Mikisew Cree First Nation Appellant
Sheila Copps, Minister of Canadian Heritage,
and Thebacha Road Society Respondents
Attorney General for Saskatchewan, Attorney General
of Alberta, Big Island Lake Cree Nation, Lesser Slave
Lake Indian Regional Council, Treaty 8 First Nations
of Alberta, Treaty 8 Tribal Association, Blueberry
River First Nations and Assembly of First Nations Interveners
Indexed as: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)
Neutral citation: 2005 SCC 69.
File No.: 30246.
2005: March 14; 2005: November 24.
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the federal court of appeal
Indians — Treaty rights — Crown’s duty to consult — Crown exercising its treaty right and “taking up” surrendered lands to build winter road to meet regional transportation needs — Proposed road reducing territory over which Mikisew Cree First Nation would be entitled to exercise its treaty rights to hunt, fish and trap — Whether Crown had duty to consult Mikisew — If so, whether Crown discharged its duty — Treaty No. 8.
Crown — Honour of Crown — Duty to consult and accommodate Aboriginal peoples
Appeal — Role of intervener — New argument.
Under Treaty 8, made in 1899, the First Nations who lived in the area surrendered to the Crown 840,000 square kilometres of what is now northern Alberta, northeastern British Columbia, northwestern Saskatchewan and the southern portion of the Northwest Territories, an area whose size dwarfs France, exceeds Manitoba, Saskatchewan and Alberta and approaches the size of British Columbia. In exchange for this surrender, the First Nations were promised reserves and some other benefits including, most importantly to them, the rights to hunt, trap and fish throughout the land surrendered to the Crown except “such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes”.
The Mikisew Reserve is located within Treaty 8 in what is now Wood Buffalo National Park. In 2000, the federal government approved a winter road, which was to run through the Mikisew’s reserve, without consulting them. After the Mikisew protested, the road alignment was modified (but without consultation) to track around the boundary of the reserve. The total area of the road corridor is approximately 23 square kilometres. The Mikisew’s objection to the road goes beyond the direct impact of closure to hunting and trapping of the area covered by the winter road and included the injurious affection it would have on their traditional lifestyle which was central to their culture. The Federal Court, Trial Division set aside the Minister’s approval based on breach of the Crown’s fiduciary duty to consult with the Mikisew adequately and granted an interlocutory injuction against constructing the winter road. The court held that the standard public notices and open houses which were given were not sufficient and that the Mikisew were entitled to a distinct consultation process. The Federal Court of Appeal set aside the decision and found, on the basis of an argument put forward by an intervener, that the winter road was properly seen as a “taking up” of surrendered land pursuant to the treaty rather than an infringement of it. This judgment was delivered before the release of this Court’s decisions in Haida Nation and Taku River Tlingit First Nation.
Held: The appeal should be allowed. The duty of consultation, which flows from the honour of the Crown, was breached.
The government’s approach, rather than advancing the process of reconciliation between the Crown and the Treaty 8 First Nations, undermined it. 
When the Crown exercises its Treaty 8 right to “take up” land, its duty to act honourably dictates the content of the process. The question in each case is to determine the degree to which conduct contemplated by the Crown would adversely affect the rights of the aboriginal peoples to hunt, fish and trap so as to trigger the duty to consult. Accordingly, where the court is dealing with a proposed “taking up”, it is not correct to move directly to a Sparrow justification analysis even if the proposed measure, if implemented, would infringe a First Nation treaty right. The Court must first consider the process and whether it is compatible with the honour of the Crown. [33‑34] 
The Crown, while it has a treaty right to “take up” surrendered lands, is nevertheless under the obligation to inform itself on the impact its project will have on the exercise by the Mikisew of their treaty hunting, fishing and trapping rights and to communicate its findings to the Mikisew. The Crown must then attempt to deal with the Mikisew in good faith and with the intention of substantially addressing their concerns. The duty to consult is triggered at a low threshold, but adverse impact is a matter of degree, as is the extent of the content of the Crown’s duty. Under Treaty 8, the First Nation treaty rights to hunt, fish and trap are therefore limited not only by geographical limits and specific forms of government regulation, but also by the Crown’s right to take up lands under the treaty, subject to its duty to consult and, if appropriate, to accommodate the concerns of the First Nation affected. [55‑56]
Here, the duty to consult is triggered. The impacts of the proposed road were clear, established, and demonstrably adverse to the continued exercise of the Mikisew hunting and trapping rights over the lands in question. Contrary to the Crown’s argument, the duty to consult was not discharged in 1899 by the pre‑treaty negotiations. [54‑55]
However, given that the Crown is proposing to build a fairly minor winter road on surrendered lands where the Mikisew treaty rights are expressly subject to the “taking up” limitation, the content of the Crown’s duty of consultation in this case lies at the lower end of the spectrum. The Crown is required to provide notice to the Mikisew and to engage directly with them. This engagement should include the provision of information about the project, addressing what the Crown knew to be the Mikisew’s interests and what the Crown anticipated might be the potential adverse impact on those interests. The Crown must also solicit and listen carefully to the Mikisew’s concerns, and attempt to minimize adverse impacts on its treaty rights. 
