Mikisew Cree First Nation v. Governor General in Council et al., 2014 FC 1244

• Judge: Hughes, J.
• Court: Federal Court (Canada)
• Case Date: December 19, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2014 FC 1244;(2014), 470 F.T.R. 243 (FC)

Mikisew Cree First Nation v. Governor General (2014), 470 F.T.R. 243 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JA.030

Chief Steve Courtoreille on behalf of himself and the members of Mikisew Cree First Nation (applicant) v. The Governor General in Council, Minister of Aboriginal Affairs and Northern Development, Minister of Finance, Minister of the Environment, Minister of Fisheries and Oceans, Minister of Transport, and Minister of Natural Resources (respondents)

(T-43-13; 2014 FC 1244)

Indexed As: Mikisew Cree First Nation v. Governor General in Council et al.

Federal Court

Hughes, J.

December 19, 2014.

Summary:

The federal Minister of Finance introduced two Omnibus Bills which, inter alia, made significant changes to Canada's environmental laws. The effect of the amendments was arguably to reduce the number of bodies of water within Canada which were required to be monitored by federal officials thereby affecting fishing, trapping and navigation. Some of these waters were located within the Mikisew Cree First Nation's Treaty No. 8 territory. Accordingly, the Mikisew, instituted proceedings, seeking various forms of declaratory relief relating to the duty of the federal Ministers and the Governor General in Council before the legislation was introduced in Parliament.

The Federal Court granted declaratory relief. The court declared, inter alia, that the Crown had, in the circumstances of this case, a duty to consult with the Mikisew at the time that each of the Omnibus Bills were introduced into Parliament.

Courts - Topic 4041

Federal Court of Canada - Jurisdiction - Trial Division - Claims against senate, Prime Minister, Crown Ministers, etc. - The federal Minister of Finance introduced two Omnibus Bills which, inter alia, made significant changes to Canada's environmental laws - A first nation instituted proceedings, seeking various forms of declaratory relief relating to the process that the Ministers of the Crown undertook before the legislation had been drafted and presented to Parliament - At issue was whether s. 2(2) of the Federal Courts Act precluded the proceedings - Section 2(2) provided that the expression "federal Board commission or other tribunal" did not include the Senate, the House of Commons any committee or member of either house, etc. - The Federal Court held that these proceedings were not precluded by s. 2(2) - See paragraphs 20 to 22.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The federal Minister of Finance introduced two Omnibus Bills which, inter alia, made significant changes to Canada's environmental laws - A first nation instituted proceedings, seeking various forms of declaratory relief relating to the process that the Ministers of the Crown undertook before the legislation had been drafted and presented to Parliament - At issue was whether the proceedings presented a justiciable issue - The Federal Court held that, in the circumstances of this case, there was a sufficient legal basis for the court to review the matter judicially: namely, whether the legal and enforceable duty to consult applied to the decisions at issue - It was not premature to consider the matter - See paragraphs 23 to 29.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The federal Minister of Finance introduced two Omnibus Bills which made significant changes to Canada's environmental laws - A first nation alleged that the changes created a potential risk to their Treaty 8 fishing, hunting and trapping rights - The first nation sought declaratory relief relating to the law-making process and the duty to consult - The Federal Court held that pursuant to the principle of separation of powers, the court could not intervene into the law-making process to impose procedural constraints upon the Ministers of the Crown acting in their legislative capacity - However, a duty to consult arose in the circumstances of this case - That duty was triggered upon the introduction of each of the Omnibus Bills in Parliament - The extent of that duty was for the Crown to give notice to the first nation and a reasonable opportunity to make submissions - A declaration to that effect was issued - See paragraphs 30 to 112.

Cases Noticed:

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 9].

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., [2010] 2 S.C.R. 650; 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, refd to. [para. 9].

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

Air Canada v. Toronto Port Authority et al., [2013] 3 F.C.R. 605; 426 N.R. 131; 2011 FCA 347, refd to. [para. 17].

