position that the Agreement is a con
tract, and not an Act of Parliament, and that the
Order in Council by which he was appointed is not
a legislative enactment.
The Trial Judge dealt with this issue as follows
(at pages 429-432):
The initial submission put forth by the respondents, as well
as the intervenors, was to the effect that the statute passed by
the Parliament of Canada ratifying the Agreement did not of
itself incorporate all terms of the Agreement; was not an
enactment and therefore created no federal jurisdiction; it was
not a statute, therefore, the appointment of Mr. Robinson, by
Order in Council, was not by enactment, and could not clothe
this Court with jurisdiction to grant the relief sought. Most
counsel relied upon and referred me to a quote from Halsbury's
Laws of England, 4th ed. at paragraph 938 in volume 44 and
argued that from a reading of what was contained therein, a
simple ratification of a contract by Parliament did not have the
force and effect of a statute. The following is the quote from
Halsbury:
938. Statutory confirmation of contracts. Where a contract
is confirmed by statute, no objection can be taken as to its
validity. It cannot, for example, be challenged for uncertain
ty or remoteness; nor is it material that it creates a right
which could not be created by ordinary contract. It does not
follow that, because it is confirmed by statute, a contract has
the force and effect of a statute, but the terms in which it is
confirmed may show that Parliament intended it to operate
as a substantive enactment as if the contract had become
part of the statute, and it will certainly have such an
operation if the statute in question, in addition to confirming
it, expressly requires it to be carried into execution. A
contract having substantive effect in this way may according
ly affect persons who are not parties to it.
Most other authorities and jurisprudence relied upon by the
respondent as well as the intervenors were irrelevant. The
authorities referred to may be summarized as incidents where a
specific grant of jurisdiction had been conferred on other bodies
or cases where it was clearly determined that the jurisdiction
belonged in Provincial Superior courts.
It appears evident and clear to me that counsel has miscon
strued the passage. A careful reading would seem to indicate
the contrary. In fact it suggests that when the terms of the
statute clearly confirm what Parliament intended, and it
expressly requires that the terms of the contract be carried into
execution, it becomes part of the law. The federal Parliament
confirmed the Agreement by statute on the 14th of July 1977,
3 By this word I mean the appellant, le Procureur général du
Québec, and the other intervenor, Hydro -Québec.
S.C. 1976-77, c. 32. The opening paragraph of the preamble is
as follows:
An Act to approve, give effect to and declare valid certain
agreements between the Grand Council of the Crees (of
Quebec), the Northern Quebec Inuit Association, the Gov
ernment of Quebec, la Société d'énergie de la Baie James - la
Société de développement de la Baie James, la Commission
hydro-électrique de Québec and the Government of Canada
and certain other related agreements to which the Govern
ment of Canada is a party.
The preamble goes on to explain that the government of
Canada has assumed certain obligations under the Agreement
respecting the Crees and the Inuit. It relates that it is setting
aside, for the native peoples, certain lands for hunting, fishing
and trapping in accordance with the established regime; it seeks
their active participation in the administration of the Territory;
it attempts to safeguard and protect their future and to ensure
their involvement in the development of their Territory. It
refers to the establishment of laws, regulations and procedures
to protect the environment and more particularly, refers to
remedial and other measures respecting hydroelectric develop
ment.
The preamble goes on to state, that in consideration of the
surrender of the native claims to this portion of the territory of
Quebec, the government of Canada recognizes and affirms a
special responsibility to protect the rights, privileges and ben
efits given to the native peoples under the Agreement (see e.g.
section 3). The Agreement was tabled by the Minister of Indian
Affairs and Northern Development and approved and declared
valid by Parliament.
Section 13 of the Interpretation Act [R.S.C., 1985, c. I-21]
provides that the preamble of a statute shall be read as part of
the enactment and is intended to assist in explaining its purport
and object.
How then can it be argued that Parliament did not contem
plate that the Agreement form part of the statute and the law
of Canada? There is no doubt in my mind that Parliament
intended the Agreement to operate as a substantive enactment,
as if the Agreement had become part of the statute. Parliament
appears unequivocal as to its intention and purpose.
I am therefore satisfied that the appointment of the adminis
trator, pursuant to subsection 3(5) of the statute allowing the
Governor in Council to make regulations which are necessary
for the purpose of carrying out the agreement or for giving
effect to any of the provisions thereof, does not arise from a
joint provincial/federal authority but exclusively from a federal
enactment.
