Legal and Administrative Framework
The environmental and social protection regime that applies in the James Bay region is set out in Section 22 of the James Bay and Northern Quebec Agreement (JBNQA). This regime provides for:
“an environmental and social impact assessment and review procedure established to minimize the environmental and social impact of development when negative on the Native people and the wildlife resources of the Territory” (para. 22.2.2 b).
To this end, it established four committees: the James Bay Advisory Committee on the Environment (JBACE), the Evaluating Committee (COMEV), the Environmental and Social Impact Review Committee (the Review Committee – COMEX) and the federal Review Panel (COFEX).
The JBACE is responsible for studying and monitoring the administration and management of this regime, and is consulted for the development of laws, regulations and policies related to social and environmental protection.
The social and environmental assessment of projects falling under Cree or Quebec jurisdiction is the responsibility of the Evaluating Committee (COMEV) and the Review Committee (COMEX), while assessment of projects under federal jurisdiction is divided between the Evaluating Committee and COFEX. In both cases, the Evaluating Committee decides whether or not a project is subject to the assessment procedure, and the scope of the impact study required. Then, when the impact study has been received, the Review Committee and/or COFEX takes over.
Finally, the Review Committee reviews projects that have already been authorized if they are modified during their construction or operating phases. The Review Committee also reviews the monitoring reports produced by the project proponents.
The Review Committee – COMEX
Subsection 22.6.1 of the JBNQA created the Review Committee and set out its composition, as follows:
“An Environmental and Social Impact Review Committee (hereinafter referred to as “the Review Committee”) is established which shall be the review body respecting development projects in the Territory involving provincial jurisdiction.
The Review Committee shall have five (5) members. Quebec shall appoint three (3) members and the Cree Regional Authority (now Cree Nation Government) shall appoint two (2) members. The Chairman shall be appointed by the Lieutenant-Governor in Council from among the members appointed by the Provincial Government. The remuneration of a member and his expenses shall be paid for by the body that appoints such a member. However, the expenses of the Cree representatives shall be part of the costs of the secretariat.” (subs. 22.6.1)
The JBNQA also states that the Review Committee “shall be provided with an adequate staff to fulfil its functions” and that “such staff shall be maintained and funded by Quebec” (subs. 22.6.3). Thus, the Ministère de l’Environnement et de la Lutte contre les changements climatiques (MELCC) ensures the operation of the Review Committee Secretariat and assumes all costs connected to it. It also allocates some of its own staff for the analysis of projects under review.
Territory and Jurisdiction
The territory covered by the Review Committee’s mandate is defined in subsection 22.1.6 as being the area in Quebec governed by the JBNQA that is situated south of the 55th parallel and west of the 69th meridian of longitude. It also includes the lands Whapmagoostui, a Cree community just north of the 55th parallel. The territorial regime established under the JBNQA divides these lands into three categories. Category I lands are for the exclusive use of the Crees and are located near their communities. Category II lands are public lands where the Crees have the exclusive rights to hunting, fishing and trapping. Finally, the lands in Category III are public lands where aboriginals have the right to hunt, fish and trap without a permit, and without catch limits at any time, subject to the principle of conservation.
The Review Committee forwards its recommendations to the Administrator responsible for Section 22 of the JBNQA. It is the Administrator’s role to decide whether or not to authorize a project, and if so, what conditions must be satisfied. If the Administrator is unwilling or unable to accept any recommendations of the Review Committee, or wishes to modify its recommendations, he must consult with the Review Committee to explain his position. (JBNQA, subs. 22.6.17)
The Agreement provides for the appointment of three Administrators: one for matters that fall under the jurisdiction of Quebec, one for matters in federal jurisdiction, and one appointed by the Cree Nation for development projects located on Category I lands.
The current Administrator appointed by the Quebec government is Marc Croteau, Deputy Minister of the MELCC, while the appointee for the Cree Nation is Isaac Voyageur.
From the JBNQA to the Environment Quality Act
The James Bay and Northern Quebec Agreement (JBNQA) constitutes a social and economic pact between the Government of Québec, Hydro-Québec, the James Bay Energy Corporation and the James Bay Development Corporation, on the one hand, and the Grand Council of the Crees (of Quebec), representing the Crees of James Bay, and the Northern Quebec Inuit Association, representing the Inuit of Northern Quebec on the other. The Government of Canada is also a signatory to the Agreement. Signed on November 11, 1975, the JBNQA was endorsed by the Crees and the Inuit after referendums in the aboriginal communities.
The JBNQA provides that Quebec must take the necessary steps to adopt the appropriate laws and regulations to make Section 22 of the Agreement binding. Thus, chapter II of Title II of the Environment Quality Act (EQA) sets out the particular provisions for environmental assessment applicable to James Bay, in accordance with the provisions in the Agreement. Section 148 of the EQA confirms the creation of the Review Committee.
The social and environmental impact assessment and review procedure for the James Bay region is set out in Sections 153 through 167. Sections 160 and following describe the mandate of the Review Committee, as well as the nature of the projects that are subject to the procedure.
It is worth noting that in the case of any discrepancy in the interpretation of the texts, it is the Agreement that prevails.
Finally, in accordance with Title II of the Environment Quality Act, the government of Quebec adopted the Regulation respecting the environmental and social impact assessment and review procedure applicable to the territory of James Bay and Northern Québec. Taking into account Section 22 of the JBNQA, this regulation sets out the suggested objectives, substance and content of the impact studies project proponents must produce. For greater detail on the procedure required under the JBNQA and the EQA, please visit the section titled “Procedure”.