By Julie Deslile with contribution by Alana-Kateri La Rosa Dancoste
In 1978 the Quebec National Assembly founded the Bureau d’audiences publiques sur l’environnement (BAPE) ‘’to enlighten government decision-making in a sustainable development perspective, which encompasses the biophysical, social and economic aspects” . BAPE is an independent public consultation agency with no decision-making power reporting to the Minister of Sustainable Development, Environment and the Fight Against Climate Change. It consists of six full time members, including a president and a vice-president, as well as a list of part-time members called upon, when needed, to form commissions to satisfy the inquiries of the Minister. All members are appointments by the government and have the powers and immunity of commissioners under An Act Respecting Public Inquiry Commissions in which they are required to be impartial and equitable. The government is required to consult with the public when evaluating projects having a major impact of the environment; that is when BAPE comes in. The Minister first mandates BAPE to inform and consult the population. Afterwards, if requested to the Minister, BAPE can get the mandate to have a public hearing. Mandates for investigations, and, further on, mediations can also follow as to fully inform and implicate the citizens in order for the Ministry of Environment to approve, or not, these projects.
The James Bay and Northern Quebec Agreement (JBNQA) was signed in 1975 between the Government of Quebec, Hydro Quebec, the Société de l’énergie de la Baie James, the Société de développement de la Baie-James, the Grand Council of the Crees of Quebecand the Norhtern Quebec Inuit Association. One of the guiding principles of the JBNQA is that, “Québec needs to use the resources of its territory, all its territory, for the benefit of all its people”, and that the Quebec Government, “must recognize the needs of the Native peoples, the Cree and the Inuit, who have a different culture and a different way of life from those of other peoples of Québec” (JBNQA, 9). The agreement defined specific lands regimes for the Inuit and the Cree, where they have exclusive rights for hunting, fishing and trapping. Sections 22 and 23 of the JBNQA establish environmental and social assessment regimes applicable to development projects proposed for Nunavik and south of the 55th parallel in Eeyou Istchee (see details in Section 22 and 23 of JBNQA).
Twenty-two years after the creation of BAPE; in 2000, the Chiefs of AFNQL (Assembly of the First Nations of Quebec and Labrador) founded the FNQLSDI: the First Nations of Quebec and Labrador Sustainable Developments Institute to “offer First Nations a dynamic service hub, supporting their actions towards maintaining healthy territories and resources, developing sustainable communities and promoting the recognition of their rights” . The FNQLDSI is a commission acting as a technical advisor to the AFNQL for issues relating mostly to the Sustainable Development Strategy for First Nations of Quebec and Labrador, a document first published in 1997 and updated in 2006. Amongst many things it provides information to First Nations on issues related to sustainable development, facilitates partnerships and dialogue between indigenous and non-indigenous organizations and promotes recognition of First Nations rights and issues by making recommendations to the government and other organizations that may have an impact on these issues.
The FNQLSDI, although a commission as well, does not have the commissioners powers the BAPE has and thus gets most of its information from BAPE, just like the public. According to the Canada-Quebec Agreement on Environmental Assessment Cooperation (2010): “Where a project subject to a cooperative environmental assessment has the potential to cause adverse environmental effects on Aboriginal communities, the Parties will notify any potentially affected communities so that they may participate in the cooperative environmental assessment, as provided for by the Canadian Environmental Assessment Act and the Quebec Environment Quality Act, and their respective regulations”. The Quebec government is to include the First Nations communities in the whole process of environmental assessment when they are concerned, but since the BAPE is only mandated by the minister much later in the process of the assessment, and is the only one out of the two organizations with the power to gather the necessary information; the FNQLSDI, even if meant to be working in parallel with the BAPE, seems to depend on BAPE and be delayed by the process put in place by the Quebec government.
For these reasons First Nations in Quebec that have not finalized land claims agreements, such as the James Bay and Northern Quebec Agreement (JBNQA), argue that the provincial EIA regime does not guarantee an efficient consultation and accommodation process that is in line with the constitutional responsibilities towards Aboriginal people:
This BAPE process is a mere public process and does not constitute consultation and accommodation at law. Our attendance here is completely without prejudice to our rights to proper consultation and accommodation. The Government of Quebec has a clear legal obligation in accordance with its legal duty of honour to consult and accommodate Mi’gmaq Rights, Title and Treaties, including in relation to these two projects. It has not done so, even though the Québec Government has developed an interim guide for consulting aboriginal communities.
Chief Claude Jeannotte, Migmawei Mawiomi Assembly
(Brief presented during public hearings for the Gros-Morne and Montagne Sèche wind power project, 2008, p. 3)
Assembly of the First Nations of Quebec and Labrador
Bureau d’audiences publiques sur l’environnement (BAPE)
BAPE. Les enjeux de la filière uranifère au Québec, October 2014:
First Nations of Quebec and Labrador Sustainable Development Institute. (2006). First Nations of Quebec and Labrador Sustainable Development Strategy.
Canadian Environmental Assessment Agency