The Order in Council specifies that Mr. Robinson is to be the
administrator in matters involving federal jurisdiction for the
purpose of sections 22 and 23 of the James Bay and Northern
Quebec Agreement.
Having concluded that the James Bay and Northern Quebec
Agreement forms part of the federal statute, Mr. Robinson is
thus a person exercising powers conferred by or under an Act of
Parliament, and is a "federal board" as specified in paragraph
2(g) of the Federal Court Act. I find that I have jurisdiction
under section 18 of the Federal Court Act to entertain the
motion for the relief claimed.
Should the above analysis prove to be incorrect, I would
suggest that this Court has jurisdiction either under section 44
of the Federal Court Act or in exercising its powers for "the
better administration of the laws of Canada" (section 101,
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]).
We have at bar a federal administrator with no apparent
authority having the power to review his acts or omissions. It is
well established that federal appointees must be either specifi
cally governed by applicable regulation or subject to some other
review mechanism.
In the absence of such a review mechanism, and given that
Indian Affairs and the Environment fall under federal jurisdic
tion, it may well be "just and convenient" for this Court to
consider the granting of mandamus or an injunction under
section 44 of the Federal Court Act.
In the case of ITO—International Terminal Operators Ltd.
v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752, it was
established that there are 3 essential requirements to determine
whether or not this Court has jurisdiction ....
There is no doubt that this matter complies with conditions 2
and 3. The question to be answered is "Must there be a
statutory grant of jurisdiction by the federal Parliament?"
Being satisfied that there is a lacuna with respect to the
granting of any supervisory role over Mr. Robinson, and unable
to envisage any other body capable of exercising the function, I
must conclude that jurisdiction to review actions of Mr. Robin-
son rests with this Court.
In reaching this conclusion, I cannot help but be directed by
the words of Dickson C.J. in R. v. Sparrow, [ 1990] 1 S.C.R.
1075, in which courts are directed that "the Sovereign's inten
tion must be clear and plain if it is to extinguish an aboriginal
right".
I feel a profound sense of duty to respond favourably. Any
contrary determination would once again provoke, within the
native groups, a sense of victimization by white society and its
institutions. This Agreement was signed in good faith for the
protection of the Cree and Inuit peoples, not to deprive them of
their rights and territories without due consideration. Should I
decline jurisdiction, I see no other court of competent jurisdic
tion able to resolve this issue.
In the submission of the intervenors, which
seems to me to be accurately stated, the Trial
Judge came to his conclusion on three bases: (1)
that the text of the Agreement was given the
status of law by the federal Act; (2) that the Order
in Council naming Robinson is a regulation made
under the authority of subsection 3(5), the regula-
tion-making power of the federal Act; and (3) that
any other decision would leave a lacuna in the law,
depriving the native peoples of any remedy.
The principal battleground was the first of the
Trial Judge's bases for decision. It is undeniably
true, as the intervenors stated, that the mechanism
for the appointment of an administrator is pro
vided by sections 22 and 23 of the Agreement, and
that there are no explicit words in the federal Act
with respect to such an appointment.
The intervenors argued that it has never been
sufficient for a statute simply to refer to a contract
or agreement to make it an integral part of a
statute, and referred us to the following authori
ties: Canadian Northern Pacific Railway Com
pany v. New Westminster Corporation, [1917]
A.C. 602 (P.C.) (an agreement attached to an Act
as a schedule, and said to be taken as if its
provisions had been expressly enacted and formed
an integral part of the Act, was held to be legislat
ed); Re City of Toronto and Toronto and York
Radial R.W. Co. and County of York (1918), 42
O.L.R. 545 (App. Div.) (a statute made the privi
leges and franchises created by an agreement to be
existent and valid to the same extent and in the
same manner as if set out and enacted as part of
the statute, so that the privileges and franchises
were held to be legislated); Winnipeg v. Winnipeg
Electric Ry Co. (1921), 31 Man. R. 131 (C.A.) (a
by-law, attached as a schedule to an Act and said
to be validated and confirmed in all respects as if it
had been enacted by the legislature, was only a
by-law and not a part of the Act); Ottawa Electric
Railway Co. v. The City of Ottawa, [1945] S.C.R.
