Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., (2005) 342 N.R. 82 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 24, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 342 N.R. 82 (SCC);2005 SCC 69

Mikisew Cree First Nation v. Can. (2005), 342 N.R. 82 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] N.R. TBEd. NO.039

Mikisew Cree First Nation (appellant) v. Sheila Copps, Minister of Canadian Heritage, and Thebacha Road Society (respondents) and Attorney General for Saskatchewan, Attorney General of 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 (intervenors)

(30246; 2005 SCC 69; 2005 CSC 69)

Indexed As: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al.

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

November 24, 2005.

Summary:

The Minister of Canadian Heritage author­ized the Thebacha Road Society to construct and operate a winter road through Wood Buf­falo National Park. The Mikisew Cree First Nation, which had a treaty right to hunt and trap in the Park (Treaty No. 8), applied for judicial review.

The Federal Court of Canada, Trial Divi­sion, in a judgment reported (2002), 214 F.T.R. 48, allowed the application. The rights of the Mikisew under Treaty No. 8 were infringed because the Minister's deci­sion was not preceded by adequate consulta­tion. The Minister appealed.

The Federal Court of Appeal, Sharlow, J.A., dissenting, in a judgment reported (2004), 317 N.R. 258, allowed the appeal, set aside the trial decision and restored the Minister's decision. The Mikisew appealed.

The Supreme Court of Canada allowed the ap­peal, quashed the Minister's approval, and remitted the matter to the Minister for appro­priate consultation and consideration. The Crown's right to "take up" lands under the treaty gave rise to a duty to consult and, if ap­propriate, to accomodate the Mikisew Na­tion's interests before reducing the area over which their members could continue to hunt, fish and trap.

Fish and Game - Topic 804

Indian, Inuit and Métis rights - General principles - Scope of rights - General - [See Indians, Inuit and Métis - Topic 4409.1 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - [See Indians, Inuit and Métis - Topic 4419 ].

Indians, Inuit and Métis - Topic 4409.1

Treaties and proclamations - General - Limitations on - The Mikisew's Treaty No. 8 right to hunt encompassed Wood Buffalo National Park - Treaty No. 8 expressly pre­cluded hunting on land "taken up" for "settlement, mining, lumbering, trading or other purposes" - The Minister approved construction of a winter road through the Park (200 metre wide corridor) - The Fed­er­al Court of Appeal held that the road was an approved "taking up" of land for "other purposes" - Accordingly, the road could not constitute an infringement of the treaty right to hunt as constitutionalized by s. 35 of the Constitution Act, 1982 - Since there was no infringement, the Sparrow test need not be applied - Further, the Trial Division had quashed the road approval for in­sufficient consultation - Since there was no treaty infringement, that decision could not stand, as the Minister had a discretion whether to consult or not - The Supreme Court of Canada quashed the Ministerial ap­proval and remitted the matter to the Minister for proper consultation - Although the Crown had a treaty right to "take up" the surrendered lands for regional transpor­tation purposes, the honour of the Crown still required the Crown to consult with the Mikisew in good faith as the "taking up" affected hunting and trapping rights - In­vit­ing the Mikisew to participate in public meetings did not discharge that duty to con­sult - The court set out the scope of the duty to consult - See paragraphs 42 to 69.

Indians, Inuit and Métis - Topic 4416

Treaties and proclamations - General - Ab­ro­gation of treaties - What constitutes - [See Indians, Inuit and Métis - Topic 4409.1 ].

Indians, Inuit and Métis - Topic 4419

Treaties and proclamations - General - In­fringement of right - Requirement of con­sultation - The Mikisew's Treaty No. 8 right to hunt encompassed Wood Buffalo National Park - The Crown approved con­struction of a winter road through the Park (200 metre wide corridor), which was per­mitted under the Crown's treaty right to "take up" surrendered lands for regional transportation purposes - The Supreme Court of Canada stated that "the Crown is nevertheless under an obligation to inform itself of the impact its project will have on the exercise by the Mikisew of their hunt­ing and trapping rights, and to communi­cate its findings to the Mikisew. The Crown must then attempt to deal with the Mikisew 'in good faith, and with the inten­tion of substantially addressing' Mikisew concerns ... . This does not mean that whenever a government proposes to do any­thing in the Treaty 8 surrendered lands it must consult with all signatory First Nations, no matter how remote or unsub­stantial the impact. The duty to consult is, as stated in Haida Nation, triggered at a low threshold, but adverse impact is a mat­ter of degree, as is the extent of the Crown's duty. ... Viewed in light of the facts of this case, we should qualify Bad­ger's identification of two inherent limita­tions on Indian hunting, fishing and trap­ping rights under Treaty 8 (geographical limits and specific forms of government regu­lation) by a third, namely the Crown's right to take up lands under the treaty, which itself is subject to its duty to consult and, if appropriate, accommodate First Na­tions' interests before reducing the area over which their members may continue to pursue their hunting, trapping and fishing rights. Such a third qualification (not at issue in Badger) is fully justified by the history of the negotiations leading to Treaty 8, as well as by the honour of the Crown as previously discussed. ... the honour of the Crown infuses every treaty and the performance of every treaty obliga­tion. Treaty 8 therefore gives rise to Miki­sew procedural rights (e.g. consultation) as well as substantive rights (e.g. hunting, fishing and trapping rights). Were the Crown to have barrelled ahead with imple­mentation of the winter road without ade­quate consultation, it would have been in violation of its procedural obligations, quite apart from whether or not the Miki­sew could have established that the winter road breached the Crown's substantive treaty obligations as well." - See para­graphs 55 to 57.

