2014 QCCA 1455, 2014 QCCA 1455

Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC MONTRÉAL REGISTRY Nos. 500-09-022212-112 and 500-09-022213-110 (500-17-064940-110) DATE: August 14, 2014 CORAM: THE HONOURABLE PIERRE J. DALPHOND J.A. JULIE DUTIL J.A. MARIE-FRANCE BICH J.A. 500-09-022212-112 MAKIVIK CORPORATION APPELLANT – Plaintiff v.

ATTORNEY GENERAL OF QUÉBEC NATHALIE NORMANDEAU SERGE SIMARD RESPONDENTS – Defendants and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Impleaded party ______________________________________________________________________ 500-09-022213-110 NASKAPI NATION OF KAWAWACHIKAMACH NASKAPI LANDHOLDING CORPORATION OF SCHEFFERVILLE GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE) CREE REGIONAL AUTHORITY APPELLANTS – Plaintiffs v.

ATTORNEY GENERAL OF QUÉBEC NATHALIE NORMANDEAU SERGE SIMARD RESPONDENTS – Defendants and MAKIVIK CORPORATION IMPLEADED PARTY – Plaintiff and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Impleaded party RECTIFIED JUDGMENT* * This judgment has been signed in French and English. Both versions are official. [ 1 ] A clerical error was inadvertently made in paragraph [5] of the judgment and paragraph [109] of the reasons of Dalphond J.A. The dates should have read as follows: “at November 15, 2011 instead of December 1, 2011”.

[ 2 ] Accordingly, the COURT RECTIFIES the judgment of August 4, 2014 and SUBSTITUTES the following paragraph for paragraph [5] of the judgment: [ 5 ] ALLOWS the motion introductive of suit in order to declare that the Minister violated the rights of the Native people under the James Bay Agreement by setting, in his order AM 2011-026, the date of the opening of the hunting season for the caribou of the Leaf River herd at November 15, 2011 instead of December 1, 2011, and by allowing the hunting of the caribou of the George River herd in 2011; [ 3 ] The same correction is made to paragraph [109] of Dalphond J.A.’s reasons.

PIERRE J. DALPHOND J.A. JULIE DUTIL J.A. MARIE-FRANCE BICH J.A. Mtre. David Schulze DIONNE SCHULZE For Makivik Corporation Mtre. Éric Dufour Mtre. Daniel Benghozi BERNARD, ROY For the respondents Mtre. Josianne Philippe (absent) JUSTICE CANADA For the Attorney General du Canada Mtre. Robert A. Pratt For the Naskapi Nation of Kawawachikamach and the Naskapi Landholding Corporation of Schefferville Mtre. Jean-Sébastien Clément Mtre.

Catherine Fagan GOWLING LAFLEUR HENDERSON For the Grand Council of the Crees (Eeyou Istchee) and the Cree Regional Authority Date of hearing: November 6, 2013 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC MONTRÉAL REGISTRY Nos. 500-09-022212-112 and 500-09-022213-110 (500-17-064940-110) DATE: August 4, 2014 CORAM: THE HONOURABLE PIERRE J. DALPHOND J.A. JULIE DUTIL J.A. MARIE-FRANCE BICH J.A. 500-09-022212-112 MAKIVIK CORPORATION APPELLANT – Plaintiff v.

ATTORNEY GENERAL OF QUÉBEC NATHALIE NORMANDEAU SERGE SIMARD RESPONDENTS – Defendants and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Impleaded party ______________________________________________________________________ 500-09-022213-110 NASKAPI NATION OF KAWAWACHIKAMACH NASKAPI LANDHOLDING CORPORATION OF SCHEFFERVILLE GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE) CREE REGIONAL AUTHORITY APPELLANTS – Plaintiffs v.

ATTORNEY GENERAL OF QUÉBEC NATHALIE NORMANDEAU SERGE SIMARD RESPONDENTS – Defendants and MAKIVIK CORPORATION IMPLEADED PARTY – Plaintiff and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Impleaded party JUDGMENT* * This judgment has been signed in French and English. Both versions are official. [1] The appellants are appealing from a judgment of the Superior Court, District of Montréal (the Honourable Sophie Picard J.), concluding that amendments to the Regulation respecting hunting , CQLR, c.

C-61.1, r.12, are valid, despite breaches of the duty to consult provided for in the James Bay and Northern Québec Agreement , which were considered purely procedural irregularities. [2] For the reasons of Dalphond J.A., with which Dutil and Bich JJ.A. concur, THE COURT : [3] ALLOWS the appeals; [ 4 ] QUASHES the conclusions of the judgment of the Superior Court and, ruling anew : [ 5 ] ALLOWS the motion introductive of suit in order to declare that the Minister violated the rights of the Aboriginal peoples under the James Bay Agreement by setting, in his order AM 2011-026, the date of the opening of the hunting season for the caribou of the Leaf River herd at October 15, 2011 instead of November 1, 2011, and by allowing the hunting of the caribou of the George River herd in 2011; [ 6 ] RESERVES the rights of the Aboriginal peoples concerned to claim compensation for the prejudice sustained because of these violations; [ 7 ] THE WHOLE , with costs in both appeal and first instance.

PIERRE J. DALPHOND J.A. JULIE DUTIL J.A. MARIE-FRANCE BICH J.A. Mtre. David Schulze DIONNE SCHULZE For Makivik Corporation Mtre. Éric Dufour Mtre. Daniel Benghozi BERNARD, ROY For the respondents Mtre. Josianne Philippe (absent) JUSTICE CANADA For the Attorney General of Canada Mtre. Robert A. Pratt For the Naskapi Nation of Kawachikamach and the Naskapi Landholding Corporation of Schefferville Mtre. Jean-Sébastien Clément Mtre.

Catherine Fagan GOWLING LAFLEUR HENDERSON For the Grand Council of the Crees (Eeyou Istchee) and the Cree Regional Authority Date of hearing: November 6, 2013 500-09-022212-112 and 500-09-022213-110 1 REASONS OF DALPHOND J.A. [ 8 ] The appellants are appealing from a judgment of the Superior Court that concluded that amendments to the Regulation respecting hunting , CQLR, c.

C-61.1, r.12 (the Regulation), are valid despite breaches of the duty to consult provided for in the James Bay and Northern Québec Agreement (the Agreement), which were considered purely procedural irregularities. [ 9 ] Further to the analysis featured below, I am of the view that the appeal should be allowed, that it should be declared that the Minister failed to fulfil his duties pursuant to the Agreement and, as a remedy, that the rights of the Aboriginal peoples concerned to claim compensation for the prejudice sustained, if any, should be reserved.

CONTEXT [ 10 ] The Inuit and Cree appellants (or their predecessors) signed the Agreement in 1975. The Naskapi appellants acceded to it in 1978 by signing the Northeastern Québec Agreement . [ 11 ] The Agreement governs the development and preservation of Northern Québec, as well as the social protection of the peoples living there.

