Supreme Court of Canada –  3 S.C.R. 388
Mikisew is a leading case in aboriginal law. The Court applied the consultation criteria established in Haïda and Taku River for the first time, here in a treaty case. The rules surrounding consultation when a treaty is involved were specified.
The honour of the Crown is omnipresent, and the duty to consult is engaged as soon as the Crown knows of a project that could harm Aboriginal peoples’ interests.
The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions. (para. 1 of the decision).
Did the Crown have a duty to consult the Mikisew Cree First Nation?
Yes – because of the honour of the Crown principle, it had to consult the Mikisew before giving its approbation to a project that could infringe their rights (unanimous decision).
Between: Mikisew Cree First Nation
And: the Crown of Canada (Sheila Copps, Minister of Canadian Heritage), and Thebacha Road Society
Interveners: Saskatchewan, Alberta, Big Island Lake Cree Nation, Lesser Slave Lake Indian Regional Council, Treaty 8 First Nations of Alberta, Treaty 8 Tribal Association, Blueberry River First Nations and Assembly of First Nations
In the 1850s and onward, the federal government concluded a series of treaties with First Nations to acquire their lands in Western Canada for settlement in exchange for hunting, trapping and fishing rights on the surrendered territory and the establishment of reserves.
In 1899, Treaty 8 was concluded between the federal government and First Nations, including the Crees of Fort Chipewyan, for lands covering 840,000 square kilometres and encompassing northern Alberta, northern British Columbia, northwestern Saskatchewan and southern Northwest Territories. No tract of lands was set aside for the Crees in order to establish a reserve.
In 1987, a Treaty Land Entitlement Agreement was concluded by both the federal government and the Mikisew Cree First Nation, descendents of the Crees of Fort Chipewyan, for the creation of a new reserve (Peace Point Reserve) for the First Nations on their traditional lands located inside the Wood Buffalo National Park.
In 2001, the federal government approved the construction of a winter road, 118 kilometres long, to increase the access to more remote Aboriginal communities. It would pass through the Mikisew First Nation Reserve, but the approval was given without directly consulting the First Nation. After the Mikisew Cree First Nation opposed the road’s construction, the government decided to change the road’s trajectory by building it around the reserve’s boundaries. Consultations were also omitted in this case. With the new trajectory, the projected road now passed through the traplines of 14 families and the hunting grounds of 100 members. The Mikisew Cree First Nation applied to the Federal Court for an interlocutory injunction against the construction of the said road based on the Crown’s breach of its fiduciary duty to consult.
The Mikisew Cree First Nation: Their treaty rights to trap and hunt were threatened by the road’s construction and they had not been consulted before the Minister’s decision. In these circumstances, the law is clear: the approval should be quashed by the Court.
The Minister of Heritage Canada: Treaty 8 gave them the right to build roads on Crown land once surrendered by the ancestors of the Mikisew Cree First Nation. Therefore, they had not infringed upon the First Nation’s treaty rights to hunt and trap and their obligations to consult and to accommodate had not been set in motion.
Federal Court (2001): The construction of the winter road infringes unjustifiably (as per Sparrow) upon the Mikisew Cree First Nation’s treaty rights. Since these rights are protected under section 35 (1) of the Constitution Act, 1982, the government had a duty to consult the First Nations before making its final decision. The measures put in place by the federal government (public notice and open houses) cannot be considered as a distinct consultation process. The minister’s approval was revoked and an interlocutory injunction was given to halt the road’s construction throughout the proceedings.
Federal Court of Appeal (2004): The minister’s approval is restored by a 2-1 majority because of a Treaty 8 provision allowing the Crown to set aside surrendered lands for various purposes, such as the building of a road. Since there was no infringement upon the treaty, the federal government did not have a duty to consult with the Mikisew Cree First Nation, even though it would be good practice to do so. The dissenting judge found that the Crown’s infringement upon the Mikisew Cree First Nation’s treaty right and its lack of consultation were grounds to revoke its approval for the project.
McLachlin, Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron
The objective of treaty and Aboriginal rights is to reconcile the interests of Aboriginal and non-Aboriginal people alike. Treaty 8’s objective was to open up Western Canada to settlement. The Crown always has notice of treaties’ content.
The treaty must reflect the intentions of both parties, and when one evaluates the intention of a First Nation, a liberal approach must be used because of its inferior position in the negotiation process. In this case, Treaty 8 does permit surrendered lands to be set aside for various purposes, including roads, but this must be done in an honourable manner by the Crown. The Crown’s honour varies according to the infringement upon the treaty rights.