105 (the Supreme Court split as to whether an
agreement was merely made valid as a contract or
was to be taken to be the subject of statutory
enactment); Re Carter and the City of Sudbury,
[1949] O.R. 455 (H.C.), at page 460 ("It is not
sufficient for the purpose of making a schedule or
agreement a part of an Act that words in the Act
merely confirm and validate the schedule or agree
ment"); Houde v. Quebec Catholic School
Commn., [1978] 1 S.C.R. 937 (Pigeon J., dissent-
ing—whether an appendix of an Act is less binding
than the Act itself depends on the character the
legislature gave to this appendix); P.G. du Québec
c. Albert, [1983] C.S.P. 1017 (Qué.) (Dutil J.—
the text of the Agreement in the case at bar is not
part of the text of the provincial law); P.G. du
Québec c. Collier, [1983] C.S. 366 (Qué.) (Des -
chênes C.J. agreed with Dutil J.). 4 According to
this line of argument, the words of the federal Act
in subsection 3(1) are inadequate to render the
Agreement a law. Those words read as follows:
3. (1) The Agreement is hereby approved, given effect and
declared valid.
Allegedly, they do not even go so far as the words
rejected as inadequate for the same purpose in,
e.g., the Winnipeg Electric Ry. Co. case, supra.
The intervenors also drew an analogy with the
parliamentary practice of using the phraseology
"is approved and has the force of law" in the
implementation of treaties with other states. To
the extent that this is a terminological argument, it
invokes the same considerations as the intervenors'
previously stated contention with respect to sub
section 3(1) of the federal Act. To the extent that
it might be meant to imply that agreements with
native peoples have the status of international
treaties, I would recall the words of Dickson C.J.
in Simon v. The Queen et al., [1985] 2 S.C.R. 387,
at page 404: "An Indian treaty is unique; it is an
agreement sui generis which is neither created nor
terminated according to the rules of international
law." See also R. v. Sioui, [ 1990] 1 S.C.R. 1025,
at page 1038 per Lamer J. (as he then was).
The intervenors also pointed out that, since the
signing of the Agreement, ten supplementary
agreements modifying the Agreement have been
found necessary. Could all of these be said to have
been rendered law by the federal Act, even those
entered into after that law was passed? How could
4 The Albert and Collier judgments were upheld by the
Quebec Court of Appeal, [1985] C.A. 559, and by the Supreme
Court, [1990] 1 S.C.R. 260 without reference to this point.
But, to the contrary, see Chait c. Northern Quebec Inuit
Association, [1986] R.J.Q. 929 (S.C.), where Durand J. held
that provisions in the Agreement concerning the Northern
Québec Inuit Association were given the force of law by the
provincial Act.
such an open-ended process be embraced by a
statute so as to make all the subsequent amend
ments to the Agreement law?
Finally, it was argued that, since the Agreement
relates to the jurisdiction of both federal and
provincial authorities, neither one by itself could
render the Agreement law. Parliament must be
presumed to intend to legislate only within its
jurisdiction, and so could not be supposed to legis
late so as to make the Agreement law.
It was sought to support and amplify this point
by reference to the amendment provisions found in
many sections of the Agreement. The following,
sub-section 5.6, is typical (Agreement, at page 71):
5.6 Legislation
The provisions of this Section can only be amended with the
consent of Canada and the interested Native party, in mat
ters of federal jurisdiction, and with the consent of Québec
and the interested Native party, in matters of provincial
jurisdiction.
Legislation enacted to give effect to the provisions of this
Section may be amended from time to time by the National
Assembly of Québec in matters of provincial jurisdiction, and
by Parliament in matters of federal jurisdiction.
Taking this argument first, I must say that I
cannot see how such provisions further the inter-
venors' position, except in the sense that neither
Canada nor Quebec could purport on their own to
make the whole Agreement law, by, e.g., append
ing it as a schedule to their Act and hence, argu
ably, incorporating the whole into their legislative
corpus. As far as I can see, neither legislature has
attempted to do any such thing. The real question
is as to the true relationship between the Agree
ment and the federal and provincial Acts.