The culmination of long and complex negotiations involving a number of Aboriginal peoples, the federal government and the provincial government, it contains no fewer than 33 sections, covering all aspects of the administration and development of the James Bay and New Québec territories, which are 410 000 square miles in area (the Territory), the whole with due regard for the Aboriginal peoples living there. [ 12 ]

Section 24 of the Agreement enacts a number of measures applicable to hunting, fishing and trapping in the Territory. To that end, it divides the lands in the Territory into three categories (para. 24.3.32): - Category I land: accounting for a small percentage of the Territory as a whole, this land is completely and exclusively controlled by the Aboriginal communities and is reserved for their exclusive use (self-determination); - Category II land: on this land, the Aboriginal peoples have the exclusive right to hunt and fish, including the right to authorize non- Natives to hunt and fish; and

- Category III land: this land is accessible to Aboriginal peoples and non-Natives, in accordance with the laws and regulations of Québec governing public land, but subject to the rights, conditions and restrictions established by the Agreement. [ 13 ]

Section 24 provides particularly for the creation of a Hunting, Fishing and Trapping Coordinating Committee, a specialized body responsible for reviewing, managing and, in certain cases, supervising and regulating the Hunting, Fishing and Trapping Regime (para. 24.4.1). The Committee is joint, as it is composed of representatives of the Aboriginal peoples (three Cree members, three Inuit members and two Naskapi members) and government representatives (four provincial members and four federal members) (para. 24.4.2, and para. 7 of Complementary Agreement No. 1).

When a decision concerns solely a matter under provincial jurisdiction, the members of the Québec government have two votes each and the federal representatives have no votes, and vice versa when the decision concerns solely a matter under federal jurisdiction (sub-paras. 24.4.4

a) and b)). In the case of a tie vote, the Chairman, appointed annually by each of the parties on an alternating basis, casts the deciding vote (paras. 24.4.5 and 24.4.12). [ 14 ] In 2010, the Caribou Management Plan for Northern Québec (2004-2010) ended with, as a backdrop, the observation that the Territory’s two caribou herds had experienced a major decline. [ 15 ] The first herd, called the George River herd, is found in the eastern part of the Territory, along the border with Labrador, to which it regularly migrates.

The herd numbered 74 000 in 2010, a little above its critical level, estimated to be 50 000, whereas it numbered 365 000 in 2001. The Naskapi, Innu and Inuit have always hunted the herd. [ 16 ] The second herd, called the Leaf River herd, is found in the western part of the Territory. The Crees and Inuit have hunted there since time immemorial. This herd numbered 650 000 in 2001 and, in 2010, it was feared that that number had significantly declined, although no precise figures were then available.

An aerial census conducted in the summer of 2011 estimated that the herd numbered about 330 000, a reduction of approximately 50% over 10 years. [ 17 ] Besides the decline of the herds, the condition of the killed caribou was generally not as good. [ 18 ] In the Territory are outfitting operations where non-Natives can engage in so-called sport hunting during the periods authorized by the Québec government, mainly in the western part.

All the outfitters are located on Category III lands. [ 19 ] From September 2010 to March 2011, the members of the Coordinating Committee discussed the measures to take regarding the caribou. Concerned with preserving a resource essential to their way of life, the Aboriginal representatives advocated, beginning in September 2010, the adoption of measures to conserve the caribou.

A resolution was adopted to that end by the Coordinating Committee in September 2010, with the Québec representatives abstaining. [ 20 ] On November 8, 2010, the Coordinating Committee set up a task force to recommend, in particular, transitional and long-term measures regarding sport hunting. [ 21 ] The group held meetings in November and December 2010. The outfitters warned them about any immediate reduction in sport hunting and asked to be advised in sufficient time.

As for the representatives of the Aboriginal peoples, they opted, in December 2010, for the complete closing of sport hunting, whereas the representatives of the Québec government preferred a reduction in that activity for non-Natives so as to minimize the economic consequences for the outfitters. [ 22 ] In a letter dated December 20, 2010, the department proposed the following measures to the Aboriginal representatives: - in the eastern sector of the Territory: a reduction of 50% in the number of permits to 450, a shorter hunting season from September 1 to October 1, 2011, and the complete closing of hunting for the 2012 season, until the herd had sufficiently recovered to authorize the resumption of sport hunting; - in the western sector of the Territory: a reduction of 25% in the number of permits (which had allowed the killing of approximately 12 000 caribou), a reduction of the hunting season from December 1, 2011 to January 15, 2012, a prohibition on the hunting of antlerless caribou during the winter season and a reassessment of the situation once the herd was inventoried.

The letter ended with a request for confirmation of the acceptance of the Aboriginal parties by noon the next day. [ 23 ] The Coordinating Committee met on December 21. The meeting appears to have been turbulent. [1] The Aboriginal representatives said they disagreed with the measure proposed because it was insufficient in their opinion, and they demanded a vote.

The representatives of the Québec government refused to vote and said they wanted to continue the discussions. [ 24 ] The discussions continued with proposals and counter-proposals being exchanged until the next meeting of the Coordinating Committee, set for February 24, 2011. [ 25 ] On February 23, 2011, the day before the decisive meeting, failing a commitment by Québec to immediately impose a moratorium on any sport hunting in the eastern part of the Territory, the Aboriginal peoples sent the federal Department of the Environment a request that its representatives take

part in the vote on the contingency measures, alleging that the issue was within federal jurisdiction because of the migration patterns of the George River herd between Northern Québec and Labrador. The letter indicated that, if the federal government did not participate, “[t]he Aboriginal parties would consider the vote invalid, null and void”. [ 26 ] At the meeting of February 24, 2011, regarding the George River herd, Québec Deputy Minister Camden said that [TRANSLATION] “[t]he issue is very urgent and requires a decision without delay”.

The Chairman, a federal representative, mentioned that the Coordinating Committee [TRANSLATION] “had been debating about the caribou for several months but this is the first time that the issue of federal involvment is raised”. The Deputy Minister concluded the meeting by asking that [TRANSLATION] “the [Committee] vote as soon as possible, or Québec will perhaps be forced to decide”. The parties agreed to meet again on March 15 and 16, 2011.

[ 27 ] As for the Leaf River herd, a resolution adopted through the abstention of the Aboriginal representatives, who found the measure insufficient but a step in the right direction, recommended the measures proposed by the provincial government.

