Kruger inc. c. Première nation des Betsiamites 2006 QCCA 569 COURT OF APPEAL

Transcription

1 Unofficial English Translation Kruger inc. c. Première nation des Betsiamites 2006 QCCA 569 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC MONTRÉAL REGISTRY No ( ) DATE: April 28, 2006 CORAM: THE HONOURABLE J.J. MICHEL ROBERT C.J.Q. MARC BEAUREGARD J.A. YVES-MARIE MORISSETTE J.A. KRUGER INC. APPELLANT (Defendant) Cross-respondent v. FIRST NATION OF BETSIAMITES BETSIAMITES BAND RAPHAËL PICARD RESPONDENTS (Plaintiffs) Cross-appellants and ATTORNEY GENERAL OF CANADA MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA ATTORNEY GENERAL OF QUÉBEC MINISTER OF NATURAL RESOURCES, WILDLIFE AND PARKS IMPLEADED PARTIES (Defendants) JUDGMENT [1] THE COURT; Ruling on the appellant s appeal from a Superior Court judgment (Montréal, June 17, 1005, Danielle Grenier J.) that issued a safeguard order against the appellant;

2 [2] Having examined the record, heard the parties and taken the case under advisement; [3] For the reasons of the Court, attached: [4] ALLOWS the appeal, with costs, quashes the judgment impugned and dismisses the motion for a safeguard order, also with costs to the appellant, and dismisses, also without costs, the cross-appeal. (s) J.J. MICHEL ROBERT C.J.Q. Mtre. Simon V. Potter Mtre. Marc-André Blanchard Mtre. Ann Bigué Mtre. Alexandre-Philippe Avard MCCARTHY, TÉTRAULT For the appellant Mtre. Marie-Josée Corriveau Mtre. André Binette Mtre. Louise Comtois Mtre. Hélène Rioux and Mtre. Isabelle Lanson JOLI-CŒUR, LACASSE For the respondents (s) MARC BEAUREGARD J.A. (s) YVES-MARIE MORISSETTE J.A. Mtre. Éric R. Gingras For the impleaded parties, AGC and Minister of Indian and Northern Affairs Canada Mtre. Sylvain Ayotte Mtre. Patrice Peltier-Rivest Mtre. Eliane Neveu BERNARD, ROY (Justice-Québec) For the impleaded parties, AGQ and Minister of Natural Resources, Wildlife and Parks Mtre. Pierre-Christian Labeau For the Direction générale des Affaires juridiques et législatives Dates of hearing: November 15 and 18, 2005

3 REASONS OF THE COURT [5] In 1980, negotiations began between the Canadian government, the Québec government and the Conseil Attikamekw-Montagnais (CAM), which represented the Attikamekw and the Innu at the time. 1 [6] In 1994, the Attikamekw and the Innu decided to negotiate separately, and the CAM was dissolved. The Innu then split up with a view to representation by two groups, namely, the Tribal Council of Mamuitun and the Regroupement Mamit Innuat inc., which was replaced in 1995 by the Mamu Pakatatau Mamit Assembly. [7] The Canadian and Québec governments agreed to negotiate individually with three separate entities, that is, the Conseil de la Nation Attikamekw, the Tribal Council of Mamuitun and the Mamu Pakatatau Mamit Assembly. [8] As of early 1997, the Tribal Council of Mamuitun represented the Innu communities of Mashteujatsh, Essipit and Betsiamites. In November 2000, it began representing the Innu community of Nutashkuan as well, so that the Council has been called the Tribal Council of Mamuitun mak Nutashkuan since that date. For its part, the Mamu Pakatatau Mamit Assembly represented the Innu communities of Ekuanitshit, Unamen Shipu and Pakua Shipu. Two other Innu communities were not represented, although they sometimes attended as observers. [9] For the purpose of these reasons, we will refer only to the negotiations between the governments and the Tribal Council of Mamuitun mak Nutashkuan, which, as mentioned earlier, represented four of the nine Innu communities. [10] In 2002, the government negotiators and those of the First Nations of Mamuitun and Nutashkuan initialled the Agreement-in-Principle of General Nature ("APGN"). [11] On March 31, 2004, after more than 20 years of negotiations, the governments on the one hand and the First Nation of Betsiamites, the First Nation of Essipit, the First Nation of Mashteuiatsh and the First Nation of Nutashkuan on the other did not sign a treaty, but ratified the APGN, which, it was hoped, would lead to a treaty two or three years later. [12] The APGN was part of an essentially political negotiating process, as set forth in the preamble: WHEREAS the highest courts have repeatedly asserted that the reconciliation of the legitimate constitutional interests of Aboriginal peoples and of the Crown are more a matter of policy than of law and can only be achieved if the Parties agree to make 1 To describe these negotiations, we have drawn on the sworn written statements by Louise Trépanier, dated January 25 and March 23, 2005.

