2020 QCCA 18, 2020 QCCA 18

Official English Translation of the Judgment of the Court Ressources Strateco inc. c. Procureure générale du Québec 2020 QCCA 18 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-009554-178 (200-17-022389-159) DATE: January 13, 2020 CORAM: THE HONOURABLE JOCELYN F. RANCOURT, J.A. SUZANNE GAGNÉ, J.A. GENEVIÈVE COTNAM, J.A. STRATECO RESOURCES INC. APPELLANT – Plaintiff v. THE ATTORNEY GENERAL OF QUEBEC RESPONDENT – Defendant THE GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE) THE CREE NATION GOVERNMENT THE CREE NATION OF MISTISSINI IMPLEADED PARTIES – Interveners JUDGMENT I.

Overview [ 1 ] Strateco Resources Inc. (“Strateco”) is a mining exploration company listed on the Toronto Stock Exchange. In 2005 and 2006, when the price of uranium was on the rise, it acquired 559 mining claims in the Otish Mountains region in Northern Quebec, a region recognized for its uranium potential.

The proposed mining area is located 210 km from Mistissini, a Cree community, and 275 km from Chibougamau, on territory covered by the James Bay and Northern Québec Agreement [1] (the “ Agreement ”). [ 2 ] In the spring of 2008, Strateco took steps to obtain the approvals required to carry out an advanced uranium exploration project it named the Matoush project.

In addition to the environmental assessment process provided for in the Agreement , it had to obtain a certificate of authorization from the Minister of Sustainable Development, the Environment, Wildlife and Parks (the “Minister”) under the Environment Quality Act [2] (the “ EQA ”). [ 3 ] After a number of consultations, the Minister refused to issue the certificate of authorization, stating that the [ translation ] “proposal has not garnered social acceptability [from the Cree community] and has therefore not placed sufficient importance on the principles set out in s. 152 of the Environment Quality Act ”. [3] A few months earlier, the Minister had announced that he was suspending the issuance of certificates of authorization in connection with uranium production in Quebec pending the recommendations of the Bureau d’audiences publiques sur l’environnement (the “BAPE”). [ 4 ] Following this decision, Strateco filed legal proceedings against the Attorney General of Quebec (the “AGQ”), seeking $182,684,575 in damages and $10,000,000 in punitive damages.

Essentially, it argued that the Minister was not entitled to base his refusal to issue the certificate of authorization on the lack of social acceptability. It submitted that the Minister’s decision was not only illegal, but was tantamount to a disguised expropriation of its claims.

It further argued that the government of Quebec and the Minister had breached their duty of coherence by announcing a moratorium after having encouraged companies to invest in uranium production in connection with the Plan Nord. [ 5 ] In a well-substantiated judgment, Justice Denis Jacques of the Superior Court dismissed Strateco’s application. [4] Strateco appealed. [ 6 ] The Court is of the opinion that the appeal should be dismissed.

While the Minister’s decision to refuse the issuance of the certificate of authorization does not clearly fall within the category of “core policy” decisions, it enjoys the qualified immunity of the

state. Strateco therefore had to show that the Minister acted in bad faith or with serious carelessness or recklessness. It did not make such proof. Under Title II of the EQA, the Minister was entitled to base his refusal on the lack of social acceptability of the project, without this being likened to a right of veto granted to the Cree. As for the moratorium announced by the Minister and his refusal to issue the certificate, they do not constitute a disguised expropriation of Strateco’s claims nor a breach of the duty of coherence. II. Context A.

The applicable environmental assessment regime [ 7 ] Since Strateco’s claims are located on lands classified as category III under the Agreement , the Matoush project is subject to an environmental assessment process separate from that established under Title I of the EQA . [ 8 ] The Agreement is a modern treaty designed to reconcile the rights and interests of Aboriginal peoples and those of non- Aboriginal peoples in Northern Quebec. [5] The rights it grants Aboriginal peoples are referred to in s. 35 of the Constitution Act 1982 , [6] whose purpose, it is worth noting, is “[t]he reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship”. [7] [ 9 ]

Section 22 of the Agreement establishes a specific environmental and social protection regime that applies to every proposed development liable to affect the environment or the people of the territory to which the Agreement applies.

In particular, the regime sets out “[a]n environmental and social impact assessment and review procedure established to minimize the negative impact of development in or affecting the Territory upon the Native people and the wildlife resources of the Territory”. [8] [ 10 ] The Agreement also provides that final decisions regarding the environmental assessment are made by two administrators, one appointed by the Governor General of Canada and the other by the Lieutenant Governor of Quebec.

In the latter case, the person appointed is the Deputy Minister of the Environment and Wildlife (the “Deputy Minister”). [ 11 ] To this end, the Agreement establishes three advisory committees whose members are appointed by Canada, Quebec and the Cree Regional Authority: ● The Evaluating Committee (“EVCOM”) makes recommendations to the administrators regarding the extent of the impact assessment and review to be submitted by the proponent; [9] ● The provincial Review Committee (“REVCOM”) and the federal Review Panel (“REVPAN-South”) review the impact assessment and recommend to the administrators whether or not the project should proceed. [10] The administrators, however, are not bound by those recommendations. [11] [ 12 ] In addition to the constitutional protection the Agreement enjoys, s. 22.2.3 specifies that “[a]ll applicable federal and provincial laws of general application respecting environmental and social protection shall apply in the Territory to the extent that they are not inconsistent with the provisions of the Agreement and in particular of this Section”. [12] [ 13 ] In Quebec, Title II of the EQA implements the assessment process provided for in the Agreement .

In order to perform advanced exploration work, Strateco must obtain a certificate of authorization from the Minister or the Deputy Minister, to whom this responsibility has been delegated by order in council. [13] In this regard, s. 164 EQA states: 164. Where the Minister is satisfied with the impact assessment statements provided by an applicant, he shall transmit a certificate of authorization or a refusal in writing to him. Copy of such decision is transmitted to the Cree Regional Authority.

Conditions that the applicant must respect in the carrying out and in the operation of his project may be added to a favourable decision. If the Minister does not follow, in the matters contemplated in this

section and in

section 163, the recommendations of the Review Committee, he must consult it again before transmitting any decision. [14] 164. Lorsque le ministre est satisfait des études d’impact fournies par un requérant, il lui transmet un certificat d’autorisation ou un refus écrit. Copie de la décision est transmise à l’Administration régionale crie. Une décision favorable peut être assortie de conditions, que le requérant doit respecter lors de la réalisation et de l’exploitation du projet. Si le ministre ne suit pas, dans les matières visées au présent

article et à l’article 163, les recommandations du Comité d’examen, il doit consulter à nouveau celui-ci avant de transmettre toute décision. [ 14 ] The entire provincial process is guided by the principles set out in s. 152 EQA :