The following day, the Québec Department of Natural Resources and Wildlife announced that, in accordance with the resolution, the following conservation measures would be implemented: - a reduction in the length of the hunting season: it would begin on December 1 instead of November 15 and end on January 15 instead of February 15; - a reduction of 75% in the number of permits granted in Area 22A (from 2000 to 500) and a reduction of 25% in Area 22B; - the division of Area 23 into two, corresponding to the areas visited by each of the herds; a reduction of 25% in the number of permits in the new Area 23 West (Leaf River herd) and a hunting season from September 1 to October 1, 2011. [ 28 ] The Fédération québécoise des chasseurs et pêcheurs and the Quebec Outfitters Federation railed against the measures. [ 29 ] As for the George River herd, on March 4, 2011, the Associate Deputy Minister sent a draft resolution to the Coordinating Committee and indicated that [TRANSLATION] “Québec would like the [Coordinating Committee] to analyze this resolution as soon as possible with a view to obtaining advice by Thursday, March 10, 2011”.

She reiterated that it was an [TRANSLATION] “urgent situation”. [ 30 ] On March 7, the request was rejected by the Inuit representatives: The Inuit part has reviewed this matter, however given this afternoon’s e-mail from chairperson Louis Lesage wherein he states that the federal party has still not recieved a legal opinion regarding its participation to a vote pertaining to the George River herd . . ., we believed it would be premature to have an HFTCC meeting.

We believe the sole outcome of the proposed HFTCC conference call would be to have the federal party state that it cannot participate to a vote, given the absence of a legal opinion they are seeking which, as specified by Louis Lesage, will not be available until March 15 th or 16 th , 2011. As such we respectfully recommend that the proposed conference call be postponed until the federal party recieved its legal opinion.

We regret any delays, however see no alternative. [2] [ sic ] They added that the Aboriginal representatives still wanted a complete moratorium on sport hunting in the eastern sector of the Territory.

The Naskapi and the Crees agreed. [ 31 ] On March 16, 2011, given the absence of a response by the federal Minister (in fact, he never responded), the secretary of the Coordinating Committee cancelled the telephone meeting scheduled for the next day. [ 32 ] On March 17, 2011, the delegated Minister for Natural Resources and Wildlife unilaterally decided to reinstate the former date for the opening of the hunting season (November 15) concerning the Leaf River herd and so informed the representatives of the Aboriginal peoples.

He justified the change by stating that he aimed to [TRANSLATION] “facilitate the transportation and reception of hunters and to offer better access to the practice of hunting”, without further consultation of the Coordinating Committee, whose previous recommendation was thereby set aside in terms of the date for the opening of the sport hunting season. [ 33 ] Also on March 17, the Minister announced the following measures regarding the George River herd: a reduction in the hunting season by postponing its start from August 15 to October 2 for the eastern part of Area 23; a 50% reduction in the number of permits and the closing of the hunting season in the southern part of Area 23; a restriction in Area 24; and the closing of the hunting season the following year in the eastern part of Area 23 and in Area 24.

He added that he had to act unilaterally after the Coordinating Committee’s failures to vote on his proposals (it is important to point out that, if a vote had taken place, the proposals could have been adopted only with the preponderant vote of the Chairman, a government representative, since the position of the Aboriginal representatives was known and clear: they wanted an immediate and complete moratorium.

In such circumstances, the least that can be said is that there was an absence of consensus in the Coordinating Committee). [ 34 ] On March 18, the department made public the decisions announced to the Aboriginal representatives the day before. [ 35 ] On March 21, representatives of the Aboriginal peoples asked the Minister to defer the coming into effect of the measures. [ 36 ] On March 31, the Chairman of the Committee, a federal representative until April 1, notified the department that it had violated the consultation process in several ways. [ 37 ] In April 2011, the appellants instituted proceedings to quash the Minister’s announcements by means of a declaratory judgment and an injunction. [ 38 ] On May 31, the Coordinating Committee adopted, through the preponderant vote of the new Chairman, an Aboriginal representative, a resolution setting at 11 168 the total kill limit for non-Natives in the western part of the Territory (compared with 12 402 the previous year) and at zero in the eastern part of the Territory (P-34). [ 39 ] The department refused to implement the resolution, considering it illegal, as it only contemplated kills by non-Natives. [ 40 ] On July 13, 2011, by Minister’s Order AM 2011-026, the Regulation to amend the Regulation respecting hunting, (2011) 143 G.O.

II, 2077, was enacted; it implemented the announcements of February 25 and March 17, 2011, and came into force on July 27, 2011. [ 41 ] Subsequently, the proceedings to quash were amended to include the amendments to the Regulation . JUDGMENT UNDER APPEAL

[42] In a judgment rendered on November 4, 2011 and rectified on November 14, 2011 (2011 QCCS 5955), the Superior Courtconcluded that the change in the date of the opening of the Leaf River caribou hunt was not, in this case, a minor measure within themeaning of para. 2.4.37 of the Agreement and, therefore, that the government should have consulted the Coordinating Committee beforemaking the change (judgment, paras. 101-117).

However, the many meetings of the Coordinating Committee prior to the amendmentallowed for [TRANSLATION] “serious and in-depth discussions” that achieved the purpose of the Minister’s duty to consult theCommittee and to know the position of the Aboriginal peoples (para. 120).

In those circumstances, the judge considered the failure toconsult to be [TRANSLATION] “an irregularity that is unfortunate” (para. 126), that was committed in good faith (para. 127) and thatdid not justify quashing the Regulation (para. 129). [43] Concerning the regulatory amendment affecting the George River herd, the judge found that the Minister should have called fora vote by the Coordinating Committee on his proposal (paras. 133-148).

However, since the department knew the position of themembers of the Coordinating Committee concerning the proposal, the absence of a vote [TRANSLATION] “constituted a purelyprocedural omission to the obligation to consult” (paras. 143-146). [44] As for the resolution adopted in May 2011 by the Coordinating Committee, the judge was of the opinion that the Minister didnot have to put it into effect pursuant to para. 24.4.30, since it was incomplete as to the upper limit of kills.

That issue is not under appeal. [45] Ultimately, the judge found two [TRANSLATION] “purely procedural irregularities” with respect to the Agreement (paras. 183and 185) and dismissed the motion to declare the Regulation null and void. ARGUMENTS OF THE PARTIES [46] For the appellants, the provisions of

Section 24 of the Agreement are of public order and the Minister must abide by them infull. According to them, the judge erred in concluding that the consultation or voting process, as the case may be, was useless, given thedepartment’s knowledge of the parties’ arguments.

They add that it was not relevant to determine the Minister’s good faith or respect forthe honour of the Crown, since the Minister’s breaches were clear violations of the procedural provisions of the Agreement that were tobe followed absolutely in order to ensure the validity of the amendments to the Regulation. [47] The appellants next argue that any violation of a treaty governing Aboriginal rights requires a remedy.

