Mikisew Cree First Nation v. Canada
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)
Court: Supreme Court of Canada
Citation: 2005 SCC 69
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.
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:
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
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