The Crown did not discharge its obligations when it unilaterally declared the road re‑alignment would be shifted from the reserve itself to a track along its boundary. It failed to demonstrate an intention of substantially addressing aboriginal concerns through a meaningful process of consultation. [64-67]
The Attorney General of Alberta did not overstep the proper role of an intervener when he raised before the Federal Court of Appeal a fresh argument on the central issue of whether the Minister’s approval of the winter road infringed Treaty 8. It is always open to an intervener to put forward any legal argument in support of what it submits is the correct legal conclusion on an issue properly before the court provided that in doing so its legal argument does not require additional facts not proven in evidence at trial, or raise an argument that is otherwise unfair to one of the parties. 
Considered: R. v. Badger,  1 S.C.R. 771; Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511, 2004 SCC 73; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director),  3 S.C.R. 550, 2004 SCC 74; distinguished: R. v. Sparrow,  1 S.C.R. 1075; referred to: R. v. Sioui,  1 S.C.R. 1025; R. v. Marshall,  3 S.C.R. 456; R. v. Marshall,  2. S.C.R. 220, 2005 SCC 43; Halfway River First Nation v. British Columbia (Ministry of Forests) (1999), 178 D.L.R. (4th) 666, 1999 BCCA 470; R. v. Morgentaler,  1 S.C.R. 462; Lamb v. Kincaid (1907), 38 S.C.R. 516; Athey v. Leonati,  3 S.C.R. 458; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd.,  1 S.C.R. 678, 2002 SCC 19; Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434; Delgamuukw v. British Columbia,  3 S.C.R. 1010; Wewaykum Indian Band v. Canada,  4 S.C.R. 245, 2002 SCC 79; McInerney v. MacDonald,  2 S.C.R. 138; R. v. Smith,  2 W.W.R. 433.
Statutes and Regulations Cited
Natural Resources Transfer Agreement, 1930 (Alberta) (Schedule of Constitution Act, 1930, R.S.C. 1985, App. II, No. 26), para. 10.
Wood Buffalo National Park Game Regulations, SOR/78‑830, s. 36(5).
Treaties and Proclamations
Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1.
Treaty No. 8 (1899).
Mair, Charles. Through the Mackenzie Basin: A Narrative of the Athabasca and Peace River Treaty Expedition of 1899. Toronto: William Briggs, 1908.
Report of Commissioners for Treaty No. 8, in Treaty No. 8 made June 21, 1899 and Adhesions, Reports, etc., reprinted from 1899 edition. Ottawa: Queen’s Printer, 1966.
APPEAL from a judgment of the Federal Court of Appeal (Rothstein, Sexton and Sharlow JJ.A.),  3 F.C.R. 436, (2004), 236 D.L.R. (4th) 648, 317 N.R. 258,  2 C.N.L.R. 74,  F.C.J. No. 277 (QL), 2004 FCA 66, reversing a judgment of Hansen J. (2001), 214 F.T.R. 48,  1 C.N.L.R. 169,  F.C.J. No. 1877 (QL), 2001 FCT 1426. Appeal allowed.
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