Revisiting the historic Kanatewat decision

Summary of Chief Robert Kanatewat et al. v. James Bay Development Corporation et al., [1974] R.P. 38 (Q.S.C.)

16 June 2021

In 1971, the Premier of Quebec, Robert Bourassa, announced the "project of the century": a vast hydroelectric project to be built in Eeyou Istchee, northern Quebec, by harnessing the rivers flowing into James Bay. In the spring of 1972, the Government of Quebec unveiled the details of the La Grande Complex, which aimed to produce approximately 8,000 MW of power with the construction of a series of hydroelectric power stations to be fueled by the La Grande River, which were to be diverted other important rivers. The proposed plan involved the creation of large reservoirs, which would flood vast territories inhabited by the Crees and the Inuit.

The Crees and the Inuit immediately voiced their firm opposition to the project, fearing for their traditional way of life, based on hunting, fishing and trapping.

At that time, Quebec and Canada took the position that Indigenous people held no rights to their territory. The courts had yet to clearly recognize Aboriginal title and rights as enforceable in law. It is in this context that, in April 1972, the Crees and the Inuit initiated proceedings before the Superior Court of Quebec in order to prevent, by way of injunction, the construction of the La Grande Complex.

Over 71 days of hearing that spanned more than a year and a half, Justice Albert Malouf heard 167 witnesses and was presented with 312 exhibits. The evidence of the Crees and the Inuit focused on demonstrating the continued existence of their traditional way of life and their reliance on the James Bay territory and its lands, waters and wildlife. They also emphasized the deep spiritual connection between their way of life, their ancestors and the land, as well as the irreparable damage that the hydroelectric project would cause. In addition to Cree and Inuit hunters and trappers, a wide range of technical experts, including anthropologists, wildlife specialists, ecologists, geographers, climatologists, engineers, economists and government representatives testified before Justice Malouf. 

On November 15, 1973, Justice Albert Malouf rendered an historic 183-page decision in French and in English: Chief Robert Kanatewat et al. v. James Bay Development Corporation et al., [1974] R.P. 38 (Q.S.C.). The decision recognized the existing Indigenous rights of the Crees and Inuit of northern Quebec, the first explicit judicial recognition of Indigenous rights in the history of Canada. In consequence, Justice Malouf granted the Crees and Inuit an interlocutory injunction to halt work on the James Bay Hydroelectric Project.

Justice Malouf analyzed various constitutional texts, most notably the imperial Order-in-Council of 1870 integrating Rupert's Land (northern Quebec) into Canada, the Quebec Boundary Extension Acts of 1898 and 1912, numerous treaties entered into with Indigenous peoples, including the numbered treaties, as well as certain decisions involving Indigenous peoples, such as St. Catherine's Milling, Wesley, Sekyia, Sigeareak and the Supreme Court of Canada decision in Calder that had been rendered at the beginning of the year.

This analysis led Justice Malouf to conclude that Quebec could not develop these lands for settlement without the prior agreement of the Crees and the Inuit, whose rights had never been extinguished. He found that the balance of convenience did not apply because the rights of the Crees and Inuit were clear and certain. The damages and injury suffered by the Crees and the Inuit were irreparable and the continuation of the works would render any final judgment ineffective. The parties should remain in their respective positions until their rights had been finally determined by the judgment on the merits. To this day, this case is cited as establishing the foundational principles for interlocutory injunctions in Quebec.

The Kanatewat decision marked a turning point the relations between Indigenous peoples and governments across Canada: governments could no longer ignore Indigenous people without the risk of their projects being blocked by the courts. The decision was suspended within a week and later overturned on appeal. Nevertheless, it brought about the negotiations that would lead to Canada's first modern Indigenous land claim agreement and treaty, the James Bay and Northern Quebec Agreement (JBNQA), which has been described by the Supreme Court of Canada as "an epic achievement in the ongoing effort to reconcile the rights and interests of Aboriginal peoples and those of non-Aboriginal peoples in Northern Quebec".

The JBNQA was signed on November 11, 1975 between the Grand Council of the Crees, the Northern Quebec Inuit Association (now Makivik Corporation), the Government of Quebec, the James Bay Energy Corporation, the James Bay Development Corporation, the Québec Hydro-Electric Commission (Hydro-Québec) and the Government of Canada.

The JBNQA is a modern, constitutionally protected Indigenous treaty that covers much more than the land treaties of the 19th century. It sets out a unique legal regime applicable to more than 60% of the territory of the Province of Quebec. The specific legal regime deriving from the JBNQA affects aboriginal law, numerous provincial and federal statutes, in addition to the inclusion of aboriginal rights, government obligations and other aspects of a constitutional nature.

This unique legal regime also includes, amongst other things, provisions in regard to lands, Indigenous government by the Cree and Inuit, traditional activities, health, education, the administration of justice and police, the economic and social development of the Crees and the Inuit, the first environmental and social impact assessment and review regime in Canada and an innovative income security program to enable Cree trappers to maintain their traditional way of life.

To this day, the Crees and the Inuit continue to pursue self-government and nation-building on the basis of the nation-to-nation relationships with Canada and Quebec that were established by the JBNQA, which is the direct result of Justice Malouf's historic Kanatewat decision.

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