Mikisew should have been consulted on federal omnibus bills

The full implications of a federal court ruling slapping the Harper government for implementing two omnibus bills in 2012 without consulting with Mikisew Cree Nation are not yet known. However, MCN Chief Steve Courtoreille says it can only strengthen the stand of First Nations.

“It feels great that there’s some hope in the justice system of this country,” said Courtoreille. “But the sad part is that time and time again, the governments, both federal and provincial governments, they continue to create legislation and without consulting with the First Nations.”

The MCN challenged bills C-38 and C-45, both of which effected budgets as well as several key portions of federal environmental legislation. Among the impacts felt by the omnibus bills were the lessening of federal protection for a large number of streams, rivers and tributaries across the country, including culturally significant waterways in MCN traditional territory. The MCN asked that the court rule that the government had a duty to consult with Mikisew “to the extent that the (Omnibus) Bills had the potential to affect Mikisew’s treaty rights through changes to the Federal Environmental Laws.”

In a 64-page ruling released Dec. 19, Justice Roger Hughes agreed with MCN.

“I find that upon the introduction of each of the Omnibus Bills into Parliament, notice should have been given to the Mikisew in respect of those provisions that reasonably might have been expected to possibility impact upon their ‘usual vocations’ together with an opportunity to make submissions,” wrote Hughes. “In the present case, no notice was given and no opportunity to make submissions was provided.”

Hughes noted that both bills passed “with remarkable speed.” Bill C-38 was introduced in April and became law in June, while Bill C-45 was introduced in October and passed in December.

However, Hughes did not grant an injunction to MCN, writing “the scope of the terms of such an order would be almost impossible to define.”

This is not the first time MCN has been successful in a court challenge against federal legislation implemented without consultation.

“I’m quite pleased but at the same time very disappointed that why do we have to keep reminding the government they have to consult?” said Courtoreille. “We took them to task and won our case in the Supreme Court in 2005. Isn’t that good enough to say you have a legal responsibility, not only a fiduciary responsibility, to protect our interest and why do we have to go to court to remind you?”

In 2005, the Mikisew argued in front of the Supreme Court of Canada that Ottawa had failed to adequately consult with them over plans to add traditional territory to Wood Buffalo National Park. The band is presently lobbying UNESCO to give the park an “at-risk” designation to further protect it from encroaching oil sands and hydroelectric projects.

Courtoreille holds that this latest decision is not only a victory for First Nations, but all Canadians.

“The environment affects everybody and if the government is going to cut out the Environmental Act and not protect the environment, well, what are they saying to the Canadian people? What is more important? The tarsands projects that are pushing forward and (this) makes it a lot easier for them to get approvals rather than going through hearings and it’s pretty scary how the future is going to look like if we allow them to continue,” said Courtoreille.

There are numerous reasons why MCN’s legal victory should be lauded by Canadians, blogs Don Richardson, with Shared Value Solutions, a certified B corporation in Ontario that “uses the power of business to solve social and environmental problems.”

Not only will there be increased Aboriginal environmental oversight and stewardship on the waterways and fish habitat, along with the application of Aboriginal traditional knowledge impacting government decisions, writes Richardson, but there will also be more federal environmental assessments and stronger partnerships between Aboriginal groups and industry.

The government has until Jan. 19 to appeal the decision. Courtoreille expects Ottawa will take that step.

“But I think if they were open-minded, they would say, ‘Mikisew has a point. Maybe we need to do things better. No need to appeal now, we’ll work with them.’ That would be the best thing that ever happened in this country but I don’t know,” said Courtoreille. “If they appeal, they’re telling me that they don’t feel that they have a fiduciary responsibility for our treaty rights and they’re not going to protect our treaty rights so we’ll take them to task further if we have to. I’m not prepared to stop for anything right now.”