152. In the exercise of their functions and jurisdictions, the Gouvernement du Québec, the Cree Regional Authority, the Cree villages, the municipalities, the Bands, the Regional Zone Council, the Advisory Committee, the Evaluating Committee and the Review Committee shall give due consideration to the following principles: (

a) the protection of the hunting, fishing and trapping rights of the Native people in the territory described in

section 133 as well as their rights in Category I lands, with regard to any activity connected with projects affecting the said territory; (

b) the protection of the environment and social milieu, particularly by the measures proposed pursuant to the assessment and review procedure contemplated in sections 153 to 167, in view of reducing as much as possible for the Native people the negative impacts of the activities connected with projects affecting the territory contemplated in

section 133; (

c) the protection of the Native people, of their societies, communities and economy, with regard to any activity connected with projects affecting the territory contemplated in

section 133; (

d) the protection of the wildlife, of the physical and biological milieu and of the ecological systems of the territory contemplated in

section 133, with regard to any activity connected with projects affecting the said territory; […] (

f) the participation of the Crees in the application of the environmental and social protection regime provided for in this division; (

g) any rights and interest of non-Native people; (

h) the right of the persons acting lawfully to carry out projects in the territory contemplated in

section 133. [15] 152. Dans l’exercice de leurs fonctions et de leurs compétences, le gouvernement du Québec, l’Administration régionale crie, les villages cris, les municipalités, les bandes, le conseil régional de zone, le Comité consultatif, le Comité d’évaluation et le Comité d’examen accordent une attention particulière aux principes suivants :

a) la protection des droits de chasse, de pêche et de piégeage des autochtones, dans le territoire visé à l’article 133 et de leurs droits dans les terres de la catégorie I, eu égard à toute activité reliée aux projets ayant des répercussions sur ledit territoire;

b) la protection de l’environnement et du milieu social, notamment au moyen des mesures proposées à la suite de la procédure d’évaluation et d’examen visée aux articles 153 à 167, en vue de diminuer le plus possible, auprès des autochtones, les répercussions négatives des activités reliées aux projets touchant le territoire visé à l’article 133;

c) la protection des autochtones, de leurs sociétés, de leurs communautés et de leur économie, eu égard à toute activité reliée aux projets touchant le territoire visé à l’article 133;

d) la protection de la faune, du milieu physique et biologique et des écosystèmes du territoire visé à l’article 133, eu égard à toute activité reliée aux projets touchant ledit territoire; […]

f) la participation des Cris à l’application du régime de protection de l’environnement et du milieu social prévu dans la présente section;

g) les droits et intérêts, quels qu’ils soient, des non-autochtones;

h) le droit de réaliser des projets, que possèdent les personnes agissant légalement, dans le territoire visé à l’article 133. [ 15 ] Lastly, the advanced exploration of a nuclear substance requires a licence from the Canadian Nuclear Safety Commission [16] (the “CNSC”), which is tasked with approving the project [17] under the Canadian Environmental Assessment Act [18] (the “ CEAA ”). B.

The steps taken by Strateco [ 16 ] In March 2008, Strateco informed the Deputy Minister and the president of the CNSC of its intention to initiate the process for obtaining the necessary approvals to carry out the Matoush project. In November 2008, the EVCOM recommended that the project be subject to an environmental and social impact assessment process. Strateco then took certain preliminary steps, including a pre- consultation with the Crees of Mistissini.

At that time, the Crees already had concerns regarding the pollution of Lake Mistissini and the edibility of fish from the area during the mine’s operation. [ 17 ] In March 2009, the administrators sent a joint directive regarding the extent and content of the impact assessment Strateco was to carry out.

Given the concerns regarding uranium exploration and mining, the federal administrator asked Strateco to properly consult the Cree communities and required that this consultation take [ translation ] “the mining phase into account in order to better anticipate the elements that could affect the social acceptability of the project as a whole”. [19] [ 18 ] In August 2009, the Cree Nation of Mistissini instructed its council to obtain more information regarding the project that was taking shape on its hunting and trapping territory. [ 19 ] On November 5, 2009, Strateco sent the provincial and federal authorities as well as the CNSC an environmental impact assessment statement of more than 1800 pages.

That document pointed out that the support of the local communities was a major factor

for the success of the project. [20] [ 20 ] In May 2010, the REVCOM and the REVPAN-South held public information sessions in Mistissini during which Strateco presented an informational video about the project. This general presentation did not assuage the Crees’ concerns regarding the effects of the mining phase, particularly those pertaining to radioactive waste management.

Strateco felt that more precise answers could be provided once the results of the advanced exploration phase were known. [ 21 ] In the spring of 2010, after having analyzed the impact assessment statement, the REVCOM submitted 103 questions and comments to Strateco. Strateco’s answers, sent in July 2010, dealt, among other things, with the project’s social acceptability and with the concerns raised regarding the nuclear industry. [ 22 ] At the same time, the Grand Council of the Crees adopted a mineral policy stating its position regarding mining development within its territory.

The guiding principle for its actions was stated as follows: Guiding Principle The Cree Government will support and promote the development of mineral resources within the territory of Eeyou Istchee that provides long term social and economic benefits for the Cree and that addresses sustainable development in compliance with the environmental and social protection regime of the JBNQA and that is compatible with the Cree way of life and protection of Cree rights in the Cree Territory. [21] [ 23 ] As for Strateco, it continued its discussions with the REVCOM and the REVPAN-South.

A joint public hearing of those two committees was scheduled for November 23, 2010. The day prior thereto, the Cree Nation of Mistissini held a special assembly regarding the Matoush project. Of the 200 members in attendance, 94% voted against the project. [ 24 ] At the public hearing the following day, the Chief of the Council of the Cree Nation of Mistissini expressed his community’s formal opposition to the project.

He was of the view that Strateco had not been able to earn the trust of his community due to incomplete information addressing the risks of the project and its refusal to properly answer his questions. [ 25 ] On November 25, 2010, at another joint hearing of the REVCOM and the REVPAN-South, the Regional Conference of Elected Officers of James Bay declared that it was in favour of the project.

The mayor of Chibougamau, however, insisted on the importance of obtaining the support of the Crees for the project and added that their opposition [ translation ] “did not result from an irrational fear, but from a lack of information”. [22] [ 26 ] On December 13, 2010, the Council of the Cree Nation of Mistissini passed a resolution confirming its opposition to the project. A few weeks later, on January 24, 2011, it passed a second resolution in favour of a moratorium on uranium exploration.

It was of the view that more time was required in order to inform community members about the socio-economic and environmental effects of the exploration and the operation of a uranium mine. On March 23, 2011, the Grand Council of the Crees took note of this resolution and, in turn, asked for a moratorium on the territory of Mistissini. [ 27 ] In May 2011, the REVPAN-South filed its recommendations regarding the Matoush project.

It was of the view that support for the project from the local communities was still a key factor and recommended that additional information be provided to the federal administrator before she made a decision. The federal administrator therefore asked Strateco for additional information. [ 28 ] In July 2011, the REVCOM filed its report recommending the conditional approval of the project. It stated the following regarding social acceptability: [ translation ] The environmental acceptability of the biophysical effects of the project are not at issue at this stage.

To assess its social acceptability, one must consider not only the jobs created, the economic benefits, and the opening up and use of the territory and its resources resulting from the project, but also the generally expressed willingness of the communities to welcome mineral projects. This presupposes frank and honest cooperation between the proponent and the population. There is a significant perception, however, that the uranium project poses a risk, particularly among the Aboriginal population that lives downstream from the project and uses the territory for its subsistence.

