Mikisew Cree, Frog Lake begin litigation against omnibus bills

Less than a month after pledging at an Idle No More rally in Edmonton that the Mikisew Cree First Nation will fight the federal government on its lack of consultation, Chief Steve Courtoreille has made good on his promise.

On Jan. 8, the Mikisew Cree joined forces with Frog Lake First Nation and filed papers in the federal court in Ottawa for an application for a judicial review of omnibus Bills C-38 and C-45, alleging the federal government failed to meet its constitutional duty to consult.

“(Canadians) should be with us in support and send a message to Stephen Harper and his government that what they’re doing is wrong. They can’t ram bills down our throats and expect us to roll over and accept it because this is going to affect our future, affect the future of Canada,” said Courtoreille.

“They have done this with no consultation with us or with other Canadians,” said Frog Lake First Nation Chief Clifford Stanley.

The challenge is specifically focused on the environmental aspects of the bills, which include amendments to the Fisheries Act, the Environmental Protection Act and the Navigable Waters Protection Act, and the government’s lack of consultation in these areas.

“(The environment) is the clients’ priority. They’re in remote areas and they have a lot of members who are still using the off-reserve resources and they say there’s quite a bit of off-reserve development both in oil and gas country and particularly in the oilsands areas. And those are the things that mattered the most to them,” said Robert Janes, counsel for the two First Nations.

Janes says the government should have consulted with First Nations as soon as work began on the legislation.

He says his clients will not be seeking an interim injunction on the implementation of the two bills.

“It’s very hard to get the courts to stop things on an interim basis like this. Generally courts will say only in the exceptional cases should we interfere with government legislation before a final decision … (and) it would cost almost as much to try and stop it on an interim basis as it would to get to a hearing and deal with it,” said Janes.

Janes is not aware of any other First Nations taking legal action against the two omnibus bills but does expect that First Nations across the country will apply for intervener status.

George Poitras, CEO with MCFN, says Sturgeon Lake First Nation has expressed interest in participating as an intervener and Courtoreille has been receiving calls of support for the legal action undertaken by MCFN and Frog Lake First Nation.

Poitras also noted that the two First Nations made the decision to proceed with a judicial review because of timeliness and cost.

“We decided the legal challenge is going to be on a judicial review. A judicial review, as opposed to a full out law suit, is typically quicker to get to a decision, quicker to get to a Supreme Court level, and is less costly than a full out lawsuit,” he said.
Janes says a court date in the summer is possible.

“Although I also expect the government will take various steps to raise procedural questions about this case,” he said.

The legal challenge is only one more step in action taken by First Nations to challenge the federal government. Idle No More rallies, flash mobs and blockades, with the more recent rallies blocking Highway 63 in Fort McMurray and on Highway 881 at Heart Lake First Nation, both on Jan. 10, and Attawapiskat Chief Theresa Spence’s hunger strike have all raised the voices of First Nations.

“It’s all related,” said Poitras. “(The) actions are because of the government’s budget omnibus bills and it’s obviously why the First Nations are taking legal action.”

Spence began her hunger strike on Dec. 11, and was joined two days later by Cross Lake Elder Raymond Robinson. Spence is calling for the federal government to “commit to a meaningful dialogue to discuss engagement for implementation of treaty rights and inherent rights” before she will end her hunger strike.
Alberta Chiefs travelled to Ottawa to meet with Prime Minister Stephen Harper, on Jan. 11. However, speaking prior to the meeting, Treaty 6 Grand Chief Craig Makinaw said the meeting was only “a starting point (as) it is unreasonable to characterize this as a working meeting, when only one day has been allotted.”