Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., (2004) 317 N.R. 258 (FCA)

• Judge: Rothstein, Sexton and Sharlow, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: February 13, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 317 N.R. 258 (FCA);2004 FCA 66

Mikisew Cree First Nation v. Can. (2004), 317 N.R. 258 (FCA)

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[French language version follows English language version]

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

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Temp. Cite: [2004] N.R. TBEd. MR.011

Sheila Copps, Minister of Canadian Heritage (appellant) v. Mikisew Cree First Nation (respondent) and The Thebacha Road Society (respondent) and Attorney General of Alberta (intervenor)

(A-35-02; 2004 FCA 66; 2004 CAF 66)

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

Federal Court of Appeal

Rothstein, Sexton and Sharlow, JJ.A.

February 13, 2004.

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, allowed the appeal, set aside the trial decision and restored the Minister's decision.

Constitutional Law - Topic 9954

Practice - Notice to Crown and interested parties of attack on validity of statute - The Minister approved construction of a winter road through a national park - At issue on judicial review of that decision was whether the road infringed Treaty No. 8 hunting rights as constitutionalized by s. 35(1) of the Constitution Act, 1982 - The Federal Court of Appeal rejected a sub­mission that notice of a constitutional question was required under s. 57 of the Federal Courts Act - The court stated that "the objective of s. 57 was to preclude a court from making a judgment that a stat­ute or regulation is invalid, inapplicable or in­operable on constitutional grounds, un­less the constitutional question underly­ing the judgment is the subject of prior notice to Canada or the provinces. A notice of con­stitutional question under section 57 is simply a means of ensuring that appro­pri­ate notice is given. It is axiomatic that there is no need for a section 57 notice in a case where the judicial remedy is some­thing other than a judgment that a statute or regulation is invalid, inappropriate or inoperable on constitutional grounds. ... the constitutional challenge in this case is limited to the decision. ... That argument does not call for a decision as to the con­stitutional validity, applicability or oper­ability of legislation. It follows that no notice of constitutional question was re­quired under section 57 of the Federal Courts Act." - See paragraphs 70 to 81.

Fish and Game - Topic 804

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

Indians, Inuit and Métis - Topic 4409

Treaties and proclamations - General - Extinguishment - [See second Indians, Inuit and Métis - Topic 4409.1 ].

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" under Treaty No. 8 - Ac­cordingly, the road could not constitute an infringement of the treaty right to hunt as constitutionalized by s. 35 of the Consti­tution Act, 1982 - The right to hunt on the road corridor was suspended for as long as the road was used for a purpose visibly in­compatible with hunting - 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 court opined that although the Minister was not required to consult with the Mikisew be­fore approving the road project, good prac­tice would have been to consult more ex­tensively - See paragraphs 8 to 24.

Indians, Inuit and Métis - Topic 4409.1

Treaties and proclamations - General - Limi­tations on - The Federal Court of Appeal held that "the creation of Wood Buffalo National Park did not constitute a 'taking up' within the meaning of Treaty No. 8 and that the Mikisew's treaty right to hunt has not been abolished by statute" -See paragraphs 1, 82 to 115.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - The Federal Court of Ap­peal agreed that Treaty No. 8 should not be interpreted as if it were an ordinary contract - The court stated that "aboriginal treaties should be liberally construed and any uncertainties, ambiguities, or doubtful expressions should be resolved in favour of the Indians. The words of the treaty must not be interpreted in their strict technical sense but rather must be interpreted in the sense that they would naturally have been un­derstood by the Indians at the time of the signing." - See paragraph 15.

Indians, Inuit and Métis - Topic 4416

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

Indians, Inuit and Métis - Topic 4419

Treaties and proclamations - General - In­fringe­ment of right - Requirement of con­sultation - [See first Indians, Inuit and Métis - Topic 4409.1 ].

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 - See paragraphs 3 to 7.