The prospect that this exploration project could give rise to the operation of a mine, whose effects have not been fully determined at this stage, has added to the population’s concerns. Those concerns are all the more justified since, if the project’s uranium potential is confirmed, it could lead to other mines of a similar nature in the region. Under these circumstances, the REVCOM has serious reservations regarding the project in question.

Nonetheless, considering that the project can be given an environmental and social framework and that with this framework, the project’s environmental effects are ultimately all manageable.

Further considering that this exploration project represents an opportunity to develop a relationship of trust and communication without which the possibility of eventually operating a mine would be threatened, the REVCOM recommends that the mineral project submitted to it be authorized subject to the conditions annexed to this report. [23] [ 29 ] The REVCOM imposed the following condition pertaining to the social acceptability of the project: [ translation ] 1. Social acceptability The issues related to a uranium mining project are out of the ordinary.

The proponent will have to continue its efforts to inform and reassure the population, particularly the population of the Cree community of Mistissini, with respect to its mineral project and the consequences of a potential mining project involving the uranium deposit under study. The proponent will have to obtain the consent of

the Crees, through the Mistissini Band, as regards the project’s social acceptability, and shall enter into a written agreement to that effect with the Band Council or another entity designated by the latter. That agreement shall be sent to the Provincial Administrator and to the REVCOM for informational purposes before excavation work on the ramp begins. [24] [ 30 ] On December 23, 2011, Strateco and the Cree Nation of Mistissini entered into a communication and information agreement in order to pursue their discussions.

The agreement, however, specified that it should not be interpreted as support by the Crees for the Matoush project. [ 31 ] On February 2, 2012, the federal administrator authorized the Matoush project. She reiterated the importance of ensuring the proper implementation of the communication and information agreement in order to address the concerns of the Mistissini Crees.

Indeed, she asked Strateco to provide her with a report on the progress made in implementing the agreement six months and one year after its signing. [ 32 ] That same day, under the CEAA , [25] the federal Minister of the Environment declared that the project was not likely to cause significant adverse environmental effects and that the mitigation measures described in the comprehensive study report were appropriate.

He therefore referred the project to the CNSC so it could make a decision. [ 33 ] As the June 2012 CNSC public hearings approached, the relationship between Strateco and the Mistissini Crees deteriorated. During those public hearings, the Chief of the Cree Nation of Mistissini explained that his community was not opposed to the mining industry, but was of the view that uranium mining did not fit in well with its traditional role as steward of the land.

The fear was that granting an exploration permit would open the door to uranium mining on its traditional territory. [ 34 ] On August 8, 2012, the Grand Council of the Crees decreed a permanent moratorium on uranium exploration and mining throughout its territory. [ 35 ] On October 16, 2012, the CNSC issued Strateco a licence to prepare the site and construct a uranium mine for its underground exploration project.

Although the CNSC’s mandate did not include the social acceptability aspect, it urged Strateco to improve its relationship with the local population. [ 36 ] Once this milestone had been reached, Strateco awaited the approval of the provincial administrator and the issuance of the certificate of authorization provided for in the EQA . The Deputy Minister, who was concerned by the deterioration in the relationship between Strateco and the Crees, decided, in accordance with the Agreement and the EQA , to once again consult the REVCOM.

At the end of a meeting held on November 14, 2012, the REVCOM unanimously acknowledged that, in the existing context, it would not be possible to meet the condition regarding social acceptability set out in the 2011 report. C.

The Minister’s decision and the judicialization of the file [ 37 ] In December 2012, the Minister was faced with two scenarios, each of which had advantages and disadvantages: authorize the exploration project with conditions or reject it. [ 38 ] Without waiting for the Minister’s decision, on January 17, 2013 Strateco filed an application for mandamus and for a declaratory judgment in order to compel the Minister to deliver the required authorization for the Matoush project. [26] [ 39 ] On March 28, 2013, at a meeting with Strateco, the Minister announced a moratorium on the uranium industry, which meant that no advanced exploration or mining certificate would be issued before the BAPE had filed a report on the matter.

An official press release was published later that day. At that time, the Minister was aware that, throughout the uranium industry, the only pending application for an advanced exploration permit was Strateco’s. [ 40 ] On April 22, 2013, Strateco sent the Minister a formal demand. It held the government of Quebec liable for all damages suffered up to then due to its conduct, which Strateco characterized as wrongful and arbitrary.

It also amended its application for mandamus and for a declaratory judgment in order to add an application for a safeguard order to reflect the consequences of the moratorium on the uranium industry. [ 41 ] On May 15, 2013, Strateco declared an $87,241,070 impairment charge against its assets due to the announcement of the moratorium. [27] [ 42 ] On June 21, 2013, the Minister sent Strateco a prior notice of his refusal to issue a certificate of authorization regarding the Matoush project. He was of the view that the project had not garnered sufficient social acceptability and that this was a deciding factor.

He granted Strateco 60 days within which to submit its observations. [ 43 ] On July 31, 2013, Justice Danielle Blondin of the Superior Court dismissed Strateco’s application for a safeguard order. [ 44 ] On September 20, 2013, Strateco submitted its observations regarding the Minister’s prior notice of refusal. [ 45 ] On November 7, 2013, the Minister refused to issue a certificate of authorization.

After defining social acceptability and emphasizing its importance within the scope of the environmental assessment regime provided for in Title II of the EQA , he indicated that [ translation ] “the lack of social acceptability from the Cree community, the population directly affected by your project, is obvious and conclusive”. [28] The Minister was of the view that the project had not placed sufficient importance on the principles set out in s. 152 of the EQA , [ translation ] “particularly as regards the protection of the social milieu and the protection of Aboriginal persons, their societies, their communities and their economy”. [29] [ 46 ] On December 5, 2013, Strateco filed an application to nullify the Minister’s decision, in which it asked the Superior Court to

authorize the Matoush project. [30] It withdrew that application after filing its application for damages on December 11, 2014. On June 8, 2015, Strateco availed itself of the protection under the Companies’ Creditors Arrangement Act . [31] [ 47 ] On October 26, 2015, the trial judge homologated an agreement between the parties regarding the voluntary intervention of the impleaded parties and authorized the impleaded parties to intervene in the proceedings. [ 48 ] On February 22, 2016, Strateco amended its application to add a claim for $10,000,000 of punitive damages. III.

Judgment under appeal [ 49 ] After setting out the context and the evidence in detail, the judge dismissed the AGQ’s argument based on the exhaustion of recourses. In his view, Strateco was not required to use or exhaust other recourses in order to claim damages from the AGQ. [ 50 ] The judge then identified the issues in dispute that he had to address: [ translation ] 1. Was the Minister entitled to consider social acceptability in refusing the certificate of authorization sought by Strateco? 2. Did the Minister act in bad faith by refusing to issue the certificate of authorization to Strateco? 3.

Is Strateco entitled to compensation for a disguised expropriation? [32] [ 51 ] In answering the first question, the judge considered that the Minister’s decision enjoyed broad protection. [33] Strateco therefore had to prove, with clear and compelling evidence, that the Minister had acted in bad faith in making his decision, [34] a notion that includes serious carelessness and recklessness. [35] [ 52 ] He concluded that the Minister had been entitled to consider social acceptability in order to refuse to issue the certificate of authorization.

