Media Release

First Nation Seeks Court Review of Ontario's Compliance with Environmental Approval for Hydroelectric Project

Nov 18 2010

Toronto - Today, a First Nation, located in the James Bay lowlands of northeastern Ontario, commenced a judicial review application in Divisional Court alleging that the Ontario Government violated a 1994 approval for a hydroelectric project under the Environmental Assessment Act (EA Act).

The MoCreebec Council of the Cree Nation (MoCreebec), located on Moose Factory Island near Moosonee, launched the court application following the May 2010 issuance of an order by the Minister of the Environment, which purported to alter the terms of a 1994 approval issued under the EA Act to Ontario Power Generation (OPG) for a massive 450 megawatt hydroelectric redevelopment on the Mattagami River.

The 1994 approval contained conditions requiring the creation of a unique Council made up of Ontario and three First Nation governments with decision-making authority to review studies and, where necessary, impose modifications on monitoring and mitigation measures to be performed by OPG to ensure protection of the environment in the region from the adverse effects of the project.

OPG deferred the start of the project until June 2010 but was legally required to give notice of its intention to proceed with the project well in advance of construction to allow time for Ontario to set up the Council with the First Nation governments. At the eleventh hour, just prior to the commencement of construction, the province modified the EA Act approval by establishing an advisory committee instead of the decision-making Council and placed OPG on the committee without prior meaningful consultation with MoCreebec. Under the terms of the 1994 approval, MoCreebec was entitled to be consulted before any such modifications could be made. However, OPG gave notice of the project just days before construction began.

"The 1994 approval allowed the project to proceed without an EA Act hearing after extensive negotiations between the First Nations and Ontario created a rigorous set of terms and conditions, including the Council of governments that was meant to control the conduct of OPG during construction of the project. With the stroke of a pen, and without ever meaningfully engaging MoCreebec as required under the approval, the Minister of the Environment swept away that and other protections under the EA Act approval", said Randy Kapashesit, Chief of MoCreebec.

"Both Ontario and OPG bear responsibility for this state of affairs. Ontario had a legal obligation under the EA Act approval to establish a decision-making Council but didn't do so. Instead, the Minister watered down the requirement to that of a mere advisory body. OPG failed to comply with the requirement to give timely notice of the project, with the result that notice came too late to be useful", said CELA counsel Joseph F. Castrilli, representing MoCreebec.

"The undue delay in providing notice resulted in non-compliance with key terms and conditions in the approval, including timely pre-construction review of environmental studies by even the committee that was set up at the eleventh hour by the Minister", said CELA counsel Ramani Nadarajah, also representing MoCreebec. 

"Not only did Ontario have an obligation under the EA Act to consult with MoCreebec, it also had a constitutional duty to do so. However, it is our position that this important duty was not satisfied in this case", said Chris Reid, a lawyer also representing MoCreebec.

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For further information contact:

Randy Kapashesit - Chief MoCreebec Council - 705-658-4769, ext. 10 < randyk@mocreebec.com >
Joseph F. Castrilli, CELA Counsel - 416-960-2284, ext. 218
Ramani Nadarajah, CELA Counsel - 416-960-2284, ext. 217
Christopher Reid, Barrister & Solicitor - 416-909-4531