Grand Council lawyer not impressed by Strateco’s latest ploy in the Matoush project

Strateco Resources has filed suit against the Quebec government in an attempt to overturn its November 7 decision to refuse Strateco’s application for uranium exploration in Mistissini territory, citing Cree opposition to the project. The lawsuit, filed December 5, also demands that the court grant the company authorization to proceed with the project.

Strateco CEO Guy Hébert told the Globe and Mail he believes the law is on the company’s side. “This is public land,” he said. “We have the right in Quebec to mine uranium.”

Lawyer Jessica Orkin, of the Toronto firm Sack Goldblatt Mitchell, represents the Grand Council of the Crees. She said Strateco is fighting losing battle and doesn’t expect much will come of it.

“It’s a pretty tenuous claim that they’re making,” said Orkin. “Guy Hébert’s usual comment is that the law is on their side. We disagree. Strateco seems to believe that because they’ve spent money, they have a right to build a mine.”

Strateco spokespersons frequently repeat the claim the company has already invested $125 million in the Matoush project. But Orkin said investment does not confer rights. “That isn’t how development works in Eeyou Istchee, in light of the James Bay and Northern Quebec Agreement, the treaty rights of the Crees, and the treaty relationship between the Crees and Quebec,” she said.

Orkin argued that Blanchet’s decision “was a lawful exercise at his discretion,” made in accordance with the JBNQA, with consideration for the Cree opposition to the project and Cree concerns about the environmental risks of uranium mining.

It is a mistake, added Orkin, to imagine that the issue is only about exploration, rather than uranium mining as a whole.

“Strateco has tried at every stage to only focus on its exploration project, saying, ‘We only have to look at the risks of the exploration project because there’ll be another study before we build a mine.’ That begs the question: at what point do we look at the risks of a mine? If Strateco’s position at every stage is, ‘We’ve spent so much money, you can’t stop us now,’ then why should we permit them to spend more money before we assess whether a mine is going to be allowed in the territory?”

Strateco’s challenge, said Orkin, is serious, noting that the company’s lawyers have funnelled a lot of time and trouble into their arguments, and the judge to whom it is submitted will have to consider it very carefully.

But Orkin said Strateco’s odds of success in court are “very, very tenuous, at best.”

While it isn’t unusual for a company to challenge a government decision, Orkin said, courts generally tend to support decisions made by elected officials.

“Strateco has to face that deference – just as a basic principle,” said Orkin. “But Strateco’s asking to go a bit further, because they’re not just saying they want to overturn the minister’s decision and have him make a new decision – they’re actually asking the court to step into the shoes of the minister and force the minister to approve the project. They’re trying to take away the minister’s decision-making authority. If you take it as rare that a decision gets overturned, it is exceptionally rare that in overturning a decision, the court will say, ‘We’re not going to let the minister try again to make a proper decision.’”