4 mutual concessions during the negotiating process, which process is essentially political in nature. WHEREAS the Parties, in an effort to promote the attainment of their common objective, agree to pursue their negotiations without any prejudice to their respective legal positions and to ensure that their communications during their negotiations may not be set forth by one Party against the other before the courts. [13] Contrary to the final agreement to be entered into, the stipulations in the APGN did not create any legal obligations between the parties, as set forth in the paragraphs below: This agreement does not create legal obligations binding the Parties, nor does it infringe on the obligations or existing rights of the Parties and shall not be construed so as to abrogate, derogate or recognize any aboriginal, treaty or any other right This Agreement-in-principle was negotiated and concluded without prejudice to the rights of the Parties and nothing in this agreement can be construed as changing the legal situation of either Party or modifying the legal relationship between Canada, Quebec and the First Nations prior to the conclusion of the Treaty and the coming into force of the implementation legislation; [14] The APGN did not stipulate that, before or after the treaty to be signed, the Québec government would no longer be able to develop natural resources in the sector regarding which the Innu claimed to have aboriginal rights. But, in addition to other benefits (investment, compensation for past development), the treaty was to provide for a certain volume of lumber to be made available to each of the four Innu communities. [15] While the APGN had no legal value, it nonetheless laid down transitional measures, which, from the standpoint of morality or honour, the governments were required to adopt although they had no legal obligation to do so. The following were among the transitional measures provided for in the APGN: 19.1 Upon the signature of this agreement, Canada and Quebec, within their respective jurisdictions, shall take the transitional measures considered necessary to prevent any infringement of the rights and interests provided for in this agreement according to the various land allocations and socio-economic development measures agreed upon, and to prepare for the implementation of the Treaty These transitional measures may deal in particular with the prevention of landtransfers, of the awarding of new rights or leases or the carrying on of any other activities which may prejudice the implementation of the provisions of the Treaty". [Emphasis added] [16] After more than 20 years of negotiations, the Innu represented by the Tribal Council of Mamuitun mak Nutashkuan expected that, as soon as the governments signed the

5 APGN, the Québec government would adopt transitional measures to protect the rights that would subsequently be conferred on them under the treaty. [17] On May 4, 2004, the Tribal Council of Mamuitun mak Nutashkuan notified the Québec government in writing that the Council had just learned the government was preparing to completely reorganize the allocation of volumes of lumber, a move that would be prejudicial to them. The Council requested a meeting with two ministers to convince the government not to make long-term allocations of volumes of ligneous matter, which, in the Council's view, would deprive the Innu of the volumes of lumber to which they would be entitled once the treaty was signed. [18] The reorganization referred to in the letter cannot be determined on the basis of the record before us, as constituted. Is it a reference to new timber supply and forest management agreements (hereinafter referred to as CAAFs from the French acronym) as opposed to the CAAFs already granted, or does the Council mean annual permits issued under CAAFs that were already in effect when the APGN was signed and that, pursuant to the transitional measures, would remain in effect? [19] On June 1, 2004, the Council wrote to Québec Minister for Canadian Intergovernmental Affairs and Native Affairs Benoît Pelletier to urge him to promptly take all measures necessary to communicate the relevant information to his representatives and the public service with a view to calling on stakeholders as a whole to [TRANSLATION] "immediately take into account, in departmental policies and directives, all parameters underlying the Agreement-in-Principle of General Nature entered into between the parties". [20] On the same date, the Council also wrote to the federal government, asking it to see to speeding up the negotiation process so that, in particular, the payment of resource development royalties to the First Nations would not be delayed if negotiations did not move forward rapidly. In the letter, the Council lamented that: [TRANSLATION] the land contemplated in the Agreement-in-Principle of General Nature is still being developed without taking into account the parameters and underpinnings of the Agreement, and that little is being done to take into consideration the concerns of the First Nations in this regard. We note that, even after the ratification of the Agreement, the State daily allows interventions on the land that are in direct contradiction of the concepts set forth in the Agreement-in-Principle of General Nature. Lastly, the letter threatened the government with legal action if it did not act in good faith. [21] We note that the Innu who signed the APGN considered it an important document and that they intended to see rapid progress was made in the negotiations with a view to concluding a treaty and, in the meantime, obtaining the transitional measures provided for in the APGN. Once again, however, the record gives no indication of what the letter meant by [TRANSLATION] "interventions on the land that are in direct contradiction of the concepts set forth in the Agreement-in-Principle of General Nature". Thus, we do not know

