SCC Finds Government did not Adequately Consult with Treaty 8 First Nation

The Supreme Court of Canada Decision in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)

On November 24, 2005 the Supreme Court of Canada issued its judgment in the case of Mikisew Cree First Nation v. Sheila Copps, Minister of Canadian Heritage et al.

I.         Judgment

In a unanimous 9-0 judgment, the Court allowed Mikisew's appeal and overturned the decision of the Federal Court of Appeal.

The decision represents a major victory for Treaty 8 First Nations, and will have important implications for the relationship between government and both treaty and non-treaty First Nations across Canada.

II.         Facts

The Mikisew Cree First Nation ("Mikisew") is a First Nation whose ancestors were signatories to Treaty 8 in 1899. The Mikisew Reserve is located within Treaty 8 territory in what is now Wood Buffalo National Park. In 2000, the federal government approved a winter road that was to have run through the Mikisew Reserve. After Mikisew objected, the government modified the alignment of the road to track the boundary of the reserve. Mikisew challenged the approval of the road on the basis that the Minister failed to consult with Mikisew prior to making its decision. The Federal Court, Trial Division, set aside the decision on the basis of Canada's failure to consult with Mikisew. On appeal, the majority of the Federal Court of Appeal set aside the decision of the lower court, finding that the winter road was a "taking up" pursuant to the treaty rather than an infringement of treaty rights.

Mikisew appealed to the Supreme Court of Canada. The Lesser Slave Lake Indian Regional Council intervened in support of Mikisew. Allan Donovan and Bram Rogachevsky appeared at the Supreme Court of Canada on behalf of the Lesser Slave Lake Indian Regional Council.

III.         Analysis

In a unanimous judgment, the Supreme Court of Canada found that the federal government breached its legal obligation by failing to consult with Mikisew before approving the construction of the winter road.

The Court imported many of the principles that it developed in its decision in Haida Nation into the treaty context. In so doing, however, it made significant advances to the law respecting the honour of the Crown, as demonstrated, in practical terms, by the obligations of the Crown to consult with and accommodate First Nations peoples.

Binnie J., writing the decision for the unanimous Court, began with an important statement of principle:

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. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding. The multitude of smaller grievances created by the indifference of some government officials to aboriginal people's concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and more explosive controversies. And so it is in this case (para. 1).

The Court found that the Crown had breached its duty to consult, an obligation which flows from the honour of the Crown, and its obligation to respect the existing treaty rights of aboriginal peoples, as entrenched in s. 35 of the Constitution Act, 1982. The Court held that: "The government's approach did not advance the process of reconciliation but undermined it" (para. 4). The Court quashed the Minister's approval order, and remitted the winter road project to the Minister to be dealt with in accordance with the honour of the Crown.

The Court offered clarification in interpreting the "uneasy tension" inherent to the promises exchanged by Treaty 8. While recognizing that the Crown has a right to "take up" land under the terms of the Treaty, the Court held that the nature of the treaty relationship demands a process under which the Crown's right may be exercised. According to Binnie J.: "The content of the process is dictated by the duty of the Crown to act honourably" (para. 33).

The process required of the Crown demands a determination, in each case, of "the degree to which conduct contemplated by the Crown would adversely affect" (para. 34) treaty rights so as to trigger a duty to consult. Binnie J. noted that the threshold to trigger the duty to consult is a low one, and the "flexibility lies not in the trigger…but in the variable content of the duty once triggered" (para. 34).

Binnie J. found that because of the relatively minor nature of the project, and the fact the project was taking place on "surrendered" land pursuant to the "taking up" provision, the Crown's duty to consult fell at the lower end of the spectrum articulated by the Court in its decision in Haida. Notwithstanding this finding, Binnie J. held that the Crown was required to provide notice to the Mikisew, to engage directly with them, to solicit and to listen carefully to the Mikisew concerns, and to attempt to minimize adverse impacts on the Mikisew hunting, fishing and trapping rights (para. 64). To this end, the Court endorsed the comment of the British Columbia Court of Appeal in Halfway River, namely that the duty to consult imposes upon the Crown a positive obligation to ensure that First Nations interests and concerns are "seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action" (para. 64).

IV.         The Position of Government

The Court rejected both the findings of the Federal Court of Appeal, and the arguments of the federal government and the government of Alberta. The Court disagreed with the "implied rejection of the Mikisew procedural rights" promoted by the majority of the Court of Appeal's finding that treaty rights would only be infringed "where the Crown has taken up land in bad faith or has taken up so much land where no meaningful right to hunt remains". The Court found instead that it was apparent that the proposed road would adversely affect the Mikisew hunting and fishing rights, and that the duty of consultation identified in Haida Nation was not satisfied.