Therefore, they ask thatthe Minister’s contested decisions and the amendments to the Regulation be declared null and void, or subsidiarily, that creativity beshown in remedying the violation, for example, by issuing a declaration of non-compliance, nullity with a suspended effect, an order toconsult, a structural injunction, etc. [48] The Attorney General of Québec argues, firstly, that the appeal has become moot with the end of the 2011-2012 hunting periodand the subsequent amendments to the Regulation.

According to him, the conclusions sought by the appellants would not resolve anyreal dispute. [49] Next, and subsidiarily, as regards the merits and admitting two technical breaches of the consultation process, the AttorneyGeneral contends that the principle of the honour of the Crown was respected by the repeated consultations of the representatives of theCrees, Inuit and Naskapi. Hence, the Minister respected the substance of the obligations under the Agreement since the Aboriginalrepresentatives were able to voice all their concerns, which were taken into consideration.

For the Attorney General, it is appropriate tofind inspiration in the procedural fairness jurisprudence and to [TRANSLATION] “adopt a non-formalist approach” to the processprovided for in

Section 24 of the Agreement. [50] Lastly, he points out that the Minister enjoys, under the law and the Agreement, broad discretionary power in regulatorymatters, which he exercised properly since he [TRANSLATION] “weighed the various interests involved”. According to him, theMinister [TRANSLATION] “considered the Aboriginal concerns and weighed the interests of the outfitters and other Quebecers, giveneconomic and political considerations”.

In those circumstances, the judge acted wisely in refusing to order that the regulatoryamendments be declared null and void, which is not an automatic remedy (Immeubles Port Louis Ltée v. Lafontaine (Village), (SCC), [1991] 1 S.C.R. 326). ANALYSIS I.

Preliminary Comments [51] The Agreement is not a simple contract of transaction terminating a dispute, since it gave rise to two acts, one federal and oneprovincial, making the Agreement paramount over any other law (James Bay and Northern Québec Native Claims Settlement Act, S.C.1976-77, ch. 32 and the Act approving the agreement concerning James Bay and Northern Québec, CQLR, c.

C-67). [52] Furthermore, following the repatriation of the Constitution, the rights stemming from the Agreement, in terms of both theircollective and individual components, became constitutionally protected pursuant to sections 25 and 35 of the Constitution Act, 1982:

25. The guarantee in this Charter of certain rightsand freedoms shall not be construed so as toabrogate or derogate from any aboriginal, treatyor other rights or freedoms that pertain to theaboriginal peoples of Canada including (

a) any rights or freedoms that have beenrecognized by the Royal Proclamation ofOctober 7, 1763; and (

b) any rights or freedoms that now exist by wayof land claims agreements or may be so acquired. 25. Le fait que la présente charte garantit certainsdroits et libertés ne porte pas atteinte aux droitsou libertés — ancestraux, issus de traités ouautres — des peuples autochtones du Canada,notamment:

a) aux droits ou libertés reconnus par laproclamation royale du 7 octobre 7, 1763;

b) aux droits ou libertés existants issus d'accordssur des revendications territoriales ou ceuxsusceptibles d'être ainsi acquis. 35.

(1) The existing aboriginal and treaty rightsof the aboriginal peoples of Canada are herebyrecognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada”includes the Indian, Inuit and Métis peoples ofCanada.

(3) For greater certainty, in subsection (1) “treatyrights” includes rights that now exist by way ofland claims agreements or may be so acquired. [Emphasis added.] 35.

(1) Les droits existants — ancestraux ou issusde traités — des peuples autochtones du Canadasont reconnus et confirmés. (2) Dans la présente loi, « peuples autochtonesdu Canada » s'entend notamment des Indiens, desInuit et des Métis du Canada.

(3) Il est entendu que sont compris parmi lesdroits issus de traités, dont il est fait mention auparagraphe (1), les droits existants issusd'accords sur des revendications territoriales ouceux susceptibles d'être ainsi acquis. The Agreement constitutes a land claim agreement recognizing the specific rights of Aboriginal peoples, as case law has recognized (see,among others, Quebec (Attorney General) v.

Moses, 2010 SCC 17, [2010] 1 S.C.R. 557 at para. 15). [53] It follows that the rights stemming from the Agreement cannot be amended or extinguished without the consent of theAboriginal peoples concerned, even through a sovereign act of the National Assembly of Québec or the Parliament of Canada (R. v.Sioui, (SCC), [1990] 1 S.C.R. 1025 at 1063).

That does not prevent the National Assembly or Parliament from adoptinglaws governing the exercise of the recognized rights, but only to the extent provided for in the Agreement or in a manner compatible withit. [54] However, although it was the forerunner of modern global treaties within the meaning of

section 35 of the Constitution Act,1982, the Agreement remains an internal Canadian legal document and is not the equivalent of an international treaty (R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075 at 1103). Its

interpretation and compulsory execution, if required, are therefore theresponsibility of the country’s courts. [55] Lastly, since the Agreement created rights in favour of the Aboriginal peoples that are protected by s. 35 of the Constitution Act,1982, non-compliance with it generally results in an absence of effect of the laws, regulations and government policies infringing thoserights, pursuant to s. 52 of the Constitution Act, 1982 (R. v. Ferguson, 2008 SCC 6 , [2008] 1 S.C.R. 96).

That is the price to payfor preserving the honour of the Crown in executing treaties, and the protected nature of treaty rights, unless the government concernedshows sufficient justification for infringement of a protected right (Sparrow at 1109 et seq.). [56] Considering these principles, it is now appropriate to interpret the relevant provisions of the Agreement in order to determinewhether the Minister failed to comply with them, particularly by taking certain measures and adopting the Minister’s Order of July 2011,and if he did, the appropriate remedy. [57] I end these comments by adding that this exercise has not become moot with the passage of time.

Of course, the measuresconcerning the 2011-2012 hunting season, which gave rise to the dispute before the Superior Court, are now a thing of the past, but theprovisions of the Agreement invoked by the parties continue to apply, along with certain amendments to the Regulation throughMinister’s Order 2011-026 (see, for example, sections 13 and 23,

Schedule II.1 and certain portions of sections 13.6, 13.7 and 13.10 ofthe Regulation), and the issue underlying the management of the caribou herds is likely to arise again. The dispute has therefore notbecome moot. In any case, if it had, I would be of the opinion that it is in the interest of justice for the Court to answer the questionsoutlined above and thereby provide the parties with clarifications for the future.[3] II. Co-management of Wildlife and the Role of the Coordinating Committee [58] Management of the wildlife in the Territory is a significant issue for the Aboriginal peoples, as shown by

Section 24, Hunting,Fishing and Trapping, of the Agreement, which is more than 35 pages long. [59] It is recognized therein that these activities are essential to the survival of the Aboriginal peoples and that they must be givenpriority, particularly over sport hunting (paragraph 24.6.1, and sub-paragraphs 24.6.3

d) and e)). [60] The Agreement also stipulates that a committee composed of 16 persons, 8 representing the Aboriginal peoples and 8 thegovernments, called the Coordinating Committee – Hunting, Fishing and Trapping (para. 24.4.1) is to be set up. The CoordinatingCommittee must meet officially at least four times a year (para. 24.4.16) and also within 20 days of a written request by five members(para. 24.4.15 and para. 12, Complementary Agreement No. 1).

