The legal challenge by Strateco Resources to the Quebec government requirement that it obtain “social acceptability” from the Cree before the company’s Matoush uranium development project can proceed highlights a key moment in the evolution of Cree sovereignty over its territory.

As a judicial concept, however, the notion of social acceptability is untested. That was a key observation from a panel discussion on the subject during a conference in Montreal February 8. Hosted by the Coalition pour que le Québec ait meilleure mine, the conference focused on the environmental, social and economic impacts of the mining industry in Quebec.

In response to Strateco’s lawsuit now before Quebec Superior Court, which also began February 8 with a Strateco motion to change the presiding judge, the Grand Council of the Cree has insisted on the social acceptability threshold that was explicitly identified as necessary by COMEX in its report on the project. COMEX approved Strateco’s proposal provided it obtained written consent from the Cree. This is the last regulatory hurdle the company needs to pass in order to start digging in the Otish Mountains north of Mistissini.

Both Mistissini Cree First Nation and the Grand Council categorically reject any uranium development in Eeyou Istchee, and insist that the social acceptability threshold be the ultimate test of whether a project proceed or not in Cree territory.

“The importance of social acceptability of proposed development projects in Eeyou Istchee is an essential aspect of the nation-to-nation relationship between the Cree Nation and Quebec,” said Grand Chief Matthew Coon Come in a press release February 5. “Strateco’s legal action represents a fundamental challenge to this principle, and to our treaty rights, particularly the JBNQA.”

The case will likely create new legal territory, and threatens to be only the opening shot in a long court battle. For one observer, environmental and Aboriginal rights lawyer Jean Baril, the outcome is far from certain because the legal strength of the social acceptability requirement is not clearly defined in Quebec law.

“As a lawyer, life for me is based on what is written in the text of a law,” he told a packed hall at the Québec meilleure mine conference during the panel on social acceptability. “So for me, I don’t know what you’re talking about when you talk about ‘social acceptability.’ I understand the concept, but I don’t know what it means legally because it is not found in any legal text in Quebec.”

Only in the legal principles underlining Quebec’s Sustainable Development Act, adopted in 2006, has Baril found a rough equivalent to requirements for social acceptability.

Among them is the Act’s principle of “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.”

In order to assure the full participation and support of the public, Baril notes however, the following principle is primordial. It provides for “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.”

This is where various Quebec laws become contradictory, Baril pointed out. The problem, he insisted, is that social acceptability on the part of a community affected by a mining project cannot be completely legitimate in the absence of information of the potential environmental, social and economic impacts the project could have on the community. And in Quebec, this access is still severely limited.

For instance, the Quebec Mining Act supersedes provincial access to information statutes by specifying that, “no person has access, before the abandonment, revocation or expiry of the mining concession, licence or lease for which they were made or drawn up, to the maps, reports and other documents contemplated in section 119 or required with respect to a mining right relating to petroleum and natural gas, brine or an underground reservoir.”

A number of other laws prevent the public from learning about potential impacts from resource extraction projects, or the basis upon which they obtained government approval, Baril added. Quebec, therefore, “is far behind Europe and other Canadian provinces on the principle of equal access to information. In Quebec, we do not have equal rights. Businesses and the government keep important information that is not available to the public at large.”

For that reason, public consultation exercises are not undertaken on an equal footing in Quebec. Project promoters are armed with knowledge kept secret from the people their projects will impact the most. Social acceptability in this situation is next to impossible because the public is not allowed to fully judge individual projects on their merits.

For the Cree, the advantage over other Quebec communities rests on their participation in COMEX, two of whose five members must be appointed by the Grand Council, and which is based on the Cree’s nation-to-nation treaty rights negotiated in the JBNQA and reaffirmed in the Paix des Braves of 2002. The question to be determined is whether the power of COMEX’s decisions overrides other Quebec laws that are overwhelmingly weighted in favour of private corporations such as Strateco.

The Cree were to have been represented at the panel on social acceptability, first by Mistissini environmental officer Rod Quinn, then by communications consultant Jean Cardinal. However, the schedule conflict with the beginning of the Strateco court case February 8 precluded Cree participation in the conference.

Dr. Isabelle Gingras, a member of the Québec meilleure mine coalition and the Canadian Association of Physicians for the Environment, observed that even if Strateco pulls out a win before Quebec Superior Court on narrow legal arguments, it risks losing before another important body, the court of public opinion, for its efforts to suppress the requirement for social acceptability.

“Win or lose, this will blow up in the company’s face,” Dr. Gingras said. “As we have seen with the Idle No More movement, the lack of respect for environmental and treaty rights is beginning to snowball into something much bigger.”