A decade ago, the Mikisew Cree First Nation made history, successfully fighting 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 fiduciary duty to meaningfully consult with the First Nation before developing on its treaty lands.
“That was the landmark ruling that actually changed the whole face of industry and their dealings with First Nations for Aboriginal 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 Thebacha Road Society – a Fort Smith group made up of the Town, Salt River First Nation, Smith’s Landing First Nation, and the local Métis – 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 between 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 Mikisew’s 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 government 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 Poitras, the former Mikisew chief who led the charge on the case. “I got in as chief in June 1999 and one of the first files to get onto my desk was this file.”
Under Treaty 8, Mikisew members and their heirs hold the right to “… pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations 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 affected communities, no additional consultation 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 substantive grounds.
“At the meetings that were finally held between Parks Canada and Mikisew, a decision had essentially been made, therefore, the meeting could not have been conducted with the genuine intention of allowing Mikisew’s concerns to be integrated with the proposal.”
While consultation would not have given the Mikisew power to veto the project, as consultation does not always lead to accommodation or an agreement, it would have allowed the Mikisew a platform to suggest changes in the road alignment or construction. However, without following the crown’s 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 proponents, 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 council. He said you know, I’ve been attempting to get support and see this road built and he’s like, I’m an old man and if it’s 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 principles intact and say this really is about the federal government and their lack of consultation and we cannot get sidetracked,” Poitras 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 couldn’t do that.”
In the end, though, he acknowledged the importance of the precedent-setting nature of the decision, which has been cited in “hundreds of cases” in all levels of court.
“Mikisew ended up being a very important decision for treaty First Nations in particular, but also quite frankly, for all governments dealing with the treaties and the duty to consult,” said Thomas Isaac, a Calgary lawyer who specializes in indigenous and treaty law. “Mikisew confirmed that the crown’s duty to consult, which was first expressed in the Haida decision in 2004, equally applies to treaty rights decisions.
“Mikisew was also important in terms of understanding the crown’s 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 court’s 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 approved the granting of 65 hectares of surrendered Crown land to a private citizen without consulting the First Nation, which contended its members had a treaty right to hunt and fish 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.”