Cases Noticed:

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 24l, refd to. [paras. 1, 112].

Batchewana Indian Band v. Canada (Minister of Indian and Northern Affairs), [1996] F.C.J. No. 660 (F.C.A.), refd to. [para. 4].

R. v. Morgentaler, [1993] 1 S.C.R. 462; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 6].

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. [paras. 9, 84].

R. v. Mousseau, [1980] 2 S.C.R. 89; 31 N.R. 620; 3 Man.R.(2d) 338, refd to. [para. 13].

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 64 B.C.L.R.(3d) 206; 178 D.L.R. (4th) 666; [1999] 9 W.W.R. 645; [1999] 4 C.N.L.R. 1; 1999 BCCA 470, refd to. [paras. 22, 121].

Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage) et al. (2001), 212 F.T.R. 1 (T.D.), affd. (2003), 303 N.R. 365; 1 C.E.L.R.(3d) 20 (F.C.A.), refd to. [para. 64].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 76].

McIntosh v. Canada (Secretary of State) (1994), 168 N.R. 75 (F.C.A.), dist. [para. 81].

Broddy and Broddy v. Director of Vital Statistics, [1983] 1 W.W.R. 481; 41 A.R. 255 (C.A.), dist. [para. 81].

Morine v. Parker (L & J) Equipment Inc. (2001), 193 N.S.R.(2d) 51; 602 A.P.R. 51; 30 Admin. L.R.(3d) 113 (C.A.), dist. [para. 81].

Gitxsan Treaty Society v. Hospital Employees' Union et al., [2000] 1 F.C. 135; 249 N.R. 37 (F.C.A.), dist. [para. 81].

R. v. Sundown (J.), [1999] 1 S.C.R. 393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [para. 100].

R. v. Catarat (H.) and Sylvestre (J.A.), [2001] 6 W.W.R. 681; 207 Sask.R. 57; 247 W.A.C. 57; [2001] C.N.L.R. 158; 2001 SKCA 50, dist. [para. 111].

R. v. Smith, [1935] 2 W.W.R. 433 (Sask. C.A.), dist. [para. 111].

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. 113].

Saanichton Marina Ltd. et al. v. Tsawout Indian Band (1989), 36 B.C.L.R.(2d) 79 (C.A.), refd to. [para. 122].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280; 56 C.C.C.(3d) 225; 70 D.L.R.(4th) 427, refd to. [para. 122].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81; 137 D.L.R.(4th) 289; 109 C.C.C.(3d) 1, refd to. [para. 131].

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 131].

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. 140].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89; [1996] 4 C.N.L.R. 1, refd to. [para. 141].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161; 13 D.L.R.(4th) 321, refd to. [para. 146].

R. v. Taylor and Williams (1981), 34 O.R.(2d) 360 (C.A.), refd to. [para. 146].

Statutes Noticed:

Constitution Act, 1982, sect. 35(1) [para. 74].

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 57 [para. 73].

Counsel:

Paul A. Shenher and Teresa Crotty-Wong, for the appellant;

Jeffrey R.W. Rath and Allisun Rana, for the respondent, Mikisew Cree First Nation;

Elizabeth A. Johnson, for the respondent, The Thebacha Road Society;

Robert J. Normey and Angela Brown, for the intervenor.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the appellant;

Rath & Co., Priddis, Alberta, for the re­spondent, Mikisew Cree First Nation;

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

Alberta Justice, Constitutional and Aborig­inal Law Branch, for the intervenor.

This appeal was heard on September 29, 2003, at Edmonton, Alberta, before Roth­stein, Sexton and Sharlow, JJ.A., of the Federal Court of Appeal.

The judgment of the Court of Appeal was delivered on February 13, 2004, and the following opinions were filed:

Rothstein, J.A. (Sexton, J.A., concurring) - see paragraphs 1 to 26;

Sharlow, J.A., dissenting - see para­graphs 27 to 154.