The respondents asserted the contrary of the
intervenors in all respects. However, they also
adopted the alternative strategy of not so much
meeting the onslaught of the intervenors head-on,
as turning its flank. In this respect they stated the
issue to be, not that the Agreement was legislated
by Parliament as a whole (to the extent of federal
legislative jurisdiction) through the federal Act,
but rather that it nevertheless received the whole
of its legal validity through the federal Act, not on
its own as a contract. It is this approach that I
wish to pursue, by looking initially to the Agree
ment rather than to the federal Act as a back
ground to the intention of Parliament in the feder
al Act itself.
II
The last of the recitals to the Agreement reads as
follows (Agreement, at page 2):
WHEREAS it is appropriate that it be recommended to Parlia
ment and to the National Assembly of Québec that the agree
ment herein set forth (hereinafter referred to as the "Agree-
ment") be approved and given effect to by suitable legislation.
Following on from that, the heart of the legal
regime contemplated by the Agreement is found in
section 2, the relevant provision_ s of which are the
following [at pages 5-12] :
Section 2 Principal Provisions
2.1 In consideration of the rights and benefits herein set
forth in favour of the James Bay Crees and the Inuit of
Québec, the James Bay Crees and the Inuit of Québec
hereby cede, release, surrender and convey all their
Native claims, rights, titles and interests, whatever they
may be, in and to land in the Territory and in Québec,
and Québec and Canada accept such surrender.
2.2 Québec and Canada, the James Bay Energy Corpora
tion, the James Bay Development Corporation and the
Québec Hydro-Electric Commission (Hydro -Québec),
to the extent of their respective obligations as set forth
herein, hereby give, grant, recognize and provide to the
James Bay Crees and the Inuit of Québec the rights,
privileges and benefits specified herein, the whole in
consideration of the said cession, release, surrender and
conveyance mentioned in paragraph 2.1 hereof.
Canada hereby approves of and consents to the
Agreement and undertakes, to the extent of its obliga
tions herein, to give, grant, recognize and provide to the
James Bay Crees and the Inuit of Québec their rights,
privileges and benefits herein.
2.5 Canada and Québec shall recommend to the Parliament
of Canada and to the National Assembly of Québec
respectively, forthwith upon the execution of the Agree
ment, suitable legislation to approve, to give effect to
and to declare valid the Agreement and to protect,
safeguard and maintain the rights and obligations con
tained in the Agreement. Canada and Québec under
take that the legislation which will be so recommended
will not impair the substance of the rights, undertakings
and obligations provided for in the Agreement.
Both the federal and provincial legislation approving
and giving effect to and declaring valid the Agreement,
if adopted, shall provide that, where there is an incon
sistency or conflict between such legislation and the
provisions of any other federal or provincial law, as the
case may be, applicable to the Territory, the former
legislation shall prevail to the extent of such inconsisten
cy or conflict. Canada and Québec acknowledge that
the rights and benefits of the Indians and Inuit of the
Territory shall be as set forth in the Agreement and
agree to recommend that the federal and provincial
legislation approving, giving effect and declaring valid
the Agreement will provide for the repeal of Sub-Sec
tions c), d) and e) of Section 2 of the federal Québec
Boundaries Extension Act, 1912, and of the same Sub
Sections of Section 2 of the Schedule to the provincial
Québec boundaries extension act, 1912.
The provincial legislation approving, giving effect to
and declaring valid the Agreement shall allocate lands
in the manner set forth in the Agreement, notwithstand
ing any other provincial laws or regulations.
2.6 The federal legislation approving, giving effect to and
declaring valid the Agreement shall extinguish all native
claims, rights, title and interests of all Indians and all
Inuit in and to the Territory and the native claims,
rights, title and interests of the Inuit of Port Burwell in
Canada, whatever they may be.
2.7 During the Transitional Period of two (2) years referred
to herein, Canada and Québec shall to the extent of
their respective obligations, take the measures necessary
to put into force, with effect from the date of execution
of the Agreement, the Transitional Measures referred to
in the Agreement.
Except for such Transitional Measures, the Agree
ment shall come into force and shall bind the Parties on
the date when both the federal and provincial laws
respectively approving, giving effect to and declaring
valid the Agreement are in force.
Upon the coming into force of the said federal and
provincial legislation the Transitional Measures shall be
replaced by all the other provisions of this Agreement.
All acts done by the Parties in virtue of the said
Transitional Measures shall then be deemed to have
been ratified by all the Parties hereto.