The Court entirely dismissed the argument of the federal government that the Crown's obligation to a treaty First Nation is not triggered as long as "it still remains reasonably practicable, within the Province as a whole, for the Indians to hunt, fish and trap for food [to] the extent that they choose to do so". Binnie J. exposed the impracticality of expecting a First Nation to travel long distances in order to exercise treaty rights that have always been exercised within its traditional territory. Binnie J. noted that: "One might as plausibly invite the truffle diggers of southern France to try their luck in the Austrian Alps, about the same distance as the journey across Alberta deemed by the Minister to be an acceptable fulfilment of the promises of Treaty 8" (para. 45).

Similarly, the Court rejected Alberta's suggestion that the small amount of land to be taken up leaves plenty of room for treaty rights to be exercised throughout Treaty 8 Territory. Binnie J. recognized that these arguments "simply ignore the significance and practicality of a First Nation's traditional territory" (para. 47), and that the "meaningful right to hunt" is "not ascertained on a treaty wide basis (all 840,000 square kilometres of it) but in relation to the territories over which a First Nation traditionally hunted, fished and trapped, and continues to do so today" (para. 48).

Binnie J.'s comments in this respect closely mirror the submissions made by counsel on behalf of the Lesser Slave Lake Indian Regional Council. At paragraph 25 of its factum, counsel for Lesser Slave Lake wrote the following:

Canada is of the view that a "taking up" of land is not an infringement of treaty rights as long as the First Nation can exercise its rights somewhere within Treaty 8 lands. ... Canada's argument is based on a generic concept of "Indians," and ignores the reality that many Aboriginal people lack the means to exercise their treaty rights anywhere but within reasonable proximity to where they live. It is therefore of little value to an Aboriginal person living in Northern Alberta to know that while he can no longer exercise his right to hunt on his traditional trapline, he is more than welcome to travel to Southern Alberta to exercise his rights there. The ability of Aboriginal communities to "support" or "sustain" themselves through the exercise of treaty right means the ability to exercise those rights in their traditional locations. By Canada's standard, this ability could be eliminated long before the Crown has an obligation to consult and, where appropriate, to accommodate.

Binnie J. was profoundly critical of the position taken by Canada in the hearing. At paragraph 49 he noted that: "There is in the Minister's argument a strong advocacy of unilateral Crown action (a sort of "this is surrendered land and we can do with it what we like" approach) which not only ignores the mutual promises of the treaty, both written and oral, but also is the antithesis of reconciliation and mutual respect." Binnie J. stressed what had been articulated in Haida and Taku – a principle he described as "the overarching objective of reconciliation rather than confrontation" (para. 50).

V.         Consultation and Accommodation

The Court also provided additional guidance as to the nature and content of the honour of the Crown as it relates to the duty to consult and accommodate. Binnie J. made it clear that the duty to accommodate is an important component of the consultation process. He noted that: "Consultation that excludes from the outset any form of accommodation would be meaningless. The contemplated process is not simply one of giving the Mikisew an opportunity to blow off steam before the Minister proceeds to do what she intended to do all along" (para. 54).

Binnie J. clearly stated that the Crown’s right to take up lands under treaty 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" (para. 56). Consultation is a procedural obligation, which the Crown must satisfy prior to making a decision which, if implemented, would infringe a treaty right. If the process is incompatible with the honour of the Crown, a First Nation may to entitled to have the decision set aside, even if the facts of the case would not otherwise support a finding of infringement of treaty rights.

On the facts of this case, the Court found that the federal government had not fulfilled the process required of it. It had not engaged in a meaningful process of consultation with the intention of substantially addressing the Mikisew’s concerns (para. 67). While consultation does not always lead to accommodation, or to agreement, the government will have no way of knowing how to address First Nation concerns if it does not consult to determine the nature of those concerns. The Court quashed the Minister’s approval and remitted the issue to be dealt with in accordance with its reasons.

VI.         Principles

There are a number of important principles that can be drawn from the judgment of the Court:

1. The ability of the government to "take up" lands under the numbered treaties is subject to the duty of consultation, and where appropriate, accommodation;
2. The duty to consult is triggered at a low threshold;
3. Consultation is a procedural obligation that must be satisfied prior to the making of a Crown decision – the failure to consult is grounds to quash a decision on a purely procedural basis;
4. Consultation must engage First Nations directly, and cannot be simply a component of a public consultation process, or an afterthought to such a process.
5. Consultation that excludes the possibility of accommodation is meaningless – Consultation is not simply a process of giving a First Nation an opportunity to "blow off steam"; and
6. Even in circumstances where the duty to consult falls on the lower end of the spectrum, government is required to consult meaningfully, to substantially address aboriginal concerns, and to attempt to minimize impacts on treaty rights;

VII.         Conclusions

The judgment of the Court is an important one for Treaty 8 First Nations. It clearly places an onus on government to consult meaningfully with First Nations prior to making decisions that will impact upon treaty rights. Treaty 8 First Nations, and indeed First Nation signatories to all numbered treaties, should insist that their views and concerns are heard, and are substantially integrated into Crown decision making. Similarly, the decision provides further clarity for First Nations with aboriginal, rather than treaty rights, in their territories, and will inform negotiations currently taking place in the context of the British Columbia Treaty Process.