6 the nature of the provisional measures sought by the Innu and, accordingly, we cannot know whether the governments were in default in that regard. [22] On or around June 11, 2004, the negotiators for all three parties met to take stock of the negotiations and schedule upcoming meetings. [23] On July 5, 6 and 22, 2004, negotiations continued in the form of a joint central panel comprising the Tribal Council of Mamuitun mak Nutashkuan and the Mamu Pakatatau Mamit Assembly. The communities of Uashat mak Mani-Utenam and Matimekush-Lac- John also attended the negotiations, but solely as observers. [24] On July 27, 2004, Raphaël Picard, Chief of the Innu First Nation of Betsiamites, one of the four communities that signed the APGN (a community of 3300 people, 2600 of whom live in Betsiamites, along the Saint Lawrence), wrote to the Québec government and the appellant, Kruger inc., which held a CAAF regarding part of the land to which the Innu claimed to have aboriginal rights. The CAAF concerned Common Area (hereinafter called the "Area"). The last four paragraphs of the letter stated the following: [TRANSLATION] The time is past when new development projects of any nature could be undertaken on the Nitassinan without full participation by the Innu early on in the decisionmaking process. For the Innu, all development projects must be carried out with deep respect for the environment, their culture and way of life, their aspirations and their rights. Kruger's logging operations on our aboriginal land do not currently meet these conditions. In 1997, the company obtained from the Québec government, without consultation of our First Nation, a 100-year timber supply and forest management agreement (CAAF) for Common Area , which is approximately square kilometres in size and located in the very heart of our Nitassinan. The Area encompasses île René-Levasseur, home to one of Québec's largest virgin forests 300-year-old trees that are priceless to the biosphere, the Québec environment and the Innu culture and way of life (Innu Aitun). Kruger is preparing to clear virtually the whole island with the consent of the Québec government, but without our consent, by logging 24 hours a day five days a week, from late May to December, over several decades. In the context of the negotiations that led this year to the signing of the Agreementin-Principle on our comprehensive land claims, the First Nation of Betsiamites was entitled to expect full compliance with the obligation to obtain its consent, now firmly entrenched in Canadian law. The CAAF granted to Kruger by the ministère des Ressources naturelles du Québec in 1997 was granted illegally. All logging operations in Common Area , particularly on île René-Levasseur, must cease immediately, or legal action will soon be taken against Kruger and the Québec government. Henceforward, only full

7 participation by the Innu First Nation of Betsiamites in all decisions concerning the development of this land will be considered. [25] The record does not show whether the Québec government replied to the letters of May 4 and June 1, 2004 sent by the Tribal Council of Mamuitun mak Nutashkuan. The contrary is more likely, which would explain Chief Picard's impatience in his letter of July 27. We note, however, that still no mention was made in the letter of the transitional measures provided for in the APGN that should have been adopted but were not. Instead of demanding that transitional measures be adopted, Chief Picard criticized the government for not consulting the Betsiamites seven years earlier before granting a CAAF to Kruger. For observers like ourselves, Chief Picard seems to have invoked the pretext that the CAAF was granted to Kruger in 1997 without consultation of his community, as a reprisal for the fact that, in his opinion, the APGN was not really followed through on. [26] It is worth reproducing here the complete letter of August 31, 2004 sent by Kruger in response to Chief Picard's letter of July 27, 2004: [TRANSLATION] Dear Chief Picard: I am writing in response to your letter of July 27, addressed to me personally. First of all, allow me to extend my best wishes to you on your re-election. I have to say I was surprised by your letter concerning the logging operations undertaken by Kruger on Île René-Levasseur almost a year ago, in September 2003, under a timber supply and forest management agreement regarding Common Area granted to Kruger in June Our company's policy is to foster the best relations possible with the aboriginal communities on the land where our operations are carried out. Thus, Kruger did everything it could to establish such relations with the Innu First Nation of Betsiamites and encourage the Betsiamites Innu to take part in the economic development generated by its operations in the Côte-Nord region, while respecting the Innu culture and way of life. The construction of a sawmill was announced in the Baie-Comeau region in September Since then, Kruger representatives have met with representatives of the Betsiamites Band Council to discuss the economic benefits of a sawmill in Ragueneau, as well as the socioeconomic benefits of Kruger's forest management activities in the region. In fact, Kruger has worked assiduously to recruit members of your community, and we have employed and still employ Betsiamites Innu workers at our mill in Ragueneau. Kruger has always apprised the Betsiamites Innu of developments in its forest management activities in the region and has maintained ongoing discussions with your community. Further to requests from your community, Kruger introduced measures to harmonize its forest management activities with the traditional activities of the members of your community, in coordination with representatives of the

