Environmental and social protection regime

environmentIn keeping with its mandate to oversee the administration of the environmental and social protection regime, the JBACE must ensure the conditions required for the various stakeholders to do their work.

a) Application of the regime to Category I lands

The JBNQA provides for a local environment administrator in each of the Cree communities. This person approves development projects on Category I lands based on the recommendations of the review body. To fulfil this responsibility, the local environment administrators require adequate technical and financial resources. That is why the JBACE supported a request from the Crees to that effect in 1979.

The following year, the Committee applauded the creation of a volunteer training program for local environment administrators. In 1983, participants in the program received remuneration, paid by Environment Canada and the Ministère de l’Environnement du Québec. To further facilitate recruitment, the JBACE recommended making the position of local environment administrator a full-time position.

While this was going on, development projects on Category I lands, such as wastewater treatment systems, were not submitted to impact assessment and review. In 1984, the JBACE was concerned about problems in the systems’ operation and the attendant impact on public health.

In 2004, the JBACE formed a subcommittee to examine shortcomings in the federal review process as applied in Cree communities (Category I lands). In 2006, the JBACE made recommendations aimed at enhancing environmental management within the communities; among other things, it called on the CRA and governments to systematically provide technical support to local environment managers.

The role of local environment administrators was amended under the 2008 Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee. Pursuant to this agreement, the administrator responsible for the protection of the environment is designated by the Cree Regional Authority. The administrator makes the decision to authorize or not projects on Category I lands, based on the recommendations of the review body.

b) The evaluating and review committees

The Evaluating Committee (COMEV), the Review Committee (COMEX) and the federal Review Panel (COFEX-South) play an important role in the Section 22 regime. COMEV is responsible for making a recommendation to the administrator as to whether or not a project not on the lists of developments automatically subject to and exempt from impact assessment and review should undergo the procedure. COMEV also issues directives for the impact statement to be prepared for projects subject to the procedure. COMEX and COFEX-South, depending on whether the project falls within provincial or federal jurisdiction respectively, studies the impact statement and recommends whether the project should be authorized or not.

The JBACE attempted to strengthen ties with these committees to facilitate information sharing. In 1984, during a meeting with the JBACE, the respective chairs of the three evaluating and review bodies pledged to submit quarterly activity reports.

Operation of COFEX-South proved problematic owing to its ad hoc status. In 1979, the JBACE stressed the importance of making the Review Panel a standing committee. One of the problems encountered was the Review Panel’s occasional failure to apply the federal assessment and review process, as required by the JBNQA: in 1980-1981, the Federal Administrator referred the review of the impact statement for the Chibougamau airport project to his Québec counterpart, even though air transportation falls under federal jurisdiction. At the end of the process, COMEX recommended that the project be authorized, despite the opposition of its members appointed by the Cree Regional Authority. Similarly, in 1996 COFEX-South refused to assess the impacts of a proposed sawmill on Category IA lands after its federal government members claimed that forest management is a matter of provincial jurisdiction. The federal process was not applied to the Great Whale project either (see section 3).

c) Modernization of the Section 22 regime

The JBACE is responsible for making sure the provisions of Section 22 of the JBNQA and its schedules are up to date. The JBNQA provides for the review of schedules 1, 2 and 3 of Section 22 every five years. A single amendment providing for the taking into account of the Agreement Concerning a New Relationship Between Québec and the Crees (ANRQC - 2002) has been approved to date.

In 1984, COMEX proposed changes to the lists of development projects automatically subject to and exempt from impact assessment and review (schedules 1 and 2). Before submitting the proposed changes to the JBNQA signatories concerned, the JBACE requested amendments with regard to forest management activities and infrastructures. 

Several attempts to update Section 22 were made in the 1990s. In 1994, Makivik Corporation, the Naskapi Landholding Corporation and the CRA jointly proposed that large-scale caribou hunting projects be submitted to impact assessment and review: due to a lack of government support, nothing became of the proposal.

In 1996, the JBACE solicited the regime stakeholders’ concerns and views with regard to the review of Section 22. This exercise revealed the unworkable nature of the examination of proposed laws and regulations: this process is supposed to ensure that the provisions of laws and regulations are consistent with those of Section 22. In the absence of a legislative framework, it was entirely up to the evaluating and review committees to ensure development projects did not conflict with the Cree environment and society. Due to a lack of financial support, this process was limited to making observations.

In 2006, the JBACE revived the project by first hiring an intern to collect and compile useful data for the review of schedules 1 and 2 of Section 22. A consultant was hired to make proposals in this regard. During a workshop held in April 2007, members of the JBACE, COMEV, COMEX and COFEX-South reached a consensus with regard to the vast majority of project categories, i.e. those that should be subject to and those that should be exempt from impact assessment and review. In 2008, the JBACE sent its recommendations to the signatory parties to Section 22. Discussions on the implementation of the JBACE’s recommendations are ongoing.

d) Improving without amending

The JBACE supports any initiative that will improve the functioning of the regime without having to amend Section 22. In 1982, COMEV proposed that recommendations to exempt projects from impact assessment and review include conditions so that proponents would not have to prepare an impact statement—a costly process that serves the sole purpose of ensuring compliance with a regulation, directive or recommendation. In return, proponents would have to incorporate the conditions into their project description.

In 1986, the CRA recommended establishing a system of environmental permits for Category IA lands, similar to the one provided for in theEnvironment Quality Act, to make it easier for local environment administrators to approve projects that will not have a significant impact. The JBACE endorsed the idea, stressing the importance of monitoring and follow-up once a permit has been granted. 

e) The members' role

At times, the role of JBACE members can be ambiguous. For example, as representatives of their respective governments, the members for Québec and Canada have sometimes had trouble speaking for themselves on issues. In 1990, however, the chairman, who had been appointed by the CRA, underlined the fact that the Québec and federal government representatives were serving in an expert capacity and were no longer bound to uphold their governments’ public positions on matters.

Two years later, the chairman pointed out a pernicious effect of the members’ independence, namely, that the members for Québec and Canada no longer had access to their government’s information and resources relating to the issues dealt with by the JBACE. Consequently, they no longer could obtain information upstream or influence the formulation of laws and regulations that would affect the environment or social milieu in the James Bay Territory.

In fact, more and more, the government representatives were being appointed from outside the public service. The Government of Canada tended to hire consultants, while the Québec members volunteered to sit on the Committee. In 1997, with all of the Québec members being volunteers, the JBACE asked that they be remunerated: the inequality of means among the parties hindered the Committee as a whole.

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