24. THE MIKISEW CREE CASE

In states there are often some obscure and almost latent causes, things which appear at first view of little moment, on which a very great part of its prosperity or adversity may most essentially depend. – Edmund Burke, Reflections

In the Mikisew Cree First Nation case, decided in 2005,1 the Supreme Court of Canada ruled that the proposed construction of a winter road around the Mikisew Reserve in Wood Buffalo National Park could not go ahead because the Mikisew not been adequately consulted about the potential impact of the road on their right to hunt, fish and trap in the area – and this even though the treaty covering the lands had taken away their rights to hunt, fish and trap on any such lands “taken up” by the Crown for such a purpose as a road.

Fourteen trappers and about 100 people who hunted moose (which probably included the 14 trappers) claimed that these pursuits would be affected by the road.

Interestingly, but of little interest to the Court, the construction of the road was supported by Indian groups to the north, whose settlements would have been provided winter access to the Alberta highway system to the south. They saw nothing wrong or “dishonourable” in the Crown’s conduct in the way it had moved forward with the road. In fact the government had provided the Mikisew with substantial written information about the proposed road and had conducted open house sessions about it, which the Mikisew, despite having notice of, declined to attend because, as their chief said, “… an open house is not a forum for us to be consulted adequately.”

In their lawsuit the Mikisew claimed that not only would the winter road negatively affect their hunting and trapping rights, but their “traditional lifestyle,” which was “central to their culture,” depended on the road not being built. Keeping the land in its natural condition was essential “to allow them to pass their culture and skills on to the next generation of Mikisew.” The detrimental impact of the road on hunting and trapping, they argued, “may simply prove to be one more incentive for (our) young people to abandon a traditional lifestyle and turn to other modes of living in the south.”

This was so absurd to say. Their hunting and trapping pursuits were not essential to their survival, as in pre-contact times. Welfare and transfer payments constitute the heart of their survival, which is the case with virtually all Indian reserves, especially the remote ones like the Mikisew reserve. As already argued, hunting and trapping are, in the case of virtually all Canadian Indians today, mainly recreational, non-essential pastimes. And any real effect on whatever hunting and trapping they did was so minimal as to not justify the huge loss of the benefit of the winter road to their near neighbours, Indian and non-Indian alike.

And their “traditional culture,” as also already argued, was neither “traditional” in the pre-contact aboriginal sense, nor was it unique or different from mainstream Canadian culture. In fact, it was and is a mere variation of modern lower-income rural culture, sustained mainly by pickup trucks, ATV’s, snow machines, general stores, gasoline, satellite television and various financial assistance programs. The road posed no threat to a “traditional culture” or to traditional “skills” that  no longer existed. And their assertion about their “young people” turning to “other modes of living in the south” would have been simply laughable if it didn’t involve so much tragedy and waste of human potential. Had the Supreme Court not heard about the glue-sniffing, alcoholism, drug abuse, sexual and domestic abuse, delinquency, rampant early teen pregnancies and suicides endemic to these unfortunate youth who live on Canada’s remote Indian reserves?

Native leaders are constantly bewailing the fact that aboriginal youth are already completely captured and being seriously harmed by the tragic and destructive dark sides of those “modes of living in the south”! These “young people” personify the tragic consequences of the “separate but equal” legal strait-jacket discussed above, now being strengthened, not loosened, by such decisions as Haida Nation and Mikisew! But, either oblivious or indifferent to this socio-economic reality, or, like everyone else, afraid to confront or even just engage with it a little bit, accepting at face value, with little critical enquiry or evidentiary support, all the Mikisew  elites’ fairy-tale assertions about their “culture and skills,” and sending the matter of this “fairly minor winter road” back to the “consult and accommodate” drawing board, the court then proceeded to set out further onerous particulars of the Crown’s obligations which arise whenever anything is proposed that any nearby Indian group merely asserts might impact their treaty or aboriginal rights, actual or potential.

In effect the court in Mikisew strengthened and refined the legal and economic chokehold over the Crown and non-Indian Canadians it had previously given to Indians in the Haida Nation case.

According to Mikisew, whenever the Crown or anyone else wants to do anything on already-surrendered Crown land that might “adversely affect” the rights of aboriginal peoples to hunt, fish or trap, then the duty to consult is “triggered” and, to continue the image, the gun is put to the head of the Crown and anyone else involved in the project under consideration. The Crown is required to provide notice to the possibly-affected Indians and to engage directly with them. This engagement must provide information about the project, addressing what the Crown knows to be the Indians’ interests and what the Crown anticipates “might be the potential adverse impact on those interests.” The Crown must also “solicit and listen carefully” to the Indians’ concerns, and attempt to minimize “adverse impacts” on their treaty rights and, wherever possible, “demonstrably integrate” Indian concerns and representations into the proposed plan of action.

All this is at such a staggering remove from the original intentions and wording of the old treaties!

These strong and pregnant words and concepts, from the highest court in the land, having the real meaning and effect of essentially hobbling at the knees Crown prestige, authority, power and discretion, and by this notice requirement creating an appetite in nearby Indian bands for economic coercion where none might otherwise exist, are naturally being seized upon by Indians across the country as the basis for audacious new power and money demands.

  1. Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 3 S.C.R. 388.

By: Peter Best