Although this concept is not expressly set out in the EQA , it encompasses the principles stated in

section 152 . [36] [ 53 ] Based on the expert evidence of Dr. Louis Simard filed by the impleaded parties, the judge held that social acceptability is measured by its result rather than its process. That being said, even if it were to be centered on the process, the Minister’s analysis having led to his decision could not be characterized as being in bad faith. [37] [ 54 ] The judge also noted that Strateco knew from the outset that its project had to be acceptable to the local community.

Notwithstanding the Crees’ concerns and their request for information on the long-term effects of the operation of a uranium mine, Strateco had limited itself to answering questions related to the advanced exploration phase it wanted to initiate.

The judge was of the view that the Crees’ refusal of the project and their request for a moratorium were well substantiated. [ 55 ] In short, while the judge acknowledged that the Crees do not have a right of veto, he concluded that [ translation ] “[i]t was up to the Minister to decide on all the factors to be considered, including the Cree community’s lack of social acceptability for the project”. [38] [ 56 ] Regarding the second question, the judge pointed out [ translation ] “that it is not the role of the courts to substitute their assessment for that of the decision-maker with respect to the evidence to be considered and the weight to be given to the relevant factors”. [39] He noted that good faith is presumed and that it was obvious here that the decision had not been made lightly and had involved an in-depth analysis after the observations of all interested parties had been received.

He concluded that there was no evidence of bad faith, carelessness or gross negligence amounting to bad faith. [40] [ 57 ] The judge also dismissed the argument based on [ translation ] “positive indications and false expectations”, as well as the argument regarding a breach of the duty to inform. He noted that Strateco had never received assurances that it would obtain its certificate of authorization regardless of the project’s social acceptability.

On the contrary, he wrote, [ translation ] “all of the evidence points to the importance of social acceptability for the issuance of the required certificate of authorization”. [ 58 ] As regards the third question, the judge concluded that Strateco had not been dispossessed and that it continued to own the claims, such that there had been no actual or disguised expropriation. [ 59 ] Given the foregoing, the judge did not rule on the quantum of damages. IV. The issues in dispute [ 60 ] The appeal raises the following questions: A.

Did the Minister commit a fault giving rise to his civil liability by basing his refusal on the lack of social acceptability? B. Do the moratorium and the refusal to issue the certificate constitute a disguised expropriation of the claims held by Strateco? C. Did the government of Quebec and the Minister breach their duty of coherence? [ 61 ] The AGQ added a subsidiary question regarding the quantum of damages claimed and sought the authorization to amend her brief in order to clarify her position in that regard. [41]

[62] In light of the answers to the questions set out above, it is unnecessary to rule on the matter of damages or on the AGQ’sapplication for the authorization to amend her brief. Similarly, the questions submitted by the impleaded parties regarding the exhaustionof recourses and the absence of causation are no longer relevant. V. Analysis A.

Did the Minister commit a fault giving rise to his civil liabilityby basing his refusal on the lack of social acceptability? [63] Strateco argues that the judge erred by considering that the Minister, as an elected representative, could make a policy decision when faced with two irreconcilable positions.[42] In its view, the Minister, when making a decision under Title II of the EQA, is notacting as an elected representative and his discretion is more limited than that of the government under Title I. [64] Strateco thus raises the political nature of the decision and its legality.

It argues that the Minister was not entitled to base hisdecision on a policy factor and that by refusing to issue the certificate of authorization due to a lack of social acceptability, he committeda fault giving rise to the civil liability of the state.[43] [65] The AGQ argues that the Minister’s decision is a policy matter that enjoys the protection of the state’s qualified immunity.Thus, in the absence of bad faith, he incurred no civil liability. [66] Before ruling on whether the Minister could base his refusal on the lack of social acceptability, a few words must be said aboutthe rules of civil liability applicable to the Minister’s power under Title II of the EQA.

(1) The rules of civil liability applicable to the state and the qualified immunity of the state [67] The rules of civil liability set forth in the C.C.Q. apply to the state, “subject to any other rules of law which may be applicable tothem”.[44] Those rules include the qualified immunity of the state, which shields the state from any civil liability resulting from a policydecision, except if the decision was made in bad faith, a standard that encompasses serious recklessness and is akin to the concept of gross negligence.[45] [68] The difficulty lies in differentiating true policy decisions (or core policy decisions) from operational decisions, which aim toimplement or apply an established policy.

In Brown v. British Columbia (Minister of Transportation and Highways),[46] Cory, J. definedthese two categories of decisions as follows: True policy decisions involve social, political and economic factors. In such decisions, the authority attempts to strike a balance betweenefficiency and thrift, in the context of planning and predetermining the boundaries of its undertakings and of their actual performance.True policy decisions will usually be dictated by financial, economic, social and political factors or constraints.

The operational area is concerned with the practical implementation of the formulated policies, it mainly covers the performance orcarrying out of a policy.

Operational decisions will usually be made on the basis of administrative direction, expert or professionalopinion, technical standards or general standards of reasonableness.[47] [69] In Montambault,[48] Deschamps, J.A., as she then was, stated [translation] “that there is no watertight barrier between policydecisions and operational decisions”, that [translation] “the ‘discretion’ - ‘policy/operation’ tests can only serve as guides” and that the ultimate issue to be decided is [translation] “whether the claim is justiciable”.[49] [70] She suggested the adoption of the concept of a spectrum, used in judicial review matters, in order to determine whether adecision enjoys the protection of qualified immunity: [translation] [77] At one end, pure policy decisions will not give rise to judicial intervention, because it is the executive branch, not the judicialbranch, that is tasked with weighing the social and economic issues at play in society.

When a public body acts within the scope of itsdiscretion, there can be no intervention. If the public body violates its own statute or exceeds its discretion, public law will allow forjudicial intervention. When the unreasonable exercise of the executive power results in injury, the courts can punish that conduct if thereis a fault under the private law. If the decision involves no discretion, only the private law will apply. Between both extremes, anassessment of the extent of the discretion will guide the court’s intervention.

The greater the discretion, the closer the standardwill be to reasonableness. […] [80] I therefore suggest that the concept of a spectrum, which is applied in administrative law to review legality, also be used todetermine whether a public body will be subject to judicial intervention for a given act or decision. Indeed, without overtly resorting tothe notion of a spectrum, Binnie, J., in Des Champs v. C.S. FR. Prescott-Russell (SCC), [1999] 3 S.C.R. 281, at p. 307,seemed to be of the view that, in the context of the Public Authorities Protection Act, R.S.O. 1990, c.

P.38, the notion was useful fordetermining the immunity attached to activities of a public nature as compared with other subordinate, incidental or private acts. [81] In the context of balancing the protection of individual rights to redress against the preservation of the independence ofadministrative decision-makers, be they municipal employees, representatives of the Attorney General or members of a board ofdirectors of a hospital, the traditional distinction between a quasi-judicial function and an administrative function must be set aside in

order to decide whether a given decision-maker will enjoy immunity. The analysis must be more subtle and the spectrum that applies tostandards of review is appropriate here to decide on judicial intervention. Save for situations in which there is a statutory immunity,immunity will be greater where the interests involved call upon policy considerations.

The more the elements for making a decision are defined by statutory provisions, the easier it will be for the courts to intervene.[50] [Emphasis added] [71] Based on that approach, the qualified immunity of the state applies as long as the decision-maker acts within the scope of hisdiscretion and as long as that discretion is exercised in a reasonable manner.

