If you ask the James Bay Cree Nation, they will tell you: the absence of social acceptability could shut down a resource development project.
Social acceptability is a hot topic in resource extraction. These days, most proponents agree that, in order for their projects to operate effectively, they need a social license from the affected population along with their regulatory permit. Look no further than the great Canadian pipeline debate. But extraction companies are vague on what the concept actually means, why it matters and what might happen when they do not have it.
Recently, the Supreme Court of Canada refused leave to appeal the Quebec Court of Appeal’s decision in Ressources Strateco c. Quebec which sheds some light on these questions.
In 2008, Strateco Resources applied for a permit to undertake advanced uranium exploration in Northern Quebec, on the traditional territory of the Cree Nation of Mistissini (CNM). CNM expressed serious concerns about uranium development, including the risks that radioactive and toxic tailings posed for future generations. Dissatisfied with the (lack of) information provided by Strateco, CNM opposed the project on the basis that the long-term impacts of uranium development were inconsistent with Cree values and way-of-life. In 2013, in a move that surprised the mining sector, Quebec refused to authorize the project because it was not “socially acceptable” to the CNM.
Strateco sued Quebec for $200 million, the amount the company had invested in the project. In January 2020, the Court of Appeal dismissed Strateco’s appeal, and upheld the Minister’s decision to refuse the project because it lacked social acceptability. The Supreme Court then refused leave to appeal that decision.
The Court of Appeal’s decision settled the debate surrounding the definition of social acceptability. Strateco had argued that it had done everything it could to obtain social acceptability – it had met with stakeholders, had held community meetings, and had provided (what it considered to be) relevant information. And anyway, it argued that a social license was not a legal requirement for its permit. The Court of Appeal held otherwise. In the Court’s view, pursuant to the James Bay and Northern Quebec Agreement, the treaty signed by the Crees, Quebec and Canada in 1975, the Minister was permitted – and, in fact, required – to consider the Cree Nation’s position on the project. He was therefore permitted to refuse the permit on that basis.
The Court also considered the meaning of social acceptability, holding that it is not simply the process of public participation, but rather, the result of that process. A project either is or is not socially acceptable to the impacted population. In this case, Strateco’s project was not socially acceptable to the CNM – the company had failed to address the concerns raised by CNM and had therefore failed to gain its trust, and the community had concluded that it did not want to assume the long-term risks associated with uranium development on its territory.
So what’s the take-away? There can no longer be any doubt that social acceptability is vital for the success of development projects. Proponents must take the concerns expressed by Indigenous peoples seriously and confront them head on. If not, there goes your social license.
Natai Shelsen and Jessica Orkin represented the Cree Nation of Mistissini, the Cree Nation Government and the Grand Council of the Crees (Eeyou Istchee) at all levels of court in Ressources Strateco c. Quebec.