Law on the side of First Nation on Omnibus bills

Yet another court ruling has come down telling Ottawa it needs to consult with First Nations, but there’s a difference with the decision rendered by Justice Roger Hughes on Dec. 19.

In the Mikisew Cree Nation’s challenge of the federal government’s decision to push through Omnibus bills C-38 and C-45 in 2012, the court tells Ottawa when that consultation needs to take place.

“Up until this point there hasn’t been a ruling which explicitly said there’s an obligation to consult about legislation,” said Jessica Clogg, executive director and senior counsel for West Coast Environmental Law.

Clogg’s organization provided affidavit evidence for Mikisew in its challenge of the two pieces of legislation, which had sweeping ramifications on budgets and environmental laws.

In his 64-page ruling, Hughes wrote, “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 possibly impact upon their ‘usual vocations’ together with an opportunity to make submissions….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” in 2012. 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 Mikisew, writing “the scope of the terms of such an order would be almost impossible to define.”

“It feels great that there’s some hope in the justice system of this country,” said Mikisew Chief Steve 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.”

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

“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?” said Courtoreille.

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 believes 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.

Clogg agrees.

“In 2012, the federal government made a series of legal changes in order to facilitate major oil and gas development and they hoped those changes would allow projects to move through quickly. But, in fact, what they’re seeing is that the failure to deal honourably with First Nations and their efforts to silence the public are backfiring on them and this case is just the latest example of the many problems that have resulted for the Crown,” she said.

There are numerous reasons why Mikisew’s legal victory should be lauded by Canadians, blogs Don Richardson, with Shared Value Solutions, a 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.

Clogg says the ruling “should be seen as opportunity for the Crown to collaborate fully with First Nations governments in designing legislation that could impact Aboriginal and treaty rights. First Nations should be front and centre in designing what’s appropriate.”

However, the federal government is not taking that stand and has decided to appeal the decision.

“We cannot comment further on this case as it is now back before the courts,” said Michelle Aron, communications advisor for Natural Resources Canada, in an email. “Our government remains committed to our plan for Responsible Resource Development, which strengthens environmental performance, enhances Aboriginal engagement and participation in natural resource development and creates jobs for Canadians.”