8 Betsiamites Band Council. Our relations have been forged through many meetings over the years between Kruger, your band council and your community at various levels, and through regular meetings of the issue table, on which sits a representative of the Betsiamites Band Council and a representative of the management council of the Louis-Babel ecological reserve. To date, our relations have been marked by mutual respect, understanding and a spirit of cooperation and goodwill. Kruger carries out its operations on Île René-Levasseur in compliance with the applicable laws, particularly in regard to the environment, and is concerned about sustained yield and sustainable development. Kruger opted for a mosaic-type spatial cutting pattern with strict measures for protecting regeneration and soils. Kruger also undertook to conserve exceptional forest ecosystems. In addition, nearly one quarter of Île René-Levasseur has been excluded from the forest management activities, either through the creation of the Louis-Babel ecological reserve in 1991 or, more recently, through the establishment, with Kruger's collaboration, of the Baie-Memory protected area. Your letter is the first sign since 1995 of any unease in your community over Kruger's activities in the region. Accordingly, I have given special attention to it. I want Kruger to continue to maintain excellent relations with you, your band council and your community. It matters to me that Kruger understand the concerns of the Betsiamites Innu regarding the company's activities on Île-René-Levasseur. I have asked Daniel Tardif, Senior Vice-President, Forest and Wood Products Division, in whom I have complete confidence, to be my representative with you in this regard. I understand that your community is negotiating comprehensive land claims with the Québec and Canadian governments, and your letter raises matters that are under their respective jurisdictions. As I am sure you understand, it is not up to us to handle these matters. However, I assure you that Kruger will continue to be available to collaborate with the government authorities and the Betsiamites Innu, as we have done in the past, in order to maintain harmonious relations between all stakeholders. Mr. Tardif will also represent me in this regard as needed. Yours truly, [27] On September 2, 2004, Minister Pelletier spoke to the press. He indicated that he wanted to take into account the concerns of both the Innu and the sector's non-native population, which also has demands. He expressed the opinion that a consensus had to be reached if the "post-treaty" were to be viable. He added that, at the time, there was no question of applying the clauses provided for in the APGN, which would be executory only once the treaty was signed, but that that should not prevent the Native communities from continuing to make demands of a political nature. [28] Thus, it would seem that the respondents and the Québec government misunderstood one another. The respondents contended that they were entitled to the transitional measures stipulated in the APGN and that the measures were not adopted by

9 the Québec government, whereas Minister Pelletier appears to suggest that the respondents wanted the treaty provided for in the APGN to be applied before the treaty was signed. [29] It is unfortunate that Minister Pelletier and Chief Picard did not meet to try, in good faith, to resolve the dispute rationally. We cannot believe that, after more than 20 years of negotiations and four months after signing the APGN, the minister and the chief were not able to at least establish what they disagreed on, which we still are in the dark about. [30] On September 16, 2004, the Betsiamites had their attorney send a letter of formal notice to the Québec government and Kruger. The attorney reiterated that his clients had not been consulted prior to the government's granting the CAAF to Kruger in 1997 and that, despite Chief Picard's letter of July 27, 2004, Kruger continued to carry out its operations. The formal notice also pointed out that the transitional measures of the March 31, 2004 APGN stated that the government had an obligation to prevent any activities [TRANSLATION] "which may prejudice the implementation of the provisions of the Treaty". But those activities were not described. Was it a reference to Kruger's activities the lease for which was not called into question by the transitional measures? The letter added that the APGN [TRANSLATION] "also stipulated that, for forestry purposes, cubic metres of lumber [would] be made available to the Betsiamites Innu". The letter further stated that the Innu questioned the Québec government's good faith following Minister Pelletier's press conference of September 2, In conclusion, the attorneys demanded that Kruger cease immediately all activities on the land covered by the CAAF, namely, in the Area, or the respondents would institute proceedings against the governments and Kruger. [31] On September 21, 2004, Gilbert Dominique, Chief of the Conseil des Montagnais du Lac St-Jean (the Mashteuiatsh Innu), wrote a letter to Minister Pelletier criticizing the latter for not answering his letters of May 4 and June 1, 2004, as well as the government for continuing to act as if the APGN did not exist. He urged the government to correct the situation but, contrary to the respondents, he did not threaten the Québec government with legal action. He blamed the government for: [TRANSLATION] Carrying out a major reorganization of the allocation of volumes of lumber for forest cutting purposes The reigning silence in this regard does little to assure us that, in this process, the government's commitment regarding the m 3 in volume covered by the Agreement-in-Principle of General Nature will be taken into account. [32] We still do not know what this reorganization is or whether, in going through with it, the government violated its obligations under the transitional measures. We note that Chief Dominique feared the reorganization would affect the eventual right of the Innu to obtain cubic metres of lumber. Was there no one at the department who could have reassured Chief Dominique or, at least, told him he was mistaken? The minister's failure to reply to the letters of May 4 and June 1, 2004, and the insensitive public comment that the APGN had no legal value were perhaps not compatible with the principle of "the honour of