2.9.8 In the event that the legislation referred to in paragraph
2.5 hereof does not come into force within a period of
two (2) years from the execution of the Agreement
then, notwithstanding the Transitional Measures herein
specified, nothing in the Agreement shall be construed
as imposing any obligation upon Québec or Canada to
continue any or all of the Transitional Measures or any
other obligation or undertaking referred to elsewhere in
the Agreement. Nevertheless, Québec and Canada, to
the extent of their respective undertakings, agree to
assume and implement the Transitional Measures pro-
vided for herein and the Crees, the Inuit of Québec and
the Inuit of Port Burwell have accepted same on the
basis that suitable legislation shall be adopted to put the
Agreement into force and effect.
2.9.9 The Transitional Period may be extended by consent of
all Parties.
2.15 The Agreement may be, from time to time, amended or
modified in the manner provided in the Agreement, or
in the absence of such provision, with the consent of all
the Parties. Whenever for the purposes of, or pursuant
to, the Agreement, unless otherwise expressly specified,
consent is required in order to amend or modify any of
the terms and conditions of the Agreement, such con
sent may be given on behalf of the Native people by the
interested Native parties.
2.16 The Agreement shall, within four months from the date
of execution, and in a manner satisfactory to Canada,
be submitted to the Inuit and the Crees for purposes of
consultation and confirmation. The Transitional Meas
ures provided for herein and the provisions of Sub
Sections 25.5 and 25.6 shall take effect only from the
time of such confirmation but retroactive to the date of
the execution of the Agreement.
2.17 Canada and Québec shall recommend that legislative
effect be given to the Agreement by Parliament and the
National Assembly, subject to the terms of the Agree
ment and the legislative jurisdiction of Parliament and
the National Assembly.
I find it patent from these provisions that the
Agreement was intended to have legal effect as a
contract only for the transitional period of a max
imum of two years (unless extended by the consent
of all the parties). After the transitional period
"nothing in the Agreement shall be construed as
imposing any obligation upon Quebec or Canada
to continue any or all of the Transitional Measures
or any other obligation or undertaking referred to
elsewhere in the Agreement."
In other words, apart from these transitional
measures, the Agreement was not intended to have
any effect as a contract. What was intended was
that it should be legislated into effect: "the Agree
ment shall come into force and shall bind the
Parties on the date when both the federal and
provincial laws respectively approving, giving
effect to and declaring valid the Agreement are in
force" (emphasis added). In other words it is to be
a legislated contract, one that derives all of its
legal force even as a contract from the laws which
are to give it effect and validity. There is, more
over, no confusion of jurisdiction, since both
Canada and Quebec are to legislate "subject to ...
the legislative jurisdiction of Parliament and the
National Assembly." It matters not whether the
validating legislation is a single Act by each of
Parliament and the National Assembly or a con-
geries of legislation.
The legislative rather than purely contractual
character of the Agreement is also evident from
sections 22 and 23, the provisions which are of
direct relevance in this case. In paragraph 22.2.4
the guiding principles for the governments and
their agencies include not only those relating to
native people or lands, but all people and all lands
(Agreement, at pages 311-312):
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:
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;
Moreover, paragraph 22.5.1 (Agreement, at
page 317) provides that "[a]ll developments listed
in Schedule 1 shall automatically be subject to the
impact assessment and review procedures provided
for herein." Schedule 1 to section 22 sets out such
developments in general terms clearly intended to
be applicable to third party projects (Agreement,
at pages 327-328):
Future Developments Automatically Subject to Assessment
1. All New Major Mining Operations Excluding Explorations.
2. Siting and Operation of Major Sand and Gravel Pits and of
Quarries.
3. Energy Production:
a) Hydro-electric power plants and their associated works.
b) Storage and water supply reservoirs.
c) Transmission lines of 75 kilovolts and above.
d) Extraction and processing of energy yielding materials.
e) Fossil-fuel fired power generating plants above three
thousand (3,000) kilowatts.
4. Forestry and Agriculture:
a) Major access roads built for extraction of forest products.
b) Pulp and paper mills or other forestry plants.
c) In general, any significant change in land use substantially
affecting more than 25 square miles.
5. Community and Municipal Services:
a) new major sewage and waste water collection and disposal
systems.
b) solid waste collection and disposal, including land fill and
incineration.
c) proposals for parks, wilderness areas, ecological reserves
or other similar land classifications.
d) new outfitting facilities for more than thirty (30) persons,
including networks of outpost camps.
e) new communities or significant expansion of existing
communities.
