Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Ten years on MCFN v. Canada still a landmark Wednesday December 9 2015 15 JUSTICE TREATY RIGHTS WESCLEAN NORTHERN SALES WESCLEAN NORTHERN SALES is the NWTs first choice for Janitorial and Industrial Supplies Flooring Paint and Wallcoverings Premium Wood Pellet Sales and Door to Door Truck Courier Service WESCLEAN 15 Industrial Drive Hay River NT Tel 875-5100 Fax 875-5115 www.wescleannwt.com Flooring Area Rugs Paint Window Coverings Janitorial Supplies W ESCLEA N N.W.T. HURRY IN Sale ends Nov. 27 Flooring Area Rugs Paint Window Coverings Janitorial Supplies interior design headquarters Buffalo Express AIR Toll-free 1 800 465-3168 salesbuffaloairexpress.com www.buffaloairexpress.com Yellowknife - 867 765-6002 Hay River - 867 874-3307 Edmonton - 780 455-9283 WE SERVICE ALL POINTS IN THE NWT that are accessible by commercial aircraft. Ask about our TRUCK AIR EXPRESS RATESTruck Air Express trucks from Edmonton and Calgary and flies out of Yellowknife. By DALI CARMICHAEL A decade ago the Mikisew Cree First Na- tion made history successfully ghting off development on its lands and leaving a stamp on Canadian case law. Today the precedent- setting case remains as important a decision as the day it came down. Nov. 24 marked ten years since the Supreme Court made a unanimous decision that the crown had a duciary duty to meaningfully consult with the First Nation before devel- oping on its treaty lands. That was the landmark ruling that actu- ally changed the whole face of industry and their dealings with First Nations for Aborig- inal people said Cleo Reece a councillor with the Fort McMurray 468 First Nation and activist who remembers watching the case proceed. The battle started in 2000 when the The- bacha Road Society - a Fort Smith group made upoftheTownSaltRiverFirstNationSmiths Landing First Nation and the local Mtis - pushed for development of a seasonal winter road through Wood Buffalo National Park to connect the communities of Fort Chipewyan and Fort Smith to a 118-kilometre route be- tween Peace Point and Garden River using an old logging road. The plan was approved by the minister of Canadian Heritage. That route would have passed right through Mikisews Peace Point reserve located on Treaty 8 land inside Wood Buffalo National Park. After some discussion the road was realigned to follow the edge of the reserve however Mikisew still held concerns over the impact of the road on animals that lived in their hunting grounds. The actual legal challenge was decided to be launched primarily because our efforts to attempt negotiations with the federal gov- ernment to mitigate some concerns that we had with the proposed winter road were not dealt with they were not addressed they were not acknowledged said George Poi- tras the former Mikisew chief who led the charge on the case. I got in as chief in June 1999 and one of the rst les to get onto my desk was this le. Under Treaty 8 Mikisew members and their heirs hold the right to ... pursue their usual vocations of hunting trapping and shing throughout the tract surrendered as heretofore described subject to such regu- lations as may from time to time be made by the government of the country acting under the authority of Her Majesty and saving and excepting such tracts as may be required or taken up from time to time for settlement mining lumbering trading or other purposes. The minister of Canadian Heritage at the time Sheila Copps explained in court that she understood the terminology to mean that aside from the public forums held in af- fected communities no additional consulta- tion was needed. A Supreme Court decision determined this was not the case and that a contemplated government action - such as a road - may be quashed based on procedural or substan- tive grounds. At the meetings that were nally held be- tween Parks Canada and Mikisew a decision had essentially been made therefore the meeting could not have been conducted with the genuine intention of allowing Mikisews concerns to be integrated with the proposal. While consultation would not have given the Mikisew power to veto the project as con- sultation does not always lead to accommoda- tion or an agreement it would have allowed the Mikisew a platform to suggest changes in the road alignment or construction. How- ever without following the crowns duty to honour the treaty the road was effectively dead in the muskeg. A road to treaty rights While Poitras is proud of victory he and his team achieved he lives with a tinge of regret over the way things played out. We had many meetings with the pro- ponents including the elders from the First Nations and the Metis community in Fort Smith he said. We had many appeals from them. One in particular was Frank Laviolette I believe who was an elder from one of the First Nations who appealed to me as chief in the meeting with my coun- cil. He said you know Ive been attempting to get support and see this road built and hes like Im an old man and if its one of the last things I see before I leave it would make me a very happy man. At that point Poitras consulted his council. I called for a recess I pulled my council out and I was like Do you hear that We had to unfortunately keep our prin- ciples intact and say this really is about the federal government and their lack of consul- tation and we cannot get sidetracked Poi- tras continued. Unfortunately we had to tell that to the elder. He passed a few years later and it was a very sad day for me I know that because we respect our elders a lot and I wanted to attempt to appease his wishes but couldnt do that. In the end though he acknowledged the importance of the precedent-setting nature of the decision which has been cited in hun- dreds of cases in all levels of court. Mikisew ended up being a very important decision for treaty First Nations in particu- lar but also quite frankly for all governments dealing with the treaties and the duty to con- sult said Thomas Isaac a Calgary lawyer who specializes in indigenous and treaty law. Mikisew conrmed that the crowns duty to consult which was rst expressed in the Haida decision in 2004 equally applies to treaty rights decisions. Mikisew was also important in terms of understanding the crowns duty to consult on modern treaties. Of course Mikisew dealt with Treaty 8 - an historic treaty - but Mikisew also formed sort of the starting point for the courts analysis in a decision called Beckman v. Little Salmon 2010 out of the Yukon given with the interpretation of the Yukon umbrella agreement which is a modern treaty. In that case the Yukon government ap- proved the granting of 65 hectares of sur- rendered Crown land to a private citizen without consulting the First Nation which contended its members had a treaty right to hunt and sh for subsistence on the parcel. There was a sense of victory a sense of knowing that our rights are not ancient that our rights are alive and well and that we should attempt to maintain them and utilize them as much as possible Poitras said remembering the day the decision came down. There was elation obviously. Many people felt that it was something that we should be proud of and that we should celebrate. Filephoto This cartoon ran in the Nov. 30 2005 issue of the Slave River Journal the same date as our original story about the case decision.