[ 61 ] Its function is as follows: 24.4.1 A Hunting, Fishing and Trapping Coordinating Committee (hereinafter referred to as the “Coordinating Committee”), an expert body made up of Native and government members, is established to review, manage, and in certain cases, supervise and regulate the Hunting, Fishing and Trapping Regime established by and in accordance with the provisions of this Section. 24.4.1 Un Comité conjoint – Chasse, pêche et trappage, (le « Comité conjoint ») organisme expert constitué de représentants autochtones et de représentants gouvernementaux est créé pour étudier, administrer et dans certains cas surveiller et réglementer le régime de chasse, de pêche et de trappage institué par les dispositions du présent

chapitre et en conformité avec elles. 24.4.23 The Coordinating Committee shall be a consultative body to responsible governments , save where expressly stipulated in paragraph 24.4.30 and as such shall be the preferential and exclusive forum for Native people and governments jointly to formulate regulations and supervise the administration and management of the Hunting, Fishing and Trapping Regime. [Emphasis added.] 24.4.23 Le Comité conjoint est un organisme consultatif auprès des gouvernements responsables , sauf dans les cas expressément stipulés à l'alinéa 24.4.40; à ce titre, il est l'assemblée privilégiée et exclusive à laquelle, les autochtones et les gouvernements conjointement formulent les règlements et surveillent l'administration et la gestion du régime de chasse , de pêche et de trappage. [ 62 ] It can act on its own initiative or upon request (paras. 24.4.25, 24.4.26 and 24.4.28) and must receive any relevant information (paras. 24.4.24). [ 63 ] As for its specific responsibilities, they are described in various provisions: - review the terms of leases or permits of present outfitters when they expire with a view to minimizing conflicts with Native harvesting activity (para. 24.3.8); - recommend the prohibition of equipment for hunting, fishing or trapping (para. 24.3.12); - recommend, for management purposes, that the Aboriginal peoples obtain authorizations (para. 24.3.18); - give its advice concerning the exercise of the right to trap required for the management of a species by non-Natives (para. 24.3.20); - assess any application for a commercial fishery permit and make recommendations (para. 24.3.27); - be consulted and advise concerning any modification of provincial laws or regulations made necessary by the Agreement (para. 24.3.29); - conclude that control of harvesting activities is necessary (para. 24.3.30); - propose any measure regarding the Hunting, Fishing and Trapping Regime in the Territory, including a regulation or any other measures relating to the regulation, supervision or management of the Hunting, Fishing and Trapping Regime (para. 24.4.25); - give advice regarding any draft regulation, whether federal or provincial, concerning the Hunting, Fishing and Trapping Regime or the creation of parks, ecological reserves and wildlife sanctuaries (para. 24.4.26); - make recommendations to local and regional governments about certain matters (para. 24.4.35); - make recommendations about all aspects of hunting, fishing and trapping (para. 24.4.27); - receive, examine and distribute information, and participate in assessments (para. 24.4.29); - establish the upper limit of kills for certain species, including caribou (para. 24.4.30).

In short, it has a role to play in all aspects of the management of hunting in the Territory. [ 64 ] The Coordinating Committee’s importance in the co-management of wildlife is confirmed by the requirement that it be consulted by the governments before any decision is made regarding hunting, fishing or trapping and by the weight given to its advice.

24.3.36 Before submitting a new regulation or other decision for enactment or taking new action and before modifying or refusing to submit for enactment draft regulations or other decisions from the Coordinating Committee, the responsible Provincial of Federal Minister shall consult with the Coordinating Committee and shall endeavour to respect the views and positions of the Coordinating Committee on any matter respecting the Hunting, Fishing and Trapping Regime, the whole subject to the provisions of paragraph 24.4.37 and Sub-Section 24.12. 24.4.36

Sous réserve des dispositions de l'alinéa 24.4.37 et de l'article 24.12, le ministre responsable du Québec ou du Canada doit consulter le Comité conjoint avant de proposer l'adoption de nouveaux règlements ou la prise d'autres décisions ou d'instituer de son propre chef des mesures nouvelles et avant de modifier les projets de règlements ou autres décisions émanant du Comité conjoint ou de refuser d'en proposer l'adoption; il s'efforce de respecter les avis et prises de position du Comité sur toute question touchant le régime de chasse, de pêche et de trappage. 24.4.37 In all cases where the responsible Minister modifies or decides not to act upon the recommendations of the Coordinating Committee or decides to take new actions, he shall, before acting, consult with the Coordinating Committee when his decisions relate to Native and non-Native activities and the wildlife resources in the Territory except in the case of certain minor measures relating exclusively to non-Native activity and not affecting Native interests, and in particular such measures relating to zones, seasonal dates and bag limits. 24.4.37 Dans tous les cas où le ministre responsable modifie ou décide de ne pas suivre les recommandations du Comité conjoint ou décide de prendre de nouvelles mesures, il doit avant d'agir consulter le Comité conjoint lorsque ses décisions concernent les activités des autochtones et des non-autochtones et les ressources de la faune sauvage dans le Territoire, sauf dans le cas de certaines mesures d'ordre mineur, visant exclusivement les non- autochtones et ne touchant pas les intérêts des autochtones, et plus particulièrement dans le cas de mesures touchant les zones, les dates d'ouverture et de fermeture, et les limites de prises. 24.5.1 In Categories I and II, matters relating primarily to the protection of the wildlife resources rather than harvesting activity and hunting and fishing by non-Natives shall be solely the jurisdiction of the responsible Provincial or Federal Government.

Such matters of sole jurisdiction shall include, inter alia, the establishment of general quotas for the Territory, the representation of the interests of the Territory at international and intergovernmental negotiations relating to wildlife management, the regulation and management of wildlife insofar as this concerns the health of wildlife populations, the determination and protection of species requiring complete protection as referred to in paragraph 24.3.2 and the regulation and conducting of research projects related to wildlife resources. 24.5.1 Dans les catégories I et II, les questions touchant principalement la protection des ressources de la faune sauvage, plutôt que son exploitation ainsi que la chasse et la pêche par les non-autochtones, sont de la compétence exclusive du gouvernement provincial ou fédéral responsable selon le cas.