R. v. Russel (W.I.), [2013] 3 S.C.R. 3; 447 N.R. 111; 308 O.A.C. 347; 2013 SCC 43, refd to. [para. 23].

Ontario v. Criminal Lawyers' Association of Ontario - see R. v. Russel (W.I.).

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 25].

Coldwater Indian Band et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., [2014] F.C.A. 277; 466 N.R. 145, refd to. [para. 28].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, refd to. [para. 37].

Manitoba Métis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623; 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 2013 SCC 14, refd to. [para. 39].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 39].

Little Salmon/Carmacks First Nation et al. v. Beckman et al., [2010] 3 S.C.R. 103; 408 N.R. 281; 295 B.C.A.C. 1; 501 W.A.C. 1; 2010 SCC 53, refd to. [para. 39].

William v. British Columbia et al. (2014), 459 N.R. 287; 356 B.C.A.C. 1; 610 W.A.C. 1; 374 D.L.R.(4th) 1; 2014 SCC 44, refd to. [para. 47].

Tsilhqot'in Nation v. British Columbia - see William v. British Columbia et al.

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 42].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 43].

R. v. Lefthand (2007), 77 Alta. L.R.(4th) 203; 2007 ABCA 206, refd to. [para. 44].

Ross River Dena Council v. Yukon et al. (2012), 331 B.C.A.C. 234; 565 W.A.C. 234; 358 D.L.R.(4th) 100; 2012 YKCA 14, leave to appeal dismissed (2013), 466 N.R. 384 (S.C.C.), refd to. [para. 46].

Wells v. Newfoundland and Board of Commissioners of Public Utilities (Nfld.), [1999] 3 S.C.R. 199; 245 N.R. 275; 180 Nfld. & P.E.I.R. 269; 548 A.P.R. 269, refd to. [para. 49].

Penikett v. Canada (1987), 45 D.L.R.(4th) 108 (B.C.C.A.), refd to. [para. 49].

Native Women's Association of Canada et al. v. Canada et al., [1993] 1 F.C. 171; 57 F.T.R. 115 (T.D.), refd to. [para. 49].

Keewatin et al. v. Ontario (Minister of Natural Resources) et al. (2014), 460 N.R. 67; 320 O.A.C. 102; 372 D.L.R.(4th) 385; 2014 SCC 48, refd to. [para. 50].

Grassy Narrows First Nation v. Ontario (Natural Resources) - see Keewatin et al. v. Ontario (Minister of Natural Resources) et al.

Native Women's Association of Canada et al. v. Canada et al., [1992] 3 F.C. 192; 146 N.R. 40; 95 D.L.R.(4th) 106 (F.C.A.), refd to. [para. 59].

Native Women's Association of Canada et al. v. Canada et al., [1994] 3 S.C.R. 627; 173 N.R. 241, refd to. [para. 60].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 71].

Quebec (Attorney General) v. Fraser (1906), 37 S.C.R. 577, refd to. [para. 88].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 106].

Mohawks of the Bay of Quinte v. Canada (Minister of Indian Affairs and Northern Development) (2013), 434 F.T.R. 241; 2013 FC 669, refd to. [para. 108].

Statutes Noticed:

Constitution Act, 1982, sect. 35 [para. 38].

Federal Courts Act, R.S.C 1985, c. F-7, sect. 2(1), sect. 2(2) [para. 20].

Counsel:

Robert Janes and Karey Brooks, for the applicant;

Dale Yurka, Janelle Koch and Jodi McFetridge, for the respondents.

Solicitors of Record:

Janes Freedman Kyle Law Corporation, Victoria, British Columbia, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This decision was heard in Edmonton, Alberta, on December 8, 9 and 10, 2014, before Hughes, J., of the Federal Court, who delivered the following decision in Toronto, Ontario, on December 19, 2014.