10 the Crown", recognized at the time in R. v. Badger, [1996] 1 S.C.R. 771 and R. v. Marshall, [1999] 3 S.C.R. 456, and recently reiterated by the Supreme Court in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R [33] On September 29, 2004, Chief Picard published a press release giving a final warning to the government and Kruger before the Betsiamites instituted legal proceedings: Kruger was to cease operations notably on Île René-Levasseur. [34] Kruger, at least, wanted to settle the dispute. Thus, on October 1, 2004, the company requested a meeting with the Betsiamites Band Council [TRANSLATION] "to discuss, at the highest level, Kruger's logging operations in the Côte-Nord region and your community's concerns". [35] In the meantime, talks with a view to a treaty continued on September 1 and 2, [36] On October 5, 2004, Kruger's attorneys replied to the formal notice of September 16. They stated that Kruger, its employees and their families were being held hostage because Kruger had no control over the negotiations, and that Kruger, its employees and their families would suffer prejudice if Kruger were forced to cease operations. The attorneys reiterated Kruger's desire to continue to maintain harmonious relations with the Betsiamites. [37] On the same date, a meeting was held between Kruger and the Betsiamites, but it did not yield results. On October 7, 2004, Kruger wrote to Chief Picard to express its disappointment that the company and the Betsiamites had not been able to reach an agreement, and to reiterate that [TRANSLATION] "we are open to any additional process for achieving harmonization that may be proposed by your community". [38] It should be mentioned that the Betsiamites had withdrawn the mandate from the people who, until then, had represented them on an issue table concerning the activities in the Common Area. [39] In a letter dated October 12, 2004, Chief Picard confirmed that the Betsiamites did not wish to enter into a dialogue with Kruger unless the company first ceased operations on Île René-Levasseur. [40] In its letter of October 19, 2004 to Chief Picard, Kruger explained that it could not cease operations without sustaining irreparable injury and that it was still willing to try to meet the demands of the Betsiamites. [41] On October 27, 2004, the Betsiamites served a motion introductive of suit in order to obtain a permanent injunction enjoing Kruger and the Québec government to cease all logging activities, not only on Île René-Levasseur, but in the Area as well. [42] In a press release dated October 29, 2004, Minister Pelletier announced that the Québec government would henceforward require joint participation by the nine Innu communities in the negotiations to conclude a treaty.

11 [43] On November 2, 2004, Chief Picard wrote to Minister Pelletier to tell him that the Betsiamites had taken cognizance of his statement and that they were disappointed and surprised by the government's attempt to impose a new negotiating framework in midprocess. [44] Subsequently, talks with a view to signing a treaty continued on November 4 and 5, and December 6 and 7, We do not know whether the respondents pulled out of the talks and, if they did, on what date [45] Where a party claims to have the right to prevent a person from performing an act, the party can obtain an injunction. [46] Where the party sustains irreparable injury and establishes the appearance of right, and where the theory of the relative balance of convenience is in the party's favour, the party can try to obtain an interlocutory injunction. [47] In an urgent situation, the party can even try to obtain a 10-day provisional injunction or a safeguard order valid until a specific date or, where necessary, until a judge seized of the motion for an interlocutory injunction rules otherwise. [48] In Haida supra, the Supreme Court noted that, because of their requirements, the aforementioned proceedings might not give satisfaction to aboriginal peoples if there is apparent violation of their aboriginal title or rights. Consequently, the Supreme Court taught that, where a government has knowledge, real or constructive, of the potential existence of aboriginal title or right and contemplates action of a nature to adversely affect the title or right, the government has a duty to consult the aboriginal people concerned and, if necessary, to adopt accommodation measures. [49] As a result, in these circumstances, where a government does not consult an aboriginal people, the latter has other recourse (call it "the Haida motion") in addition to the recourse options of final injunction, interlocutory injunction, provisional injunction and safeguard order. In other words, subject to and independent of its injunction proceedings, an aboriginal people contending that it was not consulted or did not obtain the appropriate accommodation measures can file a Haida motion to have the court declare a failure to consult or a lack of adequate accommodation measures, and to obtain remedies. Thus, in a given case, even before the court hears the parties on the motion for a final injunction or the motion for an interlocutory injunction, it can rule that the aboriginal people should have been consulted, determine the accommodation measures that should have been taken and order remedies. The judgment on this special motion has nothing to do with the judgments that will eventually be rendered on the motion for an interlocutory injunction or the motion for a final injunction. If the final judgment were to declare that the aboriginal people did not have aboriginal title or right, it would not affect the judgment to be rendered on the special motion. The judgment allowing the Haida motion would have been correctly handed down on the appearance of aboriginal title or right and in application of the government's duty of honour toward the aboriginal people.