Ces questions de compétence exclusive comprennent, entres autres, l'établissement de quotas généraux pour le Territoire, la représentation des intérêts du Territoire aux négociations internationales et intergouvernementales sur la gestion de la faune sauvage, la réglementation touchant la faune sauvage et sa gestion dans la mesure où elles affectent la santé des populations animales, la détermination des espèces qui doivent être entièrement protégées et les mesures de protection mentionnées à l'alinéa 24.3.2 ainsi que la réglementation et l'exécution de projets de recherches touchant les ressources de la faune sauvage. 24.5.2 In Categories I and II, the responsible Provincial and Federal Governments shall exercise their powers with respect to matters referred to in paragraph 24.5.1 in the same manner as those powers are exercised with respect to Category III, namely they shall exercise those powers only upon the advice of or after consulting with the Coordinating Committee as the preferential and exclusive spokesman empowered to formulate procedures, recommendations, positions and views respecting these matters. [Emphasis added.] 24.5.2 En ce qui concerne les questions visées à l'alinéa 24.5.1, les gouvernements fédéral et provincial responsables exercent leurs pouvoirs, dans les catégories I et II, de la même manière qu'ils le font dans la catégorie III, c'est-à-dire qu'ils ne les exercent que selon l'avis du Comité conjoint ou après avoir consulté ce Comité, qui a qualité de porte-parole privilégié et exclusif habileté à formuler des procédures, des recommandations, des prises de position et des opinions sur ces questions . [ 65 ] The Québec legislator clearly understood the importance of the Coordinating Committee in the Hunting, Fishing and Trapping Regime, and obliged the Minister to act accordingly, as evidenced by the following provisions of the Act respecting hunting and fishing rights in the James Bay and New Québec territories , CQLR, c.

D-13.1:

74. The Coordinating Committee has the right to initiate, discuss, review and propose to the competent authorities any regulation or other measure relating to the Hunting, Fishing and Trapping Regime. 74. Le Comité conjoint peu t formuler, discuter, examiner et proposer aux autorités compétentes toute réglementation ou autre mesure relative au régime de chasse, de pêche et de piégeage. 75. The following shall be submitted to the Coordinating Committee for its advice: (

a) all drafts of regulations the Government intends to make relating to the Hunting, Fishing and Trapping Regime; . . . 75. Sont soumis à l'avis du Comité conjoint :

a) tout projet de règlement que le gouvernement se propose d'adopter relatif au régime de chasse, de pêche et de piégeage; […] 82. The Minister shall consult with the Coordinating Committee on any matter respecting the administration and management of the Hunting, Fishing and Trapping Regime before (

a) proposing the adoption of new regulations by the Government; (

b) taking new measures of his own initiative; (

c) acting otherwise than according to a recommendation submitted to him by the Coordinating Committee . [Emphasis added.] 82. Le ministre consulte le Comité conjoint sur tout sujet qui concerne l'administration et la gestion du régime de chasse, de pêche et de piégeage avant :

a) de proposer l'adoption de nouveaux règlements par le gouvernement;

b) d'instituer de sa propre initiative de nouvelles mesures;

c) d'agir autrement que selon une recommandation que lui a faite le Comité conjoint . [ 66 ] In other words, there is no inconsistency between the Agreement and that legislation as regards the role of the Coordinating Committee and the Minister’s duty to consult. Much to the contrary. [ 67 ] I understand from that analysis of

Section 24 that the parties to the Agreement established exhaustive procedures for the co- management of hunting, fishing and trapping in the Territory, at the heart of which is the Coordinating Committee, a specialized body. It can propose regulations (para. 24.4.25), then communicate them to the government concerned (para. 24.4.34), which retains its enactment power at all times (para. 24.4.35), but must consult the Committee again if the Minister accepts a different option (para. 24.4.36).

Furthermore, if a government wishes to adopt a regulation or amend one, it must submit its draft to the Coordinating Committee for advice (para. 24.4.26); subsequently, if the responsible Minister decides not to act on the recommendations of the Coordinating Committee, it must consult the Committee again, except in the case of minor measures (para. 24.4.37).

Lastly, in certain cases, the Coordinating Committee has genuine decision-making power (para. 24.4.30). [ 68 ] I therefore readily subscribe to the following comment in the Report of the Royal Commission on Aboriginal Peoples , Ottawa 1996, vol. 2 at 825: The 1975 James Bay and Northern Quebec Agreement (JBNQA) established the first claims-based fish and wildlife co-management regime between Aboriginal and non-Aboriginal governments in Canada. Since its establishment, most subsequent co-management systems either have been modelled after the James Bay arrangement or have adopted its specific characteristics. III.

Attributes of the Rights Recognized in

Section 24 [ 69 ] The Agreement carefully describes all cases in which the Coordinating Committee must be involved, its operating procedure, the nature of its decisions (advice, recommendation, standard setting) and their weight for the Minister concerned. [ 70 ]

Chapter 24 shows that the parties to the Agreement wanted a precise and informed process that does not guarantee any given result, but ensures consideration of the concerns of the Aboriginal peoples before the government concerned exercises its powers. [ 71 ] It follows that, although the Coordinating Committee is a joint body, the process set up does not constitute a means for the Aboriginal peoples to veto decisions within a government’s jurisdiction ( Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) , 2005 SCC 69 , [2005] 3 S.C.R. 388 at para. 66 ).

However, its being joint prompts the Aboriginal and government parties to discuss, reconcile and compromise.

Furthermore, the obligation to consult again if the Minister decides not to comply with the advice given by the Coordinating Committee clearly shows a duty to consider the interests of the Aboriginal peoples and to respond to them, rather than the Minister’s imposing his view of things, apart from situations that can justify infringement of the co-management process. [ 72 ] In reality, the mandate of the Coordinating Committee and its members’ interaction enable the governments to fulfil their duties associated with the honour of the Crown, particularly the duty to consult prior to decisions that may affect them in matters of hunting, fishing and trapping in the Territory, since “[t]he honour of the Crown is always at stake in its dealings with the Aboriginal peoples”, even after a treaty is signed ( Haida Nation v.

British Columbia (Minister of Forests) , 2004 SCC 73 , [2004] 3 S.C.R. 511 at paras. 16 , 17, 19 and 32). I would add, in passing, that attempts by a government party to take advantage of a preponderant vote would decidedly not sit well with the honour of the Crown. [ 73 ] Regarding the substantive content of the consultation mandated by the Agreement, it is less precise and I find it useful to shed

light on it for the parties. [74] According to the Supreme Court, consultation is a duty of variable geometry, the intensity of which varies according to thecontext.

