Mikisew case

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) [1]- Supreme Court of Canada, 2005

Duty to Consult in Post-Treaty Context

The Supreme Court of Canada confirmed that the duty to consult also exists in the post-treaty context in the 2005 case of Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage). The Court held that even though governments have a power to exercise their treaty rights, those rights are subject to a duty to consult in situations where the exercise of those treaty rights would have an adverse effect on Aboriginal treaty rights.

The Mikisew Cree First Nation objected to a proposal to re-establish a winter road through Wood Buffalo National Park for winter access from four communities in the Northwest Territories to the highway in Alberta on the grounds that it would infringe on their hunting and trapping rights under Treaty 8.

The Court found that Parks Canada had not consulted directly with the Mikisew Cree about the road or about mitigating the impacts of the road on their treaty rights until after important routing decisions had been made despite having provided a standard information package about the road to the Mikisew Cree and having invited them to informational open houses along with the general public. The Crown was found to have failed to demonstrate an intention of substantially addressing Aboriginal concerns through a meaningful process of consultation. The court found that because the taking of the land for the road adversely affected the Mikisew Cree’s treaty right to hunt and trap, Parks Canada was required to consult with the Mikisew Cree before making important decisions.

The Court held that the impacts on the hunting and trapping rights were fairly minor, and that as a result, the lower end of the consultation spectrum was engaged. The Crown was required to provide notice to the Mikisew Cree and to engage directly with them. This engagement was to include the provision of information about the project, addressing what the Crown knew to be the Mikisew Cree’s interests and what the Crown anticipated might be the potential adverse impact on those interests. The Crown was also to solicit and listen carefully to the Mikisew Cree’s concerns, and attempt to minimize adverse impacts on its treaty rights.

In conclusion the Court stated:

“It is true, as the Minister argues, that there is some reciprocal onus on the Mikisew to carry their end of the consultation, to make their concerns known, to respond to the government’s attempt to meet their concerns and suggestions, and to try to reach some mutually satisfactory solution. In this case, however, consultation never reached that stage. It never got off the ground.

Had the consultation process gone ahead, it would not have given the Mikisew a veto over the alignment of the road. As emphasized in Haida Nation, consultation will not always lead to accommodation, and accommodation may or may not result in an agreement. There could, however, be changes in the road alignment or construction that would go a long way towards satisfying the Mikisew objections. We do not know, and the Minister cannot know in the absence of consultation, what such changes might be.”

[1] Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69

This article on the Mikisew case is an excerpt from the 3rd edition of our book "Working Effectively with Aboriginal Peoples®

By the way we talk all about these cases in our public workshops and onsite training.