Result Excerpt

Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) 2005

Case Overview:

In 2000, the federal government approved a winter road running through the Mikisew Cree reserve, without consulting them. When the Mikisew protested, the road was rerouted around the reserve, again without consultation. The Mikisew objected to the 118-km long road based on its direct impact to the 23 square kilometers it would cover, including impacts to fourteen families residing nearby, the traplines of several more families and the moose hunting grounds of nearly 100 hunters. As well, they were concerned about the proposed road’s impact on the area as a whole – keeping the area in a natural state is very important to their ability to teach their traditional culture and skills to the next generation.

The Mikisew Cree are signatories to Treaty 8, and are located in what is now Wood Buffalo National Park. Under Treaty 8, the First Nation has rights to hunt, trap and fish and pursue their traditional way of life. The Crown also has rights, under the treaty, to “take up” lands within the treaty area for various purposes. When the Crown wants to “take up” lands under Treaty 8, as for this proposed road, it must act honourably.


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Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) 2005

Case Overview:

In 2000, the federal government approved a winter road running through the Mikisew Cree reserve, without consulting them. When the Mikisew protested, the road was rerouted around the reserve, again without consultation. The Mikisew objected to the 118-km long road based on its direct impact to the 23 square kilometers it would cover, including impacts to fourteen families residing nearby, the traplines of several more families and the moose hunting grounds of nearly 100 hunters. As well, they were concerned about the proposed road’s impact on the area as a whole – keeping the area in a natural state is very important to their ability to teach their traditional culture and skills to the next generation.

The Mikisew Cree are signatories to Treaty 8, and are located in what is now Wood Buffalo National Park. Under Treaty 8, the First Nation has rights to hunt, trap and fish and pursue their traditional way of life. The Crown also has rights, under the treaty, to “take up” lands within the treaty area for various purposes. When the Crown wants to “take up” lands under Treaty 8, as for this proposed road, it must act honourably. Thus, the Crown has a continuing duty to consult and accommodate Aboriginal peoples when it plans activities that may impact Aboriginal and treaty rights on lands covered by treaties.

 

In this way, the duty to consult is triggered. “The impacts of the proposed road were clear, established, and demonstrably adverse to the continued exercise of the Mikisew hunting and trapping rights over the lands in question.” (2005. R.S.C. p 390).

In this case, because the road was proposed on treaty lands, the duty to consult is at the lower end of the spectrum. The Mikisew Cree were entitled to notice of the project and direct engagement with the Crown, including information about the project which would address Mikisew interests and which the Crown could foresee as having potential negative impacts on their rights (for example, disruption to animal migration). The Crown is required to ask for and listen carefully to Mikisew concerns about the project, and make efforts to reduce negative impacts on rights. A general call for public consultation is not sufficient to fulfill the Crown’s duty to consult and accommodate Aboriginal peoples.

Why is this decision important?

  1. The duty to consult and accommodate was developed through the course of several cases that centred on title claims and the exercise of Aboriginal rights where there are no treaties. The decision in Mikisew Cree confirms that the duty to consult and accommodate applies to treaty rights and on treaty lands.
  2. Justice Binnie refers often to the role of reconciliation in fulfilling the duty to consult and accommodate. He notes that the Crown’s actions in this case, based on an idea that the Crown could act unilaterally as the land was ‘surrendered’, were the “antithesis of reconciliation and mutual respect” (at paragraph 49). This strong language made very clear that the Crown could not ignore its duty to consult and accommodate.
  3. Justice Binnie gives very clear direction on what notice and consultation procedures will and will not fulfill the Crown’s duty to consult, even where the level of consultation required is low.

 

Main Contributor: Dr. Rachel Ariss, University of Ontario Institute of Technology

Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) 2005 SCC 69 (Justice Binnie)