6. Transportation:
a) access roads to and near Native communities.
b) port and harbour facilities.
c) airports.
d) railroads.
e) road infrastructure for new development.
f) pipelines.
g) dredging operations for navigation improvements.
There is a companion list in Schedule 2 to
section 22 for future development (again set forth
in general categories) which is exempt from the
requirement for impact assessment.
The scheme of section 23 is similar in its rele
vant aspects.
When, with this understanding of the Agree
ment, we now approach the federal Act, it
becomes obvious that Parliament's intention was,
not to incorporate the Agreement as a part of the
law in the narrow sense, but more broadly to give
it its very legal definition, effect and validity.
Following a recital that "it is expedient that Par
liament approve, give effect to and declare valid
the Agreement," section 3 of the Act makes the
Agreement law:
3. (1) The Agreement is hereby approved, given effect and
declared valid.
(2) Upon the extinguishment of the native claims, rights, title
and interests referred to in subsection (3), the beneficiaries
under the Agreement shall have the rights, privileges and
benefits set out in the Agreement.
(3) All native claims, rights, title and interests, whatever
they may be, in and to the Territory, of all Indians and all
Inuit, wherever they may be, are hereby extinguished, but
nothing in this Act prejudices the rights of such persons as
Canadian citizens and they shall continue to be entitled to all of
the rights and benefits of all other citizens as well as to those
resulting from the Indian Act, where applicable, and from other
legislation applicable to them from time to time.
(4) The total amount mentioned in subsection 25.3 of the
Agreement as monetary compensation and all the other sums
mentioned in that subsection are exempt from taxation in the
manner and to the extent set out in that subsection.
(5) The Governor in Council may make such regulations as
are necessary for the purpose of carrying out the Agreement or
for giving effect to any of the provisions thereof.
As I see it, section 3 of the federal Act is thus of
a piece with the Agreement. It does by law precise
ly what the Agreement calls for and requires, as
the condition of its own validity.
I cannot accept the argument of the intervenors
that subsections (3) and (4) would be superfluous
if the Agreement itself were to have the force of
law. The thrust of subsection 3(3) is not only to
extinguish rights but also to continue rights and
subsection 3(4) is necessary legislation for taxation
purposes. Indeed, the form of paragraph 25.3.1 of
the Agreement itself calls for legislative implemen
tation (Agreement, at page 400):
25.3.1 The Governments of Canada and Québec shall recom
mend to the Parliament of Canada and the Québec
National Assembly, respectively, as part of the pro
posed legislation that will incorporate and confirm the
provisions of the Agreement, that the ... monetary
compensation ... to be paid to the James Bay Crees
and the Inuit of Québec, shall be exempt from all
forms of taxation in respect of the said capital amounts
It is also revelatory that this clause of the Agree
ment refers to the legislation as "incorporating"
the provisions of the Agreement.
Sections 22 and 23 of the Agreement authorize
the appointments of both federal and provincial
administrators. By sub-paragraph 22.1.1 (ii)
Administrator is said to mean [at page 310] "in
the case of matters involving federal jurisdiction,
any person or persons authorized from time to
time by the Governor in Councils to exercise func
tions described in this Section." Similarly para
graph 23.1.2 reads [at page 335]:
23.1.2 In the case of matters respecting federal jurisdiction,
"Administrator" or "Federal Administrator" means
the Federal Minister of Environment or any other
person or persons authorized from time to time by the
Governor in Council to exercise functions described in
this Section;
Order in Council P.C. 1988-1800, set out above,
appointing Robinson the present Administrator "in
the case of matters involving federal jurisdiction",
was thus nominally made, as is stated in the Order
in Council, "pursuant to sub-paragraph 22.1.1(iî)
and paragraph 23.1.2" of the Agreement.
The intervenors argued that, because the Order
in Council was not a regulation made under sub
section 3(5) of the federal Act, and because it
specified sections 22 and 23 of the Agreement as
its authority, Robinson was not a "federal board,
commission or other tribunal." In fact, it was said,
the Order in Council could not be a regulation
since it lacked the generality and impersonality of
a legislative norm and was merely an individual
decision. The respondents, on the other hand, con
tended that Robinson's appointment was made not
by the Government of Canada as a contracting
party under the Agreement but by the Governor in
Council, acting legislatively. They also argued
that, in any event, his document of appointment is
not the same as his source of jurisdiction or power.
