Digests

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

T-1141-01

2001 FCT 1426, Hansen J.

20/12/01

77 pp.

Application for judicial review of decision to approve construction of winter road through Wood Buffalo National Park (WBNP) for purpose not related to park management--On May 25, 2001, Parks Canada determined construction of winter road in WBNP would not cause significant environmental impacts, provided mitigation measures implemented--Accordingly, road approved-- Mikisew Cree First Nation, members claiming treaty rights to hunt, trap, fish, carry out traditional mode of life in area encompassed by WBNP--Members of Band contending treaty rights impacted by construction of road--Mikisew Cree First Nation Indian Band as defined by Indian Act, Treaty No. 8 First Nation--Whether Minister of Canadian Heritage failed to conduct herself in accordance with fiduciary, constitutional duties to Mikisew in breach of Constitution Act, 1982, s. 35(1)--In R. v. Sparrow, [1990] 1 S.C.R. 1075, S.C.C. set out now well-established test Crown must meet when taking actions under jurisdiction that impact on treaty, aboriginal rights--Intentions of parties in entering into treaty can be adduced from consideration of extrinsic evidence--Ample evidence on which to base finding constitutionally protected treaty right to hunt, trap in WBNP arose out of signing of Treaty No. 8--Whether treaty right to hunt, trap in WBNP extinguished by statute, through "taking up" of lands, " visible incompatible use", or by regulation--Treaty rights protected from extinguishment by principle Crown must produce evidence of "clear and plain intention" to extinguish treaty right at issue--No clear, plain intention to extinguish Mikisew's right to trap, hunt in Park in either establishment of WBNP, in temporary regulation of right for conservation purposes--Plain language of Treaty No. 8 revealing only two limitations on right to hunt, trap--Lands of WBNP not "taken up" in manner incompatible with regulated right to hunt, trap by Mikisew--Exercise of right to trap, hunt not incompatible with use of land as national park, particularly with respect to park as large, remote as WBNP--Crown failed to discharge onus to provide evidence of "clear and plain intention" to extinguish treaty rights--Constitutional protection requiring infringement of rights to be justified in accordance with Sparrow test--Applicant met prima facie infringement branch of Sparrow test--Once prima facie impact established, onus shifts to Crown to demonstrate impact justifiable-- Justification requiring Crown to meet two-stage test: infringe-ment must be related to compelling, substantial government objective, must be consistent with Crown's role as fiduciary--Winter road proposal adopted to fulfil legislative objective of meeting regional transportation needs--Purpose not sufficiently "compelling and substantial" to justify infringement of constitutionally protected treaty rights-- Consultation must be untertaken with genuine intention of substantially addressing First Nation concerns--Not consistent with honour of Crown, in capacity as fiduciary, to fail to consult with First Nation prior to making decision that infringes on constitutionally protected treaty rights--Minister failing to provide meaningful First Nations consultation-- Finding of inadequate consultation sufficient to impugn Minister's decision--Minister submitted all possible steps taken to ensure construction, operation of winter snow road would have minimal consequential effect--Mitigation measures attached to Minister's decision not developed in consultation with Mikisew, not designed to minimize impacts on Mikisew's rights--Only one of seven measures listed by respondent Minister speaking directly to issue of minimizing impact on Mikisew's treaty rights--Decision of Parks Canada to approve winter snow road through WBNP not justified infringement of Mikisew's treaty rights as Minister not meeting duty to consult with Mikisew--Application allowed --Indian Act, R.S.C., 1985, c. I-5--Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35(1).