December 19, 2014

Duty to consult: Mikisew Cree First Nation v. Canada (Minister of Aboriginal Affairs and Northern Development)


The Mikisew Cree case involved two omnibus bills introduced by the federal Minister of Finance in 2012: Bill C-38 and Bill C-45. These Omnibus Bills made some significant changes to Canada’s environmental laws. They amended the Fisheries Act, the Species at Risk Act, what is now the Navigation Protection Act, and replaced the Canadian Environmental Assessment Act, 1992, with a new 2012 version.

Although the Federal Court decided that a duty to consult could not trigger judicial intervention at any point in the legislative process before a bill is introduced into Parliament [72], a duty arise from a bill being introduced to Parliament.

On the first branch of the test for a duty to consult, the Crown conceded it had knowledge of Mikisew treaty rights to hunt, trap and fish throughout certain lands surrendered to the Crown. [83-86]

On the second question of adverse effects, the court found that potential adverse effects could flow from statutory amendments. In particular, the Navigable Waters Protection Act, which prevented any work “on, over, under, through or across” any navigable river without the Minister’s prior approval, was to change so that the restriction only applies to navigable waters listed in a Schedule, and only for purposes of navigation. [88]

Furthermore, the Fisheries Act, which prevented any work resulting in the harmful alteration, disruption or destruction of fish habitat, was amended to restrict only work that results in “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery”. [91]

On both of these grounds, the court found “a sufficient potential risk to the fishing and trapping rights has been shown so as to trigger the duty to consult”. [93]

The court found a further potential impact flowing from reduced environmental oversight that might result from a change to the new Canadian Environmental Assessment Act, 2012. The new act provided for a new list, for projects of a minimum size designated for assessment [94].

However, the court rejected any potential impact from a provision which specified assessments of only certain environmental components, while excluding others, as a further provision required assessment of any effect on uses by Aboriginal peoples of lands and resources for traditional purposes. [94]

Mikisew Cree First Nation v. Canada (Minister of Aboriginal Affairs and Northern Development), 2014 FC 1244

Lisa C. Fong and Michael Ng