It is only when the immunity no longer applies that thedecision-maker’s liability can arise. [72] In a 2010 judgment, the Supreme Court acknowledged that “[t]he ruling in Montambault represents a sound approach to determining whether government agencies are immune from civil liability in Quebec”.[51] [73] The following year, in R. v. Imperial Tobacco Canada Ltd., the Supreme Court revisited the method based on the policy-operational test: [74] The second approach emphasizes the “policy” nature of protected state conduct.

Policy decisions are conceived of as a subset ofdiscretionary decisions, typically characterized as raising social, economic and political considerations. These are sometimes called“true” or “core” policy decisions. They are exempt from judicial consideration and cannot give rise to liability in tort, provided they areneither irrational nor taken in bad faith. A variant of this is the policy/operational test, in which “true” policy decisions are distinguishedfrom “operational” decisions, which seek to implement or carry out settled policy.

To date, the policy/ operational approach is thedominant approach in Canada: Just; Brown v. British Columbia (Minister of Transportation and Highways), (SCC),[1994] 1 S.C.R. 420; Swinamer v. Nova Scotia (Attorney General), (SCC), [1994] 1 S.C.R. 445; Lewis (Guardian ad litem of) v.

British Columbia, (SCC), [1997] 3 S.C.R. 1145.[52] [74] It noted, however, that “[t]he policy/operational distinction [...] does not work very well as a legal test”,[53] because it “posits a stark dichotomy between two water-tight compartments—policy decisions and operational decisions”.[54] It added that “[i]n fact, decisions in real life may not fall neatly into one category or the other”.[55] [75] The Supreme Court nevertheless adopted the following approach in order to identify “core policy” decisions that enjoyqualified immunity: [90] I conclude that “core policy” government decisions protected from suit are decisions as to a course or principle of action that arebased on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith. […][56] It was careful, however, not to make it a decisive or absolute test: […] This said, it does not purport to be a litmus test.

Difficult cases may be expected to arise from time to time where it is not easyto decide whether the degree of “policy” involved suffices for protection from negligence liability. A black and white test that willprovide a ready and irrefutable answer for every decision in the infinite variety of decisions that government actors may produce is likelychimerical.

Nevertheless, most government decisions that represent a course or principle of action based on a balancing of economic, social and political considerations will be readily identifiable.[57] [Emphasis added] [76] Similarly, in Hinse,[58] it pointed out that the ruling in Imperial Tobacco “did not lay down a strict rule that only ‘true’ core policy decisions can be protected by a qualified immunity”.[59] [77] In short, the Supreme Court did not close the door on the application of the qualified state immunity rule to a decision that doesnot qualify as a true policy decision.

(2) The characterization of the Minister’s decision [78] The question, in light of these principles, is whether the Minister’s refusal to issue the certificate of authorization is protected bythe state’s qualified immunity. [79] In this regard, the judge concluded that [translation] “a minister’s decisions made while applying a core policy involve broaddiscretion and enjoy significant qualified immunity”.[60] This statement may be confusing. [80] Indeed, the application of an established policy is more akin to an operational decision.

Furthermore, the fact that the decision-maker has broad discretion does not lead to the inference, as the judge seems to have found, that the decision is a policy decision.Imperial Tobacco stated it clearly: [88] Policy, used in this sense, is not the same thing as discretion. Discretion is concerned with whether a particular actor had a choice toact in one way or the other. Policy is a narrow subset of discretionary decisions, covering only those decisions that are based on publicpolicy considerations, like economic, social and political considerations.

Policy decisions are always discretionary, in the sense that adifferent policy could have been chosen. But not all discretionary decisions by government are policy decisions.[61]

[ 81 ] In the present case, it is difficult to characterize the Minister’s decision based on the dichotomy between policy decisions and operational decisions. The decision is not a planning measure or one that predetermines the boundaries of the public authority’s undertakings, as required by Cory, J.’s definition in Brown . [62] Rather, the Minister must give particular consideration to the principles set out in

section 152 EQA in order to decide whether or not to grant the certificate of authorization requested by the project’s proponent. The decision, therefore, must be made within a certain framework established by the legislature. [ 82 ] The situation also differs from that in Deniso LeBel , [63] where the authorization to transfer a timber concession was not subject to any restrictions, [64] and from that in Hinse , where the then provisions of the Criminal Code did not offer any guidance on the exercise of the power of mercy. [65] [ 83 ] On the other hand, the decision ought to be informed by considerations of social, economic, or political policy reflected in the principles set out in

section 152 EQA . The decision-maker has broad discretion in weighing these principles, which principles are not exhaustive. This is far from the situation in which the decision-maker must merely determine whether the project meets the technical requirements set out in a regulation. [ 84 ] Moreover, the decision is made by a high-level person within the public administration.

Although the Minister has chosen to delegate his power to the Deputy Minister, who is also the designated authority under the Agreement , the fact remains that the Deputy Minister cannot be likened to an employee within the operational sphere. This is an additional clue to the policy-related nature of the decision. [ 85 ] Lastly, the Minister’s decision cannot be completely severed from the impact assessment process within which it falls.

As mentioned in Bellefleur , [ translation ] “it would be an insult to the legislature to argue that the Minister can merely follow the legal requirements pro forma and, with full impunity, completely ignore, exclude or disregard the information intended to assist in his decision-making”. [66] This principle applies to Title I as much as it does to Title II of the EQA , where the importance of the REVCOM’s recommendations is confirmed by the Minister’s duty to consult the REVCOM’s members if he decides not to follow those recommendations. [67] The Minister’s decision, which is the culmination of that process, is more akin to a decision relating to the implementation of the environmental and social impact assessment regime than the definition of a course or principle of action. [ 86 ] In short, the Court is of the opinion that the Minister’s decision under

section 164 EQA does not fall clearly within the category of “core policy” decisions, nor within the category of operational decisions. [ 87 ] Nevertheless, applying the spectrum approach proposed by Deschamps, J.A. in Montambault , the judge did not err in concluding that the Minister’s decision is protected by the state’s qualified immunity. Indeed, the Minister’s decision comes much closer to a pure policy decision (one that would not be subject to any statutory limits, which is not the case here) than to an operational decision, where no discretion exists.

In other words, it involves a sufficient degree of “policy” to enjoy the immunity. This conclusion is dictated by the nature of the principles set forth in

section 152 EQA and by the broad discretion conferred on the Minister. [ 88 ] It bears repeating that those principles call upon economic, social and political considerations. They involve multiple interests, such as the participation of the Crees in the application of the environmental and social protection regime and the rights and interests of non-Native people. As Deschamps, J. noted in Entreprises Sibeca Inc. v.

Frelighsburg (Municipality) , [68] “it would be inconceivable for the courts to interfere in this process and set themselves up as arbitrators to dictate that any particular interest be taken into consideration”. [69] [ 89 ] The judge, therefore, did not err in holding that the Minister’s decision [ translation ] “enjoys broad protection” [70] and that it was up to Strateco to show that the decision had been made in bad faith within the meaning of Finney v.

