In a series of posts in 2012, we reported on the Harper government’s wholesale changes to Canada’s federal environmental legislation in its federal omnibus budget implementation bills C-38 and C-45 (Omnibus Bills).

In a decision released last month in Courtoreille v. Canada, the Federal Court of Canada has now held that the government had a duty to consult with the Misikew Cree First Nation (Mikesew) at the time that each of the Omnibus Bills was introduced into Parliament. That duty consisted in giving notice to the Misikew of the parts of each Bill that potentially impact the usual vocations of the Misikew, as defined in Treaty No. 8 and in giving the Misikew a reasonable opportunity to make submissions.

The Mikisew has historically occupied and harvested lands located within the Peace-Athabasca Delta and Lower Athabasca River regions, now forming part of north-eastern Alberta and neighbouring areas. In 1899, the Mikisew and other First Nations entered into Treaty No. 8 with the Crown.

The legislative amendments introduced by the Omnibus Bills included changes to the Fisheries Act and the Navigable Waters Protection Act (renamed the Navigation Protection Act) and replacement of the Canadian Environmental Protection Act, 1992 with the Canadian Environmental Protection Act, 2012.

The effect was to reduce the number of projects that required environmental assessment and/or approval and also to reduce the number of bodies of water required to be monitored by federal officials. This, in turn, arguably reduces the protection of Aboriginal fishing, trapping and navigation to such waters, including those located within the Mikisew’s Treaty No. 8 territory.  Chief Steve Courtoreille, therefor applied to the Federal Court on behalf of himself and the Mikesew for various forms of declaratory relief.

Our post dated July 12, 2012 – What does Canada’s federal budget mean for Aboriginal environmental rights? noted:

The process becomes opaque where the requirement for an approval is lost. So, for example, Bill C-38 removes decisions on major pipelines from the National Energy Board to the Cabinet. While this should still engage the honour of the Crown and the duty to consult, it becomes a political decision lacking the transparency and the due process of an approval. It also lacks a process for challenge save through the potentially expensive and difficult recourse  of a challenge in the courts.

For those projects that need neither permit nor Cabinet approval, it becomes even more  difficult to identify Government conduct that triggers the duty to consult, save perhaps where there is a “strategic, higher level decision” such as that found to trigger the duty by the Supreme Court of Canada in Sekani.

Some may argue that there are “strategic, higher level decisions” behind Bill 38 itself, which engage the honour of the Crown and which in turn required consultation before implementation.

Courtoreille successfully argues and answers this last point. It is certainly a significant moral victory for the Mikesew but is it a toothless tiger?

The Court viewed the case as falling at the low end of the spectrum of consultation envisioned by the Supreme Court of Canada in Haida Nation, “given that we have yet to see the application of these provisions to specific situations involving the Mikisew.”

Accordingly, it would only grant declaration that, upon the introduction of each of the Omnibus Bills into Parliament, notice should have been given to the Misikew 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.

This falls well short of the relief requested by the Mikesew, which included application for

• A declaration that the Ministers and the Governor General in Council are required to consult with Mikisew to ensure that Canada implements whatever measures are necessary to fulfill its obligations under Treaty 8
• An order that the Ministers not take any further steps or actions that would reduce, remove, or limit Canada’s role in any environmental assessment that is being carried out, or that may be carried out in the future, in Mikisew’s traditional territory until adequate consultation is complete

The Court viewed that as tantamount to a request for an injunction, which  would “place an undue fetter on the workings of government”. It went on “…pursuant to the principle of separation of powers, the Court cannot intervene into the law-making process to impose procedural constraints upon the Ministers of the Crown acting in their legislative capacity”

However, the Court concluded that the declaration that  it was making “may have an effect on the future respecting continuing obligations to the Misikew under Treaty No. 8”.

It is left unclear what level of regard government must accord to Aboriginal submissions in such circumstances, and what shape, if any, the duty to accommodate any unresolved concerns might take. Maybe a case where the legislative changes have more “specific” applications will produce a more specific remedy.