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

Year: 2005

Court: Supreme Court of Canada

Citation: 2005 SCC 69

Location: AB

TAGS: Duty to Consult; Treaty Rights

The Crown has a duty to directly and meaningfully consult with treaty signatories prior to constructing within their territory.

Summary:

The Mikisew Cree Nation is located within Treaty 8, which was made in 1899. The treaty surrendered 840 000 square kilometers of land to Canada in exchange for reserve land, and the right to hunt, fish and trap on the land that was surrendered. It also had limitations within it, which stipulated that the lands could be “taken up” in the future by the Crown. The Minister of Canadian Heritage approved a winter road that was first going to go directly through the Mikisew Cree Nation Peace Point Reserve, and later changed to go around it, but still within their territory, without consultation from the Mikisew Cree Nation. The Mikisew Cree Nation objected to the building of the road, as it was in direct conflict with their Treaty right to use the land.

At trial, the Court used the R v Sparrow test, and found that the infringement on the rights of the Mikisew to consultation was not justified. The Court of Appeal reversed this decision and found that due to the express language of “taking up” of the land in the treaty for necessary purposes, building the road did not qualify as an infringement on the right to hunt. The Supreme Court of Canada (SCC) held that the road did infringe upon the hunting rights of the Mikisew Cree Nation, and that there was a duty to engage in consultation prior to the approval and building of the road. The Crown had failed to consult adequately in the circumstances.

Why this Case Matters:

This was another landmark case that applied the duty to consult described in Haida to treaty rights. The case provided that First Nations had to be consulted prior to a decision being reached for it to be considered direct, meaningful and effective.

Supreme Court Judgment:

CanLII – Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 (CanLII), [2005] 3 SCR 388

Go Deeper:

CanLII Connects, Lawson Lundell Law – The Mikisew Cree Decision: Balancing Government’s Power to Manage Lands and Resources with Consultation Obligations under Historic Treaties

The Supreme Court Law Review, Osgoode Hall Law School of York University, Bryan P. Schwartz, Darla L. Rettie – The Long and Winding Road: Case Comment on Mikisew Cree First Nation v. Canada (Minister of
Canadian Heritage)

Northern Journal, Dali Carmichael – Ten years on, Mikisew Cree First Nation v. Canada still a landmark

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