Barreau du Québec [71] and Sibeca . [72] [ 90 ] In Hinse , the Supreme Court stated that the standard of bad faith, which includes serious recklessness, is akin to the concept of gross negligence set out in

article 1474 C.C.Q. [73] It summarized as follows the standard of fault applicable to a decision protected by the state’s qualified immunity: [53] In sum, decisions of the Minister that are made in bad faith, including those demonstrating serious recklessness—as defined in Finney and Sibeca —on the Minister’s part, fall outside the Crown’s qualified immunity. Bad faith can be established by proving that the Minister acted deliberately with the specific intent to harm another person.

It can also be established by proof of serious recklessness that reveals a breakdown of the orderly exercise of authority so fundamental that absence of good faith can be deduced and bad faith presumed. It is with this in mind that the duty owed by the Minister when exercising his or her power of mercy must be analyzed. [74] [ 91 ] It remains to be decided whether the Minister, in basing his refusal to issue the certificate on the lack of social acceptability of the Crees, strayed so far from the principles that ought to guide the exercise of his discretionary power that his bad faith can be deduced therefrom.

(3) The concept of social acceptability [ 92 ] The judge found that although the concept of social acceptability is not set out in the EQA , it encompasses the principles stated in

section 152: [ translation ] [435] As the plaintiff points out, the term “social acceptability” does not expressly appear in the statute. [436] An examination of

section 152 of the EQA , however, clearly shows that is it important for the Minister to consider such a factor. The concept of social acceptability encompasses the principles set out in the EQA . Indeed, the

section specifically provides that, in

making decisions, particular attention must be paid to the following principles: (

b) the protection of the environment and social milieu, particularly by the measures proposed pursuant to the assessment and review procedure contemplated in sections 153 to 167, in view of reducing as much as possible for the Native people the negative impacts of the activities connected with projects affecting the territory contemplated in

section 133; (

c) the protection of the Native people, of their societies, communities and economy, with regard to any activity connected with projects affecting the territory contemplated in

section 133; […] (

f) the participation of the Crees in the application of the environmental and social protection regime provided for in this division; (

g) any rights and interest of non-Native people; (

h) the right of the persons acting lawfully to carry out projects in the territory contemplated in

section 133. [Italics in the original] [ 93 ] This calls for some nuance, because social acceptability cannot be a principle above all others that trumps them all. [ 94 ] Principles (

b) and (

c) deal with the effects on the social milieu and on Aboriginal communities, whose protection is sought. The goal is to “reduc[e] as much as possible for the Native people the negative impacts of the activities connected with projects” and protect their societies, communities and economy. As for principles (

g) and (h) , they consist in giving consideration to any rights and interest of non-Native people and to the right to carry out projects in the territory. [ 95 ] Based on the evidence accepted by the judge, social acceptability is viewed more as being the result of a participatory process. [75] In his expert report, Louis Simard lists several

definitions, including the definition used by the Minister in his decision and which, according to the expert, is applicable in Quebec: [ translation ] The result of a process through which the parties in question jointly establish the minimum conditions that must be put into place so that, at a given time, a project, program or policy fits harmoniously within its natural and human environment. [76] [ 96 ] Other

definitions equate social acceptability to a [ translation ] “collective judgment” or to the consent of the population to a project liable to have social effects. The expert refers to it as a state: [ translation ] The view of social acceptability as a result appears quite clearly. It may involve consent, acceptance or, on the contrary, refusal.

While this view usually includes the idea of a process, the prevailing idea—and one that must ultimately be decided—is that of a state, a status, a position, at a given time, regarding the project: does the project have social acceptability or not? [77] [ 97 ] Therefore, it would seem that social acceptability is [ translation ] “directly related to the perceived threat that a project may pose to the life or quality of life of a milieu”. [78] This perception depends on a multitude of factors, such that the social acceptability of a project—or, more accurately, its acceptance—does not necessarily correlate to its environmental and social effects.

In his expert report, Louis Simard further states that [ translation ] “[i]n certain cases, mere compliance with standards and laws may be insufficient to foster social acceptability”. [ 98 ] The Minister, in his decision, also acknowledged that social acceptability is shaped by a number of factors: [ translation ] [11] Social acceptability is shaped by a number of factors: It [social acceptability] depends on the context, the circumstances, the characteristics of a milieu at any given time, the socio-economic conditions of the community in question at the time a project arises, the institutional framework within which decisions are made, the national policies that apply, the project’s governance framework, the identity of the proponent, the nature of social and power relationships within the community and a host of other factors. [79] [ 99 ] In order to conclude that social acceptability encompasses principles (

b) and (

c) of

section 152 EQA , the judge relies on Bellefleur , which cites Friends of the Oldman River to the effect that “[t]he environment, as understood in its generic sense, encompasses the physical, economic and social environment”.

This is true, but, once again, these judgments deal with the [ translation ] “possible consequences of an environmental change on the livelihood, health and other social concerns of a community”, not on the community’s perception. [ 100 ] In short, the social acceptability of a project must not be confused with the consequences of the project’s activities on the environment and the social milieu. The opposition of the Crees is not, in and of itself, an adverse consequence and does not lead to the conclusion that the project does not respect principles (

b) and (

c) of

section 152 EQA regarding the protection of the social milieu and the protection of Native persons, their societies, communities and economy. Similarly, it is difficult to see how this factor could encompass principles (

g) and (h) , namely any rights and interest of non-Native people and the right to carry out projects in the territory. [ 101 ] In contrast, however, principle (f) – the participation of the Crees in the application of the environmental and social protection

regime – includes social acceptability. As Louis Simard explains in his expert report, [ translation ] “the notion of social acceptability operationalizes public participation by arriving at a result that allows the decision-maker, via his or her decision-making process, to determine whether or not it is advisable to carry out a project”. [80] Since the participation of the Crees is one of the principles that must guide the Minister’s decision, it goes without saying that he can consider social acceptability viewed as the result of that participation. [ 102 ] Furthermore, the judge was right in noting that the Sustainable Development Act incorporates the notion of social acceptability. [81]

Section 6 of that statute reads: 6.

In order to better integrate the pursuit of sustainable development into its areas of intervention, the Administration is to take the following set of principles into account when framing its actions: […] ( e ) ” Participation and commitment ”: The participation and commitment of citizens and citizens’ groups are needed to define a concerted vision of development and to ensure its environmental, social and economic sustainability; ( f ) ” Access to knowledge ”: Measures favourable to education, access to information and research must be encouraged in order to stimulate innovation, raise awareness and ensure effective participation of the public in the implementation of sustainable development; [82] 6.

Afin de mieux intégrer la recherche d’un développement durable dans ses sphères d’intervention, l’Administration prend en compte dans le cadre de ses différentes actions l’ensemble des principes suivants: […]

e) « participation et engagement »: la participation et l’engagement des citoyens et des groupes qui les représentent sont nécessaires pour définir une vision concertée du développement et assurer sa durabilité sur les plans environnemental, social et économique;

f) « accès au savoir »: les mesures favorisant l’éducation, l’accès à l’information et la recherche doivent être encouragées de manière à stimuler l’innovation ainsi qu’à améliorer la sensibilisation et la participation effective du public à la mise en oeuvre du développement durable; [ 103 ] The legislature has therefore made public participation a key element of sustainable development. Consequently, social acceptability, viewed as the result of that participation, cannot be ignored.