Without stipulating specific guidelines, the Supreme Court did not hesitate to cite, in Haida Nation, at para. 46, a New Zealanddocument that provides a few characteristics of the process: . . . genuine consultation means a process that involves . . .: ▪ gathering information to test policy proposals ▪ putting forward proposals that are not yet finalised ▪ seeking Māori opinion on those proposals ▪ informing Māori of all relevant information upon which those proposals are based ▪ not promoting but listening with an open mind to what Māori have to say ▪ being prepared to alter the original proposal ▪ providing feedback both during the consultation process and after the decision-process.[4] In short, it is appropriate to prefer an approach that demonstrates the intention to truly consider the concerns of the Aboriginal peoples asexpressed in the framework of a genuine consultation process (Delgamuukw v.

British Columbia, (SCC), [1997] 3S.C.R. 1010 at para. 168). [75] The idea is reiterated in the following terms in Taku River Tlingit First Nation v.

British Columbia (Project AssessmentDirector), 2004 SCC 74, [2004] 3 S.C.R. 550 at para. 29: The scope of the duty to consult . . . always requires meaningful, good faith consultation and willingness on the part of the Crown tomake changes based on information that emerges during the process. [76] Hence, the duty to consult in matters of Aboriginal rights claims cannot boil down to a procedure to follow; it also requires asufficiently open mindset to render it meaningful. [77] I believe that these same principles apply to any consultation prescribed by a treaty or required for its application in a mannerrespectful of the honour of the Crown, as codified in

section 35 of the Constitution Act, 1982. [78] It follows that allowing a Minister not to comply with the process provided for in

Section 24 claiming that it is useless or that itwould not change the ultimate result would run counter to the Minister’s constitutional obligations. It would not be a purely proceduralirregularity, but a breach of the honour of the Crown through a failure to consult with an open mind during the implementation of achapter of a treaty that provides for a mechanism to reconcile the interests of the Aboriginal peoples. [79] In short, an historical and teleological analysis of

Section 24 of the Agreement shows that the Minister concerned must consultin good faith before exercising his regulatory power, except for minor amendments to existing regulations that do not affect theAboriginal peoples, and be receptive to the advice and recommendations of the Coordinating Committee. [80] As for the Coordinating Committee, it must also act in good faith, particularly by diligently providing informed advice. [81] Like the environmental assessment process provided for in

Section 22 of the Agreement, the process provided for in

Section 24assumes that all the participants are conscientious and carry out their work with due diligence (Moses at para. 23). That is how the co-management agreed upon can be achieved. [82] In

summary,

Section 24 recognizes the Aboriginal peoples’ two distinct but related rights, both constitutionally protected: (

i) apriority regarding kills and (ii) co-management of hunting, fishing and trapping in the Territory. If a law or regulation infringes thoserights, it can be declared inapplicable, unless the Attorney General of Québec demonstrates sufficient justification for infringement of theright (Sparrow, at 1109 et seq.; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44). [83] Assessment of such justification involves analysis of the following factors in particular: (

i) the objective pursued by theMinister (for example, a measure to conserve a species); (ii) the reason that the procedure guaranteeing the participation of theAboriginal peoples through the Coordinating Committee was not complied with (for example, urgent action is required), and (iii)verification that the infringement is minimal in the circumstances (for example, the temporary scope of a measure). [84] In R. v.

Nikal, (SCC), [1996] 1 S.C.R. 1013 at para. 110, it is admitted that “[o]n occasion, strict andexpeditious conservation measures will have to be taken if potentially catastrophic situations are to be avoided”, excluding theconsultation otherwise required. [85] The above list of factors is not meant to be exhaustive, and they must be developed and analyzed always bearing in mind theimportance for governments and courts to respect the rights of the Aboriginal peoples.

In other words, the burden borne by governmentsin terms of justification must remain high; otherwise the rights protected by s. 35 of the Constitution Act, 1982 could be neutered and thehonour of the Crown distorted. IV. Application of these Principles to the Case at Bar

[86] Since

Section 24 of the Agreement contains a description of all the situations in which the Coordinating Committee must beinvolved, the procedure to follow in its deliberations and the weight to be given to its advice and recommendations, we must, above all,rely on its provisions in order to determine whether the Minister infringed the rights of the Aboriginal peoples, as the majority pointedout in Beckman at paras. 12 and 54: [12] . . .

Modern comprehensive land claim agreements, on the other hand, starting perhaps with the James Bay and Northern QuébecAgreement (1975), while still to be interpreted and applied in a manner that upholds the honour of the Crown, were nevertheless intendedto create some precision around property and governance rights and obligations. . . . [54] . . .

Where adequately resourced and professionally represented parties have sought to order their own affairs, and have given shapeto the duty to consult by incorporating consultation procedures into a treaty, their efforts should be encouraged and, subject to suchconstitutional limitations as the honour of the Crown, the Court should strive to respect their handiwork: Quebec (Attorney General) v.Moses, 2010 SCC 17, [2010] 1 S.C.R. 557. [87] In my opinion, in the case at bar, the Minister committed three breaches of the process agreed upon.

Two were, in fact, admittedby the Attorney General and the third was not clearly raised by the appellants. [88] Firstly, on March 17, 2011, the Minister announced a date for the opening of the Leaf River caribou hunting season, chosenunilaterally, without preliminary discussion with the Coordinating Committee. In addition, the Minister did not even deign to inform therepresentatives of the Aboriginal peoples of the concerns received from outfitters between his February 25 announcement and his March17 announcement, concerns cited by him as warranting a change in the date.

Lastly, the date announced gave short shrift to the priorresolution of the Coordinating Committee, adopted, moreover, by a vote of the Minister’s representatives.

In short, this was a reversal ofthe Minister’s position, the type of situation in which the Agreement makes it clear that there is a duty to consult the CoordinatingCommittee, since that did not constitute a minor change within the meaning of para. 24.4.37, as demonstrated by the statements underoath filed by the appellants and as the trial judge concluded. [89] It can be readily accepted that the Aboriginal representatives on the Coordinating Committee, if they had been made aware ofthe demands of the outfitters and the new proposal by the Minister, would have tried to raise different arguments and even proposed oneor more other solutions. [90] A protected right was infringed. [91] Next, in the case of the George River herd, the Minister acted contrary to the firm position of the Aboriginal peoples andassumed he would have “won” the vote if it has been held.

In doing so, he gave short shrift to the process provided for in

Section 24, aprerequisite for any valid amendment to the Regulation, a process in which he would normally have had to explain to the representativesof the Aboriginal peoples why he rejected their advice that all sport hunting be prohibited.

The duty became even more compelling afterthe vote by the Coordinating Committee, and before the adoption of the Minister’s Order, on a resolution recommending that no kills beallowed by non-Natives in regard to the George River herd.[5] [92] A second protected right was infringed. [93] Lastly, it appears that the amended draft regulation was not submitted to the Committee before being adopted on July 13, 2011.Yet para. 24.4.26 of the Agreement provides that “regulations relating to the Hunting, Fishing and Trapping Regime proposed byresponsible governments shall be submitted to the Coordinating Committee for advice before enactment”.

