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Litigation

Traditional Use Studies (TUS) with their wealth of information, including oral histories with Elders and other knowledge keepers, have the potential to be used to support Treaty, land claims and other types of litigation dealing with Aboriginal rights. They are also of interest to the media when exploring environmental issues.

A current example involves the international attention brought to the exploitation of the Athabasca oilsands. In the March, 2009, issue of National Geographic magazine, an article titled "The Canadian Oil Boom: Scraping Bottom" by Robert Kunzig focuses attention on the Fort McKay First Nation.(1) The article begins with an interview with Jim Boucher, Chief of the First Nation and President of the Fort McKay Group of Companies, who tells that, as a seven year old, he was regularly accompanying his Grandfather on his trapline near Mildred Lake. That year, in 1963, while tending to the trapline, they suddenly came upon a huge, newly-bulldozed clearing. A few years later, during the 1970s, his Grandfather's cabin was bulldozed without consultation or notice.

The costs of litigation and recent court decisions have changed this way of doing business. Canadian provinces and the industries that exploit the regions have long based their legal rights on a decision made by the British Privy Council in 1888, known as St. Catherine's Milling and Lumber v. The Queen. The British Privy Council was then Canada's highest court. In this decision, it was deemed that the rights to the timber on Saulteaux lands belonged to the Ontario provincial government and that the Indians' personal and usufructuary rights were dependant on the goodwill of the Sovereign.(2) Indians continued to have the right to hunt and fish in the territory, according to the treaties that had been established with the Crown, but the treaties expressly gave the provinces the right to take up lands for settlement, mining, lumbering or other purposes. The Natural Resources Transfer Agreement (Constitution Act, 1930)transferred the ownership of public lands and resources in Alberta from the Federal government to the Provinces. Treaty rights are included in this transfer as is the obligation of the province to settle treaty land entitlement claims.

That the Crown has the duty to act honourably so that the Treaty rights of Aboriginals are respected has been accepted since the Royal Proclamation of 1763. This decision was stressed in the Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 SCC 69, in which it was pointed out that the honour of the Crown was a treaty obligation cited in 1895 in the Province of Ontario v. Dominion of Canada and which was to be respected according to the Proclamation of 1763.

The Crown, however, has not always respected its own judgements and an example of this can be seen in the right of Aboriginals to counsel: in 1927, Section 141 of the amended Indian Act barred Indians from soliciting funds for legal counsel unless they had previously received the approval of the Minister of Indian Affairs, a section which was repealed in 1951.(3)

According the judgement, R. v. Sparrow, 1990, Aboriginal rights were deemed to be not absolute, in that they can be infringed upon, but this infringement must be justified. The Sparrow case concerned fishing rights and factors taken into consideration were whether the limit was unreasonable, if it imposed undue hardship, and if it denied holders of the rights of preferred means of exercising rights. The existence of valid legislative objectives such as conservation management was also taken into consideration, as well as questioning whether the honour of the Crown was upheld in the priority allocation of resources and in the minimal infringement of rights. In a situation of expropriation, there was also the question of fair compensation and whether the Aboriginal group was consulted in relation to the restrictions of the development.

The duty to consult and accommodate was set out by the Supreme Court, in 2004, in the Haida Nation v. British Columbia and Taku River Tlingit V. British Columbia cases. In this perspective, if developments are projected on lands that belong to Aboriginals and these can have an effect on their rights and their way of life, the Crown is under obligation to consult them, and make accommodations to protect their rights and way of life.

In the case of the Mikisew Cree First Nation v Canada,the people of the First Nation were not consulted by the Minister of Canadian Heritage in a decision to build a winter road through the Mikisew Reserve within the boundaries of Wood Buffalo Park.(4) The Mikesew Cree are in Northern Alberta and were signatories to Treaty 8, which promised them the right to hunt, fish and trap in the region, although according to the Treaty certain tracts could be taken for the purposes of settlement, mining, lumbering, trading or for other reasons.

When Wood Buffalo National Park was created, it incorporated the traditional lands of the Mikisew on Peace Point; however, their rights to continue to use the lands for their traditional way of life were respected. In the case of the winter road, the Supreme Court of Canada agreed that the Treaty Rights of the Mikisew were being infringed upon and that the construction of the road would impact their hunting territory by opening up the land to poachers because of the ease of access, disrupting the migration patterns of the animals, increasing road kill due to vehicles as well as affecting their rights to hunt. The Crown had a duty to consult, as it was aware that building the road would affect the Treaty rights of the First Nation. It was also in the position to be aware that "taking up land" according the Crown's right to exercise Treaty 8 right, it has the duty to act honourably. It cannot directly justify its actions according to the Sparrow analysis, but must "inform itself on the impact its project will have" on the First Nation concerned.(5)

In his decision, Justice Binnie began his statement by stating that the relationship between Aboriginal and Non-Aboriginal peoples has a long history of grievances and misunderstanding. He ends by stating that it is the duty of the Crown to respect Treaty obligations and to consult with the First Nations, as it is its fiduciary duty to do so.

It is certain that these Supreme Court decisions have affected how business is done in Alberta as concerns the exploitation of First Nations' lands. The province recognises the numbered treaties that were made between First Nations and the British Crown, and maintains a distinct Aboriginal policy framework, a relationship that has been entertained since 1987. The Province of Alberta much prefers negotiation and settlement to the great expense of litigation. Negotiations must be done in good faith and there must be equitable compensation.



(1) http://ngm.nationalgeographic.com/2009/03/canadian-oil-sands/kunzig-text/1

(2) David W. Elliot, Law and Aboriginal Peoples in Canada, Third Edition, Canadian Legal Studies Series, Captus University Publications, 1997, 23-24.

(3) Arthur J. Ray, I have lived here since the world bega : an illustrated history of Canada's native people, Toronto, Key Porter Books, 2005, p. 326.

(4) Supreme Court of Canada - Decisions - Mikisew Cree First Nation v. Canada (Minister...), http://scs.lexum.umontreal.ca/en/2005/2005scc69/2005scc69.html.

(5) Supreme Court of Canada - Decisions - Mikisew Cree First Nation v. Canada (Minister...), http://scs.lexum.umontreal.ca/en/2005/2005scc69/2005scc69.html , p. 5.

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