(4) Conclusion regarding the Minister’s alleged fault [ 104 ] It follows that the Minister was entitled to base his refusal to issue the certificate of authorization on the lack of social acceptability.

By giving decisive weight to this factor, he did not stray so far from the principles that ought to guide the exercise of his discretionary power “that absence of good faith can be deduced and bad faith presumed”. [83] [ 105 ] Moreover, as the judge noted, the Minister did not make his decision lightly or in a manner indicative of bad faith or serious recklessness: [ translation ] [501] It is obvious that the Minister’s decision was not made lightly, that it involved an in-depth analysis after all the parties had had the opportunity to express their position. [502] Following the prior notice of refusal, Strateco had the opportunity to present its observations before a final decision was rendered (P-42).

It also approached elected officials directly. [503] As for the Minister, he had the benefit of a background document prepared by his team (P-43), which had examined Strateco’s observations. [504] Social acceptability is at the heart of the project’s feasibility.

Strateco could not have been unaware of this fact, especially since it knew that uranium is a unique substance that elicits many reactions on the part of the public and that had its project moved forward, this would have been a first in Quebec. [505] In light of the foregoing, none of the evidence demonstrated bad faith on the part of the Minister in the present case.

His decision to refuse the issuance of the certificate of authorization sought by Strateco was reasonable. [506] Similarly, there was no carelessness or gross negligence amounting to bad faith. [507] The lack of social acceptability invoked in order to refuse the certificate of authorization was not a pretext… it was a reality. [508] The facts here are definitely not like those that gave rise to the decision in Roncarelli v. Duplessis that the plaintiff relies on. [ 106 ] Moreover, Strateco is wrong when it argues that the Minister’s decision amounts to giving the Crees a right of veto.

While the Crees’ participation, reflected here by a lack of social acceptability, may be a deciding factor, it need not necessarily be one, at least not as regards the category III lands in question here. The Minister could have given paramount weight to the other principles and approved the project notwithstanding Cree opposition. [84]

B. Do the moratorium and the refusal to issue the certificate constitute a disguised expropriation of the claims held by Strateco? [ 107 ] Strateco argues that the effect of the moratorium announced by the Minister on March 28, 2013 was to strip its mining claims of all value. Since this moratorium suspended the term of its claims for a period of more than six months, it argues that it is entitled to compensation equal to the amounts spent for all the work performed. [ 108 ] It bases that argument on

section 82 of the Mining Act [85] which states: 82. The Minister may order the cessation of the work if necessary in his judgment to permit the use of the territory for public utility purposes. In such a case, the Minister shall, subject to certain conditions, suspend the term of the claim. After six months, if the Minister is of opinion that the cessation of the work must be maintained, he shall terminate the claim and pay compensation equal to the amounts spent for all the work performed, on the filing of the reports on that work. 82.

Le ministre peut ordonner la cessation des travaux, s’il le juge nécessaire, pour permettre l’utilisation du territoire à des fins d’utilité publique. Dans ce cas, il suspend, sous certaines conditions, la période de validité du claim. Après une période de six mois, lorsque le ministre considère que la cessation des travaux doit être maintenue, il met fin au claim et verse une indemnité correspondant aux sommes dépensées pour tous les travaux effectués, sur dépôt des rapports de ces travaux. [ 109 ] Strateco, however, does not satisfy any of the requirements of that provision.

First, no order to cease work was issued by the Minister of Natural Resources and Wildlife, who is in charge of the application of the Mining Act . In addition, the March 28, 2013 announcement does not call for the cessation of the exploration work nor does it contain any indication whatsoever that the Minister of Natural Resources and Wildlife is taking possession of the claims for public utility purposes.

In short, this provision is of no assistance to Strateco and the judge did not make a reviewable error by refusing to apply it. [ 110 ] Strateco further submits that the March 28, 2013 announcement of the moratorium and the November 7, 2013 notice of refusal effectively dispossessed it of its claims even though it continued to own them.

It argues that since it has been deprived of the benefit of these material assets, it is entitled to compensation by reason of this expropriation, which it characterizes as “disguised”. [ 111 ] The Court does not share this point of view. [ 112 ] In Lorraine (Ville de) v. 2646 - 8926 Québec inc. , the Supreme Court stated that expropriation refers to the “power of a public authority to deprive a property owner of the enjoyment of the attributes of his or her right of ownership” [86] and that the exercise of that power is “strictly regulated to ensure that property is expropriated for a legitimate public purpose and in return for a just indemnity”, as

article 952 C.C.Q . in fact provides. [87] The expropriation will be disguised if it is exercised “outside this legislative framework for an ulterior motive, such as to avoid paying an indemnity […]”. [88] [ 113 ] Authors Pierre Delisle, Joseph-André Roy, Alain Roy and Denis Savoie point out that an expropriation is disguised when the state, acting outside the legislative framework, does something [ translation ] “whose effect is to dispossess an individual or a business of property or remove for all intents and purposes any possibility of using the property”. [89] [ 114 ] In order for the state’s conduct to result in a disguised expropriation, it must amount to an [ translation ] “‘absolute denial’ of the exercise of the right of ownership or ‘an actual confiscation’ of the immovable”, as this Court stated in Wallot c.

Québec (Ville de) . [90] [ 115 ] In the present case, Strateco knew from the outset the risk it ran in undertaking its uranium exploration project. It was fully aware that, ultimately, the Minister could either agree or refuse to issue the certificate of authorization. [ 116 ] In fact, when Strateco acquired 559 mining claims in the Otish Mountains, in May 2005, was aware that its uranium mining project would be subject to the environmental assessment procedure set out in

section 22 of the Agreement . It knew perfectly well that the implementation of that procedure was governed by Title II of the EQA , which describes the steps to be taken by the proponent of a mining project, from the initial notice to the Minister until the latter’s final decision. [ 117 ] The evidence reveals that all the steps leading to the Minister’s decision were followed. In refusing to issue the certificate of authorization, the Minister merely exercised the right provided for in the EQA .

There was no appropriation or stripping of Strateco’s claims. [ 118 ] Moreover, Strateco was not dispossessed of the claims. Neither the announcement of a moratorium nor the Minister’s refusal to issue the certificate can be considered an absolute denial of its right of ownership. [ 119 ] Strateco relies on the Supreme Court’s rulings in Manitoba Fisheries [91] and R. v. Tener [92] to support its dispossession argument. [ 120 ] In the first case, Manitoba Fisheries operated a business selling fish caught in Manitoba to other provinces and to the United States.

In 1969, Parliament adopted a statute granting a government corporation a monopoly over the export of fish from Manitoba. Under the statute, the corporation could issue a licence allowing Manitoba Fisheries to retain its right to export fish or even exempt it

from the monopoly. Manitoba Fisheries did not obtain a licence or an exemption and had to cease its operations. The Supreme Court found that the statute had resulted in a disguised expropriation, because Manitoba Fisheries had been deprived of its most precious asset, its goodwill, since all of its clients now had to deal with the corporation. Consequently, its physical assets had been rendered useless, and this total taking of possession by the government could not be done without compensation. [ 121 ] In R. v.