Furthermore, sub-paragraph75 (

a) of the Act respecting hunting and fishing rights in the James Bay and New Québec territories states that “all drafts of regulations”must be submitted to the Coordinating Committee. That means that the text itself of the proposed amended regulation had to besubmitted to the Coordinating Committee before being enacted. In fact, the term “draft regulation” is not unusual in Québec law.[6] Forthe sake of consistency with other Québec laws, that

interpretation must be accepted, since nothing in the provisions of the Agreementpoints to a different meaning. [94] Of course, a real and extensive duty to consult may be effective without obliging the government to first translate into legalterms any contemplated amendment, which could slow down the process substantially. However, the final text of a draft regulation oramendment is often more than a detail and it must be submitted to the members of the Coordinating Committee, unless the Committeewaives that requirement. [95] The three breaches of the process provided for in

Section 24 constitute an equal number of infringements of the Aboriginalpeoples’ right to be consulted and participate in matters of co-management of hunting, fishing and trapping in the Territory, recognizedby all the provisions of

Section 24 of the Agreement, a substantive right protected by s. 35 of the Constitution Act, 1982. [96] It remains to be determined whether these infringements of a protected right can be justified within the meaning of the analysisrequired under s. 35 of the Constitution Act, 1982 (Sparrow, Delgamuukw and Tsilhqot’in Nation).

In that exercise, we must bear in mindthat the treaty rights must not be infringed lightly; it follows that the evidence of justification must be clear and convincing (R. v.Sundown, (SCC), [1999] 1 S.C.R. 393 at 417). [97] Regarding the first infringement, the record shows that the decision to change the date for the opening of the hunting season inthe western sector of the Territory, without abiding by the process provided for in the Agreement, stemmed from a feeling ofadministrative urgency (the government machinery needs six months to amend the Regulation), exasperation with the Aboriginalpeoples, a wish to accommodate the concerns of outfitters—not communicated to the Aboriginal representatives—and an error ininterpreting the scope of the duty to consult under para. 24.4.37.

In these circumstances, I cannot be convinced that a justification withinthe meaning of s. 35 of the Constitution Act, 1982 was demonstrated. [98] As for the second infringement, the evidence shows that the Minister, by ordering the amendments to the Regulation regarding

the George River herd, had in mind the implementation of urgent and temporary conservation measures, reconciling a degree of protection of the decimated caribou herb and the economic interests of outfitters. To be acceptable, that justification should have demonstrated that the department clearly distinguished between the consequences of a drastic reduction of the herd for the way of life of the Aboriginal peoples concerned and the financial losses of a few outfitters offering a recreational activity to non-Natives.

Those interests are not to be reconciled, as the former definitely win out over the latter, as the Agreement states. The position of the Minister, who admitted the need for urgent conservation measures, was thus contrary to the priority of the Aboriginal peoples as recognized by the Agreement (and Aboriginal rights in the absence of such a treaty: Tsilhqot’in Nation ).

Attempting to reconcile the conservation of a herd necessary to the survival of the Aboriginal peoples and the interests of outfitters was an operation prohibited by the Agreement and contrary to its spirit. [ 99 ] I conclude that none of the infringements were justified. V. The Appropriate Remedy [ 100 ] In Pilotte v.

Corporation de l'Hôpital Bellechasse, C.A., February 1, 1973, Lajoie J.A., on behalf of the Court, pointed out that non-compliance with procedural requirements cannot be safeguarded by the simple observation that compliance would not change the result of the decision: The fact that the ultimate decision would probably have been the same if it had been arrived at through the required procedure does not make the decision at issue valid or lawful, or call for the substitution of a judgment of the Court, which is not authorized by any legislative enactment . [7] [ 101 ] That principle was reiterated in regard to the closing of a school, regarding which the law prescribed prior consultation of the parents before the commissioners’ decision ( English Montreal School Board v.

Boyle , 2006 QCCA 852 ; Commission scolaire de Montréal v. Copps , J.E. 2002-2063 (C.A.) ). [ 102 ] That is even more true in this case, where the procedures prescribed confirm a substantive right to participate in the co- management of hunting, fishing and trapping in the Territory, a right recognized by laws that are paramount and protected by s. 35 of the Constitution Act, 1982 .

Thus, in the case of the new date for the opening of the Leaf River caribou hunting season, if it had followed its course, the consultation process would perhaps have given rise to changes that could have responded in part to the real concerns of the Aboriginal peoples, but we do not know that.

One thing is certain, in the absence of consultation, the Minister cannot know that either ( Mikisew Cree First Nation , at para. 66 ). [ 103 ] The following factors must be taken into consideration in determining the appropriate remedy in this case. [ 104 ] Firstly, the numerous minutes of the Coordinating Committee show that the parties always considered the contested regulatory amendments to be transitional.

In fact, they have achieved their effects since the judgment under appeal. [ 105 ] Secondly, ministerial declarations or press releases cannot be declared invalid or null and void under s. 52 of the Constitution Act, 1982 . Only legislative or regulatory texts can. In addition, a standard action in nullity can deal only with a decision or

an act by a person subject to the superintending power of the Superior Court, not with the announcement of an intention to make a decision. In the case at bar, the Minister’s positions contested by the appellants only had an effect once the amendments to the Regulation were enacted, in July 2011. [ 106 ] Thirdly, the amendments regarding the George River caribou cause the appellants a problem because they do not go far enough in terms of reducing kills. To invalidate those parts of the amendments to the Regulation would mean reinstating, in theory, provisions that are even more unacceptable to the appellants.

Furthermore, such invalidation could serve as a springboard for a claim for damages by the outfitters in the eastern part of the Territory. [ 107 ] Fourthly, the Regulation has been amended several times since the judgment in first instance, particularly to reflect subsequent amendments acceptable to the appellants, [8] some of which build on amendments contested here. The nullification of the 2011 amendments would likely result in a cascade of

interpretation problems, even nullifications. [ 108 ] In those circumstances, I am of the view that the appropriate solution is to pronounce only declaratory conclusions, which the appellants’ motion introductive of suit actually sought in part. Thus, the breaches will not go unpunished.

CONCLUSION [ 109 ] For these reasons, I propose that the Court allow the appeals, quash the conclusions of the Superior Court judgment and, ruling anew, allow the motion introductive of suit in order to declare that the Minister violated the rights of the Aboriginal peoples under the James Bay Agreement by setting, in his order AM 2011-026, the date of the opening of the hunting season for the caribou of the Leaf River herd at October 15, 2011 instead of November 1, 2011, and by allowing hunting of the caribou of the George River herd in 2011, and reserve the rights of the Aboriginal peoples concerned to claim compensation for the prejudice sustained because of these violations, the whole with costs, in both appeal and first instance. (

s) PIERRE J. DALPHOND J.A.