The wording of the provision pertaining to the Crown’s right to set aside surrendered lands for various purposes also included an obligation not to infringe upon the First Nation’s treaty rights. This meant that, if it did so, the Crown had a duty to consult the First Nation concerned beforehand. In this case, there had been studies that proved the negative impact of the road’s construction on the region’s wildlife. Even if the road did take up a small area in the park, it greatly affected the Mikisew Cree First Nation’s hunting and trapping grounds. Hence, the minister did not have the right to act unilaterally in this matter, without even consulting the Mikisew Cree First Nation, because this conduct would go against the Crown’s duty to consult. The procedures put in place by Parks Canada (public notice, open house) were not sufficient in this case for the Crown to carry out its duty to consult because they did not provide a forum for the Mikisew Cree First Nation to express its views on the subject.
The Minister’s approval was revoked, and the case is handed back to him so that he could find a new solution that would be in keeping with the Court’s ruling.
After its win in the Supreme Court, the Mikisew Cree First Nation began to work with the Wood Buffalo National Park’s administration on an agreement pertaining to game regulations that would minimally affect their treaty rights (Mikisew Cree First Nation – Government & Industry Relations, 2009: 3).
In the early 1960s, oil sands were discovered within the Mikisew Cree First Nation’s traditional territory and the Province of Alberta began procedures to develop them. Beginning in 2003, the Mikisew Cree First Nation participated in the consultation process, but their treaty rights, opinions and knowledge were ignored. The First Nation was also concerned about the development’s effects on the area’s ecosystem, its culture, its economic development and the members’ health (Mikisew Cree First Nation, 2007: 3).
In 2005, following the Haida Nation and Taku River decisions, Alberta (like many other provinces) adopted its First Nations Consultation Policy on Land Management and Resource Development and the related Guidelines (Government of Alberta, 2007: 5). Both were rejected by the Assembly of Treaty Chiefs of Treaties 6, 7 and 8 because they considered that the policy and guidelines had been adopted without thoroughly consulting the First Nations involved, and that they did not meet the Supreme Court’s standards in the matter, especially in the early stages of the negotiations (Mikisew Cree First Nation, 2007: 17).
In 2006, the Multi-Stakeholder Committee was formed, after a recommendation made by the Oil Sands Consultation Advisory Group to conduct public consultations with Alberta’s First Nations affected by oil sands development, including the Mikisew Cree First Nation. This process was criticized by the Mikisew Cree First Nation because it felt that the provincial government was not sufficiently taking into account the oil sands development’s impact on the environment. To protest the government’s conduct, the First Nation withdrew from the Cumulative Environmental Management Association (CEMA) (Mikisew Cree First Nation, 2007: 18). In 2007, the Mikisew Cree First Nation also gave the Alberta government its recommendations on managing oil sands development in conformity with Aboriginal interests (Mikisew Cree First Nation, 2009).
In 2009, the Government of Alberta vowed in its throne speech to review its Aboriginal Consultation Policy and Guidelines on Land Management and Resource Development by seeking contributions from the province’s First Nations (Government of Alberta, 2009: 3). The Arthabasca Tribal Council, which the Mikisew Cree First Nation is part of, submitted its Consultation Guidelines to the Government of Alberta (Mikisew Cree First Nation – Government & Industry Relations, 2009: 3). At the end of the year, the Mikisew Cree First Nation was involved in multiple consultation processes with governmental bodies, including British Columbia Hydro’s Proposed Site C on the Peace River, the Alberta–British Columbia Bilateral Water Management Agreement and the Land Use Framework of Alberta (Ibid).
Government of Alberta. 2009. Facing the future with confidence: Speech from the Throne, February 10, 2009, Second Session of the Twenty-Seventh Legislature. Edmonton: Government of Alberta.
Government of Alberta. 2007. Oil Sands Consultations – Aboriginal Consultation Final Report, Appendices – 1. Phase II Aboriginal Consultation Process. On-line. http://mcfngir.org/Government_files/F1_Phase_II_Aboriginal_Consultation_Process.pdf. Consulted January 6, 2010.
Mikisew Cree First Nation. 2007. Response to the Multi-Stakeholder Committee. Phase II. Proposed Options for Strategies and Actions and Submission to the Government of Alberta for the Oil Sands Strategy. On-line. http://mcfngir.org/Documents_files/MCFN%20Response%20to %20OSS%20- %20FINAL.pdf. Consulted January 10, 2009.
Mikisew Cree First Nation – Government & Industry Relations. 2009. Update from George Poitras – Consultation Coordinator, in GIR Membership Update 1 (2): 3.