Section 2 of the Federal Court Act thus requires,
not that he be appointed by or under an Act of
Parliament, but that the jurisdiction or powers
exercised by him be conferred on him by or under
an Act of Parliament. I find this alternative
persuasive.
Both sides freely cited the Statutory Instru
ments Act, R.S.C., 1985, c. S-22 and the Interpre
tation Act, R.S.C., 1985, c. I-21. In my opinion it
does not matter whether or not P.C. 1988-1800 is
S The French text of the Agreement reads «par le lieutenant-
governeur en conseil», but the fact that sub -para. 22.1.1(i) has
already dealt with the Administrator "in the case of matters
respecting provincial jurisdiction," as well as the rest of the
context (e.g. the use of "Administrator" in para. 22.6.5) indi
cate that the English text is the correct one.
a regulation as defined in these Acts. All that
matters is the source of the Administrator's power,
once appointed. Hence, regardless of the charac
terization of the Order in Council in question, the
Administrator is a "federal board" for the pur
poses of sections 2 and 18 of the Federal Court
Act in that his powers under the Agreement are
conferred on him by the federal Act rather than by
the Agreement itself. In this respect his powers are
of a piece with everything else in the Agreement:
they derive from the federal Act.
III
The intervenors maintained that three authorities
make it clear that the Administrator cannot be "a
federal board": Association of Radio and Televi
sion Employees of Canada (CUPE-CLC) v.
Canadian Broadcasting Corporation, [1975] 1
S.C.R. 118; Rogers v. National Harbours Board,
[1979] 1 F.C. 90 (C.A.); Southam Inc. v. Canada
(Attorney General), [1990] 3 F.C. 465 (C.A.). In
my view all are distinguishable on the facts.
In the Association case, where the issue con
cerned an award made by a board of arbitration
appointed under a collective agreement, Laskin J.
(as he then was), on this point speaking for the
Court, said (at page 134):
I cannot regard the bare direction [in the Industrial Relations
and Disputes Investigation Act, R.S.C. 1952, c. 152, s. 19] for
a provision for final settlement of all differences as to the
meaning or violation of the terms of a collective agreement as
bringing any instrument for such settlement, be it a board of
arbitration as in this case or some other agency, within the
category of the public tribunals which are envisaged by the
definition in s. 2(g).
The relationship between the Industrial Relations
and Disputes Investigation Act [R.S.C. 1952, c.
152] and the particular collective agreement under
which the board of arbitration was mandated was
obviously very different from that between the
federal Act and the Agreement in the case at bar,
possessing none of the intimate linkage outlined
above.
Rogers was concerned with the relationship be
tween a collective agreement and the Canada
Labour Code, R.S.C. 1970, c. L-1 (the successor
legislation to the Industrial Relations and Dis
putes Investigation Act), the issue being the
reviewability of a decision of a police officer acting
under a collective agreement. The result was the
same as in the Association case, and the case is
distinguishable for the same reasons.
Southam had to do with the status of the Senate
and a Senate Committee as "a federal board." In
holding that they did not meet that definition,
Iacobucci C.J. wrote for this Court (at pages
479-480):
However, in my view, the words "conferred by or under an
Act of Parliament" of Canada in section 2 mean that the Act of
Parliament has to be the source of the jurisdiction or powers
which are being conferred. The privileges, immunities and
powers of the Senate are conferred by the Constitution, not by
a statute, although the latter defines or elaborates upon the
privileges, immunities and powers. Such a statute then is the
manifestation of Senate privileges but it is not its source; the
source is section 18 of the Constitution Act, 1867.
In the normal case of a federal board, commission or tri
bunal, it is true to say that such a body emanates from the
exercise of the legislative power of the federal Government
under section 91 of the Constitution Act, 1867, but in such a
case it is the federal statute which confers the power or
jurisdiction on the federal board, commission or tribunal and
not the general legislative competence under section 91. Section
18 of the Constitution Act, 1867 by its terms confers the
jurisdiction directly on the Senate, and consequently the Senate
or one of its committees is not a federal board, etc., under the
definition in section 2 of the Federal Court Act. Therefore the
Trial Division does not have jurisdiction in this action under
section 18 of the Federal Court Act; thus the first condition of
ITO is not met as there has been no statutory grant of
jurisdiction by the federal Parliament.