Practice - Topic 689

Parties - Adding or substituting parties - Intervenors - Pleadings by intervenors - The Minister's approval of a winter road was quashed for insufficient consultation with the Mikisew, whose treaty rights were said to be infringed - An issue at trial was whether the road was a "taking up" of land under the treaty (i.e., no infringement) - On appeal, the Minister chose to no longer rely on that issue - The issue was argued on appeal by the intervenor (Attorney Gen­eral of Alberta) - The Mikisew sub­mitted that since the Minister chose not to rely on the issue, it was not open for the inter­venor to do so - The Federal Court of Ap­peal held that the intervenor's sub­missions fell squarely within the scope of the per­mitted intervention - The issue of treaty infringement remained a live issue - While the Minister no longer relied on the argu­ment raised by the intervenor, the Minister did not contradict or otherwise disavow the intervenor's position - The Supreme Court of Canada agreed, stating that "Alberta's argument is not one that should have taken the Mikisew by surprise. In these circum­stances it would be intoler­able if the courts were precluded from giving effect to a cor­rect legal analysis just because it came later rather than sooner and from an inter­venor rather than a party. To close our eyes to the argument would be to 'risk and injustice'." - See paragraphs 40 to 41.

Cases Noticed:

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. 19].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 19].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 19].

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. 22].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 22].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 28].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.) (2005), 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 235 N.S.R.(2d) 151; 747 A.P.R. 151; 2005 SCC 43, refd to. [para. 28].

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 178 D.L.R.(4th) 666; 1999 BCCA 470, refd to. [para. 32].

R. v. Morgentaler, [1993] 1 S.C.R. 462, refd to. [para. 39].

Lamb v. Kincaid (1907), 38 S.C.R. 516, refd to. [para. 40].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 40].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2), [2002] 1 S.C.R. 678; 283 N.R. 233; 299 A.R. 201; 266 W.A.C. 201; 2002 SCC 19, refd to. [para. 41].

Ontario v. Canada (1895), 25 S.C.R. 434, refd to. [para. 51].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 51].

R. v. Smith, [1935] 2 W.W.R. 433 (Sask. C.A.), refd to. [para. 60].

Authors and Works Noticed:

Canada, Report of Commissioners for Treaty No. 8 (1899), pp. 5 [para. 26]; 12 [para. 2].

Mair, Charles, Through the Mackenzie Basin: A Narrative of the Athabasca and Peace River Treaty Expedition of 1899 (1908), p. 61 [para. 25].

Counsel:

Jeffrey R.W. Rath and Allisun Taylor Rana, for the appellant;

Cheryl J. Tobias and Mark R. Kindrachuk, Q.C., for the respondent, Sheila Copps, Minister of Canadian Heritage;

No one appeared for the respondent, the Thebacha Road Society;

P. Mitch McAdam, for the intervenor, the Attorney General for Saskatchewan;

Robert Normey and Angela J. Brown, for the intervenor, the Attorney General of Alberta;

James D. Jodouin and Gary L. Bainbridge, for the intervenor, the Big Island Lake Cree Nation;

C. Allan Donovan and Bram Rogachevsky, for the intervenor, the Lesser Slave Lake Indian Regional Council;

Robert C. Freedman and Dominique Nou­vet, for the intervenor, the Treaty 8 First Nations of Alberta;

E. Jack Woodward and Jay Nelson, for the intervenor, the Treaty 8 Tribal Associ­ation;

Thomas R. Berger, Q.C., and Gary A. Nelson, for the intervenor, the Blueberry River First Nations;

Jack R. London, Q.C., and Bryan P. Schwartz, for the intervenor, the Assem­bly of First Nations.

Solicitors of Record:

Rath & Co., Priddis, Alberta, for the ap­pellant;

Attorney General of Canada, Edmonton, Alberta, for the respondent, Sheila Copps, Minister of Canadian Heritage;

Ackroyd Piasta Roth & Day, Edmonton, Alberta, for the respondent, the Thebacha Road Society;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervenor, the Attorney General for Saskatchewan;

Attorney General of Alberta, Edmonton, Alberta, for the intervenor, the Attorney General of Alberta;

Woloshyn & Co., Saskatoon, Saskatche­wan, for the intervenor, the Big Island Lake Cree Nation;

Donovan & Co., Vancouver, B.C., for the intervenor, the Lesser Slave Lake Indian Regional Council;

Cook Roberts, Victoria, B.C., for the inter­venor, the Treaty 8 First Nations of Al­berta;

Woodward & Co., Victoria, B.C., for the in­tervenor, the Treaty 8 Tribal Associ­ation;

Thomas R. Berger, Vancouver, B.C., for the intervenor, the Blueberry River First Nations;

Pitblado, Winnipeg, Manitoba, for the in­tervenor, the Assembly of First Nations.

This appeal was heard on March 14, 2005, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On November 24, 2005, Binnie, J., delivered the following judgment in both official languages for the Supreme Court of Canada.