12 [50] Since the Haida motion is in fact an interlocutory proceeding, in theory nothing can prevent the petitioner from seeking a safeguard order that would be in effect until the court could hear the motion, but the situation would have to be an extremely urgent one. [51] This latter criterion extreme urgency is found in judicial law: in Québec, it is an extension of article 46 of the Code of Civil Procedure and stems from the courts' construction of that provision. Subject to Haida, nothing in the published jurisprudence can be used to contend that rules of procedure different from those enshrined in general law come into play in the case of a dispute bearing on a claim for aboriginal title or right. Mary Macaulay wrote the following on this question (Aboriginal and Treaty Rights Practice, Thomson Carswell at 2-2): What is the appropriate approach to pleadings in relation to claims for aboriginal and treaty rights given their unique nature and their particular difficulty? Should courts take a less technical approach to the Rules of Court governing pleadings given the unique nature of these cases (i.e., as they do with the rules of evidence )? The answer to this question is suggested by two cases decided by the Supreme Court of Canada. Specifically, in Calder v. British Columbia (Attorney General) and Delgamuukw v. British Columbia, appeals brought by aboriginal groups were dismissed, inter alia, on grounds of defective pleadings. The disposition of these two appeals appears to suggest that courts will apply the Rules of Court governing pleadings in action involving the assertion of aboriginal and treaty rights in the same way as in any other civil case. [Emphasis added] -0 - [52] As mentioned earlier, the respondents served a proceeding on October 27, 2004, in the form of a motion introductive of suit, on the appellant and the impleaded parties, with a view to obtaining a final injunction. The proceeding contained principal and subsidiary conclusions. [53] The principal conclusions urged the court to: (1) declare that the respondents had aboriginal rights, specifically aboriginal title, to the Area; (2) declare that the National Assembly of Québec did not have jurisdiction to legislate regarding that land; (3) declare that the Forest Act and the Regulation respecting forest management plans and reports are inoperative in regard to the land; (4) declare null the CAAF granted to Kruger and all other permits issued relative to the CAAF; (5) prohibit the minister from granting CAAFs in regard to the land; (6) enjoin Kruger to cease operations on the land and to leave the land within 15 days of the judgment;

13 (7) declare that the governments did not adopt the transitional measures provided for in the APGN and, consequently, enjoin them to take the measures. [54] By the way, the last conclusion strikes us as rather strange because the respondents demanded that the Québec government adopt transitional measures that would remain in effect until a treaty was signed, whereas their own proceeding took for granted that such a treaty would never be signed. [55] In the subsidiary conclusions of their proceeding, the respondents considered the eventuality of the operativeness of the Forest Act and the Regulation respecting forest management plans and reports. Consequently, they urged the court to: (1) declare that they had the right to be consulted before the Québec government granted the CAAF to Kruger; (2) declare that the respondents could object to the granting of the CAAF; (3) declare that the respondents were not consulted and that their consent to the granting of the CAAF was not obtained; (4) declare that the Canadian government failed to protect the rights and interests of the respondents on and in the Area; (5) declarer that the governments and Kruger failed in their fiduciary obligations to them; Principal conclusions 4, 5, 6 and 7 were also included in the subsidiary conclusions. [56] Haida supra was deposited on November 18, In January 2005, the respondents served a motion for an interlocutory injunction and a safeguard order on Kruger and the impleaded parties. The proceeding was not submitted to us; we have only the amended text that was filed the following month. [57] In the part of the proceeding concerning the interlocutory judgment, the respondents did not ask the court to declare that only the Parliament of Canada had jurisdiction to legislate in the field in regard to the Area. But the respondents did ask the court to declare, in an interlocutory manner, that they had a prima facie aboriginal right to the Area or aboriginal rights tied to the Area, and that the impleaded parties failed to consult them prior to granting the CAAF to Kruger and renewing it in September 2002 and May Moreover, the respondents again asked the court to declare that the governments failed to meet their obligations stipulated in the APGN regarding transitional measures. In their conclusions, they asked the court to render an interlocutory judgment enjoining Kruger to cease all forms of logging in the Area and clear out within 15 days after the judgment to be rendered. They also urged the court to enjoin the Québec government not to grant any more permits to carry out logging operations in the Area or even annual permits to Kruger for the operation of sawmills where lumber from the Area was processed. [58] In our view, that motion for an interlocutory judgment consisted, at least in part, of a Haida motion: independently of the fate of the motion for a final injunction, the respondents

14 were seeking, in an interlocutory manner, to have the court punitively sanction the fact that they were not consulted prior to the granting of the CAAF to Kruger in [59] On February 16, 2005, Cohen J., with the parties' consent, ruled that the motion for an interlocutory injunction would be heard at the same time as the motion for a final injunction. That strikes us as strange, because the essence of an interlocutory injunction is to resolve a situation that exists between the service of a motion for a final injunction and the rendering of the final judgment on the motion. [60] Given the circumstances, the respondents could be thought to have waived having the court declare, by interlocutory judgment, that the Québec government should have consulted them in 1997, and to have thereby waived obtaining a punitive court sanction in that regard. But the same day, Cohen J. ordered that the motion for a safeguard order be heard on May 17, As mentioned earlier, there was in theory nothing to prevent the respondents, whose Haida motion could not be heard immediately, from seeking a safeguard order to have the court immediately and provisionally declare that the Québec government failed to consult them and to obtain one or more remedies. [61] The part of the motion seeking a safeguard order included the following conclusions: (1) declare that the respondents were not consulted prior to the granting of the CAAF in 1997 and its renewals; (2) order Kruger to immediately cease operations in the Area and not to resume them until a judgment was rendered on the motion for an interlocutory injunction; (3) order the Québec government to suspend the issuance of a annual forest management permit to Kruger regarding the Area. [62] The situation was a little unusual in that a safeguard order is generally handed down when it is a matter of extreme urgency to obtain a remedy, urgent in its own right, sought in a motion for an interlocutory injunction. In this case, however, the filing of the motion for an interlocutory injunction was continued, by consent, so that it could be instituted at the same time as the motion for a final injunction. [63] Given that the motion for an interlocutory injunction would be heard only at the same time as the motion for a final injunction, that the hearing required in conjunction with the two motions would take several months and that, in all likelihood, the judgment on the motion for an interlocutory injunction would be rendered simultaneously with the judgment on the final injunction, the motion for a safeguard order would become a motion for an interlocutory injunction when the filing of the motion for an interlocutory injunction was continued. [64] But the respondents make a point of not conceding that. They do not contend that their motion for a safeguard order was a Haida motion that the appellant could have fully contested by submitting all the evidence it wished and invoking all manner of arguments against the motion. In the statement they submitted to us, the respondents effectively indicate that it was not a Haida motion that was before the Superior Court, but a motion for a safeguard order until judgment was rendered on their Haida motion. Thus, they contend