In my view, Southam actually supports the alter
native position of the respondents, the analogy
being between subsection 3(1) of the federal Act
and section 18 of the Constitution Act, 1867 [30
& 31 Vict., c. 3 (U.K.) (as am. by Canada Act
1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1) [R.S.C., 1985, Appendix
II, No. 5]] as the true source of authority in their
respective cases, even though the manifestation of
that authority may be found elsewhere, as, e.g., in
the Agreement.
Both sides drew comfort from Coon Come v.
Québec Hydro-Electric Commission, No. 500-05-
004330-906 decided on June 28, 1990, by Hélè-
ne LeBel J., and, on appeal, Canada (Attorney
General) c. Coon Come, [1991] R.J.Q. 922 (C.A.),
per Louis LeBel J.A. This was, like the case at
bar, an action brought by the Cree Regional Au
thority and allies against Québec Hydro and the
federal and provincial Attorneys General for a
permanent injunction to prevent the development
of the Great Whale River Hydroelectric Project.
The Attorney General of Canada made a declina-
tory exception under section 163 of the Quebec
Code of Civil Procedure [R.S.Q. 1977, c. C-25] on
the ground of Federal Court jurisdiction. Both the
Trial Court and the Court of Appeal held that the
Superior Court of Quebec had jurisdiction except
with respect to paragraph I of the declaratory
relief sought, which read as follows:
I) Defendant the Attorney-General of Canada be declared to
be:
1) in breach of Sections 22 and 23 of the James Bay and
Northern Quebec Agreement and the Environmental Assess
ment and Review Process Guidelines Order in regard to the
proposed Great Whale River Hydroelectric Project;
2) in breach of his fiduciary obligations to protect and
preserve the rights and interests of Plaintiffs in respect to the
proposed Great Whale River Hydroelectric Project;
3) in breach of the Canadian Environmental Protection Act
in respect to the proposed Great Whale River Hydroelectric
Project.
In upholding the decision of the Trial Judge, Louis
LeBel IA. took the view that she was right to
conclude that paragraph I did not fall under the
jurisdiction of the Superior Court of Quebec since
overall it concerned the putting into effect of
federal environmental criteria and not their consti
tutionality. The Quebec Court of Appeal may have
appeared to the intervenors to support their case in
its assertion of the breadth of the jurisdiction of
the Quebec courts over constitutional questions,
including those arising out of section 35 of the
Constitution Act, 1982 [Schedule B, Canada Act,
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix
II, No. 44]], but in particular reference to the
subject-matter of paragraph I, which is almost
identical with the cause of action in the case at
bar, it affirmed the jurisdiction of the Federal
Court. The only differences between Coon Come
and the case at bar are that paragraph I of the
claim requests declaratory relief rather than a
mandamus or an injunction, and that the breaches
of obligations alleged are more inclusive in Coon
Come.
The Quebec Court of Appeal, therefore, effec
tively came to the same conclusion with respect to
the matter here in issue as the Trial Judge in the
case at bar. Authority, as well as reason, thus leads
to the conclusion that the federal Administrator is
a "federal board, commission, or other tribunal"
under sections 18 and 2 of the Federal Court Act,
and that the Trial Division has jurisdiction in this
matter.
IV
Since I find Trial Division jurisdiction to exist on
the basis of sections 18 and 2 of the Federal Court
Act, I do not need to consider the alternative basis
of jurisdiction approved by the Trial Judge in
section 44 of that Act, nor his "lacuna" consider
ation, which was undoubtedly related to section 23
or 25 of that Act.
I have also not found it necessary to rely on
subsection 91(24) of the Constitution Act, 1867
("Indians, and Lands reserved for the Indians") or
section 35 of the Constitution Act, 1982, as
amended ("existing aboriginal and treaty rights of
the aboriginal peoples of Canada"), even though a
unanimous Supreme Court held recently in Rob-
erts v. Canada, [1989] 1 S.C.R. 322 (per Wilson
J.) that the law of aboriginal title is a law of
Canada as federal common law.
In the result, I would dismiss the appeal with
costs.
HUGESSEN J.A.: I concur.
DÉCARY J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.