Tener , the Supreme Court ruled that the order in council adopted by the province of British Columbia to create a park on the land subject to the mineral claims held by the owners was an expropriation. Wilson, J. was of the view that the order in council amounted to an “absolute denial of the [respondents’] right to go on the land and sever the minerals so as to make them their own”, thereby “depriv[ing] the respondents of their profit à prendre”. [93] [ 122 ] The situation here is very different, because Strateco still holds its claims and the state has neither withdrawn nor claimed anything from it.

Strateco lost nothing and the state acquired nothing as a result of the Minister’s announcement and his refusal to issue the certificate of authorization. There is therefore no dispossession here. [ 123 ] Strateco’s argument that the Minister’s decision resulted in an absolute denial of its ownership of the claims is not any more convincing. The judge’s reasoning in this regard is flawless. He pointed out that Strateco’s claims give it limited rights to carry out surface exploration work. Advanced exploration rights are subject to the authorization of the Minister and are not guaranteed to Strateco.

In addition, although Strateco’s desire to carry out advanced exploration work has been stymied, it is not prevented from continuing surface exploration work or from carrying out exploration work for minerals other than uranium on its claims. Lastly, since it continued to pay the fees to retain its right to 415 claims, there is nothing preventing it from subsequently submitting a new application for uranium exploration. [ 124 ] In short, the Court is of the opinion that the March 28, 2013 announcement and the November 7, 2013 notice of refusal do not constitute a disguised expropriation. C.

Did the government of Quebec and the Minister breach their duty of coherence? [ 125 ] According to Strateco, the government and the Minister committed a fault by inducing it to invest in uranium production and then changing the rules of the game by imposing a moratorium on the issuance of certificates of authorization for advanced exploration. [ 126 ] In first instance, the argument seems to have been pleaded from the perspective of promissory estoppel, while on appeal Strateco essentially faults the government for having breached its duty of coherence. [ 127 ] Although it does not state it as clearly, Strateco considers that the government held out the prospect that it would obtain the required authorizations to proceed with its project.

It cites various government publications dealing with the Plan Nord that specifically refer to Strateco and uranium production.

It adds that the extension of a road, the securing of various authorizations during the initial exploration phase, including the authorization allowing it to build a landing strip, and the participation of Strateco’s president in presentations of the Matoush project alongside the Premier are all positive signs that reassured it about the future. [ 128 ] The judge rightly dismissed the doctrine of promissory estoppel, which requires proof of a clear and unambiguous promise made to a citizen by a public authority in order to induce the citizen to perform certain acts. [94] [ 129 ] Indeed, the evidence does not support the conclusion that the Minister undertook, at any stage whatsoever, to render a favourable decision to Strateco or to issue the certificate of authorization for the advanced exploration phase.

The various elements Strateco referred to did not originate from the Minister, but from other government entities. Despite the government’s interest in uranium production, the Minister never agreed to constrain his discretionary power to issue the certificate. [ 130 ] Relying on Hydro-Québec c. Construction Kiewit Cie , [95] Strateco also claims that the AGQ committed a fault by breaching her duty of coherence, which stems from the duty of good faith.

In that decision, this Court held that a party to a contract who creates false expectations in the other contracting party with a view to encouraging the latter to continue its work is in breach of its duty of good faith in the performance of the contract if it does not act on those expectations. [ 131 ] It should be noted that, to date, the duty of coherence has been recognized only in matters of contractual liability. [96] Strateco is seeking to extend it to extra-contractual liability, in a manner akin to the duty of good faith in the pre-contractual phase. [97] [ 132 ] The judge rejected this theory with the following explanation: [ translation ] [516] Even if the doctrine of false expectations is applied, it must be rejected based on the evidence in the case at bar. [517] It is true that in connection with its surface exploration-related projects, Strateco had to make numerous applications for an exemption from the environmental and social impact assessment procedure under

Chapter 2 of the EQA . [518] That said, the prior authorizations or the exemption decisions were examined on their merits in the ordinary course of the file and did not bind the minister as regards the final decision to be rendered. [519] Similarly, the extension of road 167 had long been requested by the local community, even if, in certain respects, it could also benefit Strateco.

[520] Although Strateco saw positive signs for its project to move forward, it was never given assurances that it would obtain its certificate of authorization from the minister . [521] A review of all the evidence shows that the minister never represented to Strateco that the permit would be issued to it without social acceptability . [98] [Emphasis added] [ 133 ] In short, the judge held that the government of Quebec had never provided Strateco with any positive indication allowing it to believe that the certificate of authorization would be granted. [ 134 ] Admittedly, the government of Quebec wanted to develop Northern Quebec through mining exploration and exploitation and, in that context, it showed an interest for the development of uranium mining.

The fact that the government of Quebec declared a moratorium in order to solicit the opinion of the BAPE, however, did not mean that it had abandoned uranium development, or that certificates of authorization would be refused in the future. Indeed, the official press release stated that companies and the government had undertaken a process of defining the framework for uranium development and that the moratorium was intended to enhance the predictability of parameters, interventions and social acceptability. [99] [ 135 ] The government never undertook to issue the authorizations within a specific time frame.

Under these circumstances, the moratorium—which does not aim to prohibit the uranium industry, but rather to regulate its development in response to the concerns expressed by the population—cannot be characterized as an about-face. [ 136 ] In fact, it is abundantly clear from the documents Strateco cited that, for the government, the development of Quebec’s uranium potential presents the challenge of integrating mining activities into the milieu and that it is essential to inform and consult the local populations.

Moreover, the judge found that the government always stated that uranium development was to be carried out [ translation ] “in harmony with the social milieu”. [100] [ 137 ] Lastly, Strateco argues that the government failed in its duty to inform it of the importance it placed on social acceptability.

The judge rejected this argument, stating that [ translation ] “all of the evidence points to the importance of social acceptability for the issuance of the required certificate of authorization”. [101] [ 138 ] Indeed, the evidence shows that uranium is a unique substance that gives rise to many concerns on the part of the public. The EVCOM directive underscores the importance of properly informing the local populations in order to anticipate the factors that could foster the acceptability of the project for these populations.

As mentioned, Strateco had fully grasped the fact that social acceptability was at the heart of the project’s feasibility. [ 139 ] Strateco has failed to demonstrate that the judge committed a palpable and overriding error. Even if the Court were to find that the government did not expressly indicate to Strateco that social acceptability was a material element for the project’s authorization, the evidence reveals that Strateco had sufficient elements to draw that conclusion itself.

FOR THESE REASONS, THE COURT: [ 140 ] DECLARES that the AGQ’s application for the authorization to amend her brief is no longer relevant; [ 141 ] DISMISSES the appeal, with legal costs. JOCELYN F. RANCOURT, J.A. SUZANNE GAGNÉ, J.A. GENEVIÈVE COTNAM, J.A. Mtre Doug Mitchell Mtre Sophie Perron IMK For the appellant Mtre Alexandre Ouellet Mtre Jennifer H. Tremblay LAVOIE ROUSSEAU For the respondent Mtre Jean-François Bertrand JEAN-FRANÇOIS BERTRAND AVOCATS INC. and

Mtre Jessica Orkin Mtre Natai Shelsen GOLDBLATT PARTNERS and Mtre James A. Oreilly, Ad.E. O’REILLY & ASSOCIÉS For the impleaded parties Date of hearing: June 10, 2019