15 that they could have obtained the remedy sought on the sole basis of the allegations in their motion, the sworn written statements and certain examinations, without it being necessary for the Court to allow the appellant to submit additional evidence, cross-examine the affiants or file an actual contestation regarding the conclusions sought by the respondents. Thus, the respondents argue the following in paragraphs 32 and 33 of their statement: [TRANSLATION] At the stage of the application for a safeguard order, Grenier J. should have examined the evidence available at the time in order to rule on the respondents' application. The trial judge's calling that the evidence [TRANSLATION] "complete" is, in fact, not relevant. Had she merely stated that the evidence showed a clear right or an appearance of right, the result would have been the same and an order to cease logging would have been issued. [65] Thus, we reiterate that the proceeding that gave rise to the Superior Court judgment was not a Haida motion, but a motion for a safeguard order with a view to immediately obtaining that which is sought by a Haida motion. After reading the Superior Court judgment, we fully believe that this is what the judge also understood, since she considered the urgency of the situation and the balance of convenience, whereas, assuming we properly grasp Haida, a Haida motion is precisely a means of remedying a failure to consult, without the obligation to consider injury or the balance of convenience. [66] However, it is strange to note that, seized of a motion for a safeguard order, the judge in fact explicitly chose to declare, by final and definitive judgment, that the respondents should have been consulted, but were not. Although she indicated that her judgment would be in force only until judgment on the interlocutory injunction was rendered, she stated that the specific question of the obligation to consult and the absence of consultation no longer needed to be ruled on by the judge who would be hearing the motion for an interlocutory judgment, which, as we saw earlier, contained conclusions other than those of a Haida motion. Hence, in reality, the judge allowed a Haida motion simply by issuing a safeguard order. [67] The appellant obviously submits that it thereby sustained real injury, as the Superior Court decided that the judge who would be ruling on the interlocutory injunction would have to take it for granted that the respondents should have been consulted, but were not. It did so without giving the appellant the opportunity to fully contest the Haida motion, and on the sole basis of the allegations in the motion for a safeguard order and the sworn written statements, particularly three statements filed the day before the proceeding was heard, without the appellant having had a practical opportunity to cross-examine the affiants of the three statements. Not only did the Superior Court decide the fate of the Haida motion, but, as a remedy, it also imposed the severest sanction, namely, the cessation of Kruger's operations on Île René-Levasseur. [68] We accept the appellant's proposition. The judge could not, by means of a safeguard order, allow in practice the part of the motion for an interlocutory injunction that constituted

16 a Haida motion, particularly without allowing the appellant to fully contest the Haida motion. All that was before the judge was a motion for a safeguard order, a proceeding that is allowed only in a case of extreme urgency in which irreparable harm is imminent. [69] In the circumstances, it is not up to us, nor do we have a duty, to examine whether the respondents would have been entitled to their conclusions had they brought a Haida motion or had the appellant fully contested such a motion. Thus, in accordance with the wishes of the respondents, we will limit ourselves to determining whether the judgment in first instance could have been rendered in conjunction with a safeguard order. [70] To start with, it is clear that the Superior Court judge could not declare that the respondents should have been consulted but were not, without the judge seized of the motion for an interlocutory injunction having the right to rule otherwise. [71] What remains to be decided is whether the respondents could obtain that Kruger cease operations in the Area [TRANSLATION] as proposed by the respondents in their cross-appeal", or on Île René-Levasseur, as ruled by the judge, until such time as a judge undertook to examine the motion for an interlocutory injunction. [72] On reading the part of the respondents' proceeding that constituted a motion for a safeguard order, one notes that a situation of extreme urgency was not involved: the motion was filed in May 2005, whereas the situation at issue dates back to It seems to us that, after waiting so long, the respondents could have opted not to continue the presentation of their motion for an interlocutory injunction to the following December, choosing instead to present the motion relatively rapidly and enable the appellant to make a full and complete defence. [73] Neither the respondents' motion for a safeguard order nor the sworn written statements they filed show that, without a safeguard order, the respondents would have sustained irreparable harm while awaiting the judgment on the Haida motion or that the relative balance of convenience demanded the issuance of a safeguard order. As regards the reparable nature of the harm sustained by the respondents, it is public knowledge that, in December 2005, the respondents brought an action against the Québec government for a few billion dollars to compensate them for the amounts lost through all of the CAAFs granted by the government to various logging companies in the sector. Moreover, it seems evident that the safeguard order was not really sought because Kruger prevented the respondents from carrying out their own activities. See in this regard Exhibit DT-35, according to which, on February 14, 2005, Chief Picard said to Kruger's workers that the respondents wanted to enter into a partnership with them to replace Kruger. [74] On the subject of consultation within the framework of the motion for a safeguard order, we will say only the following. [75] Despite the doctrine whereby a court does not make, but merely reveals, new law, it nonetheless remains that the law, in regard to aboriginal peoples, is constantly evolving. In 1995, when Kruger announced its project, and, in 1997, when the CAAF was granted to Kruger, Haida had not yet been deposited and not all jurists knew the ins and outs of a provincial government's duty to formally consult an aboriginal community claiming

17 aboriginal title or rights to land. We would be surprised to learn that, at the time, the Québec government realized it had a duty to consult the Innu more formally than it did, and that the Innu knew they had a right to be consulted more formally than they were. That is the context in which, in this case, the Québec government's conduct must be assessed in regard to the respondents as of 1997 and the consequences of a lack of formal consultation must be determined. [76] It should also be said that, in 1997, negotiations between the governments and the Mamuitun Tribal Council were ongoing and that, subject to all the contentions of the parties, there was no question of the Québec government's ceasing to develop the natural resources on its land, which are the basis of its economy, for the benefit of all Quebecers and the respondents themselves. The Innu hoped to receive various benefits and compensation, but, during the negotiations, they did not give consideration to whether they were able, or wanted, to exercise a right of veto on logging. [77] It should be recalled that the government's duty to consult the aboriginal peoples and find adequate accommodations does not give the aboriginal peoples a right of veto on the possible uses of the disputed land. As McLachlin C.J. wrote in the unanimous reasons in Haida at 535: This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal consent spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take. [78] The respondents did not file at the outset sworn written statements describing everything that happened between 1995 and today, to support their allegation that they had not been consulted before the CAAF was granted to Kruger. [79] Conversely, the appellant filed several sworn written statements describing in detail all contact that had taken place between the parties since In addition, Kruger filed a table listing in chronological order the events, and the contact between the parties, from September 29, 1995 to June 10, [80] The table and the sworn written statements to which it refers show that, subject to their central claim that they hold aboriginal title and rights to the Area, the respondents never manifested, between 1995 and 2004, their opposition to Kruger's substantial investments or its operations under the CAAF granted to the company. It may even be thought, subject to the same central claim, that the respondents were not unhappy that a number of them would find work at Kruger. [81] The sworn written statements of the following affiants in particular should be read: Jean-François Mérette, Denis Brière, Michel Lessard, Daniel Tardif and Langis Beaulieu. Paragraphs 11 to 41 of Denis Brière's sworn written statement are of special interest. [82] It is helpful to cite in full Chief René Simon's letter of April 16, 1997, written before the CAAF was granted to Kruger:

18 [TRANSLATION] Mr. Denis Brière Vice-President and General Manager Kruger Inc. Subject: Meeting between Kruger and the Betsiamites Band Council with a view to examining the possibility of a partnership Dear Mr. Brière: The Betsiamites Band Council wishes to thank you for the various meetings we have already had together and for the ties that have been forged since March 13, when the band informed you of its interest in a partnership. With a view to strengthening its relations with your company, the council proposes that a meeting be set up to begin preliminary discussions ultimately aimed at drafting a memorandum of understanding. We are looking to conclude a flexible, open-ended agreement that will meet the respective directions and wishes of the parties. Thus, to lay the groundwork for promising collaboration between us, we hereby propose an agenda for a meeting that could be scheduled for late April or early May. We can contact each other shortly to set a date and place for the meeting. We hope that you will be amenable to our suggestion for a meeting. In peace and friendship, [83] The conclusion of a document dated September 26, 1997, entitled [TRANSLATION] "Comments of the Betsiamites Band Council", should also be taken into account: [TRANSLATION] Obviously, the development project is very important to the economy of the Côte- Nord region. The project concerns the aboriginal land of the Betsiamites land to which the Montagnais have aboriginal rights and which is currently the object of negotiations with the federal and provincial governments. One of the crucial issues in the negotiations is the involvement of the Montagnais in projects to develop land and resources. Partnership and participation in all forms of sustainable development are key to enabling the Montagnais to break free of economic dependency and achieve a measure of autonomy. The initial meetings between the band council and Kruger suggested a promising outlook for jobs and collaboration. However, there is still much work to be done. Both parties have yet to make a formal commitment to their involvement. The Montagnais have high expectations for the development project, which so far as yielded only marginal benefits.