Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)
Court (s) Database
Federal Court Decisions
Date
2001-12-20
Neutral citation
2001 FCT 1426
File numbers
T-1141-01
Notes
Digest
Decision Content
Date: 20011220
Docket: T-1141-01
Neutral Citation: 2001 FCT 1426
BETWEEN:
MIKISEW CREE FIRST NATION
Applicant
- and -
SHEILA COPPS, MINISTER OF CANADIAN HERITAGE, and
THE THEBACHA ROAD SOCIETY
Respondents
REASONS FOR ORDER
HANSEN J.
INTRODUCTION
[1] This is an application for judicial review of the decision to approve construction of a winter road through Wood Buffalo National Park ("WBNP") ("Park") for a purpose not related to park management.
[2] On May 25, 2001, Parks Canada announced its determination pursuant to the Canadian Environmental Assessment Act, 1992, c.37 that construction of the winter road in WBNP would not cause significant environmental impacts, provided certain mitigation measures were implemented. Accordingly, the road was approved.
[3] The Mikisew Cree First Nation ("Mikisew") and its members claim treaty rights to hunt, trap, fish and carry out their traditional mode of life in the area encompassed by WBNP. Members of the Band contend their treaty rights will be impacted by the construction of the road.
[4] Mikisew claims the Minister's decision to approve the road was made without adequate consultation with the Band or its members, notwithstanding the fact Mikisew had clearly indicated to representatives of the Minister that Mikisew's treaty rights would be affected. The Minister takes the position that Mikisew's treaty rights in WBNP have been extinguished, therefore, consultation is not required. Alternatively, the Minister's position is that any infringement of Mikisew's rights caused by the operation or construction of the winter road can withstand scrutiny under the test articulated in R. v. Sparrow, [1990] 1 S.C.R. 1075.
Background
[5] The Mikisew Cree First Nation is an Indian Band as defined by the Indian Act, R.S.C. 1985, c. I-5, as amended, whose reserve lands are situated both near and within WBNP. Mikisew is a Treaty No. 8 First Nation; its ancestors, the Cree Indians of Fort Chipewyan, were signatories to Treaty No. 8 on June 21, 1899 at Fort Chipewyan.
[6] The respondent, the Thebacha Road Society ("Thebacha"), is the proponent of the road project. Thebacha is a non-profit organization registered in both the Northwest Territories ("NWT") and the Province of Alberta.
[7] WBNP is managed and protected under the Canada National Parks Act, 2000, c.32. It is located in northern Alberta and southern NWT. The Park has been designated a UNESCO world heritage site. The largest national park in Canada, WBNP covers 44,807 square kilometres of land that traverses the border between Alberta and the NWT. It contains the last remaining natural nesting area for the endangered whooping crane, the largest free-roaming, self-regulating bison herd in the world, unique gypsum-karst landforms and undisturbed natural boreal forests.
[8] First Nations people have inhabited WBNP for over 8,000 years. Today, subsistence hunting, trapping and fishing and commercial trapping still take place within the Park. The Park was established in 1922 to protect the last remaining herds of wood bison in northern Canada. Since 1949, resource harvesting within the Park has been governed by specific game regulations.
[9] In 1986, Mikisew (as represented by the Chief and Council of the Cree Band of Fort Chipewyan) and Canada (as represented by the Minister of Indian Affairs and Northern Development) entered into an agreement entitled the Treaty Land Entitlement Agreement ("TLEA"). In acknowledgement of the fact that the Crown had not fulfilled her obligations with regard to certain undertakings made in Treaty No.8, specifically the setting aside of sufficient reserve lands, the Crown undertakes to satisfy those obligations in this agreement. The Crown also agrees to provide cash compensation, some training and employment opportunities, and to share wildlife management responsibilities with the Band. As consideration, the Band undertakes to release the Crown from all obligations arising out of the specific section of Treaty No. 8 that deals with provision of reserve lands.
[10] On May 25, 2001, the respondent Minister of Canadian Heritage ("the Minister") made a decision authorizing Thebacha to construct a winter road through WBNP. The proposed winter road is 118 kilometres long and would connect two communities in WBNP: Peace Point and Garden River. Peace Point is a Mikisew reserve and Garden River is a settlement of the Little Red River Cree First Nation. The proposed road follows an abandoned right-of-way that was cleared for a winter road in 1958, but was only operational until 1960. The proposed road would have a right-of-way width of 10 metres, a width sufficient for two vehicles to meet and pass. Vehicle use would be restricted to pick-up trucks, cars and vans and the posted speed limits would range from 10 to 40 kilometres per hour.
[11] Pursuant to s. 36(5) of the Wood Buffalo National Park Game Regulations, the establishment of the winter road would result in the creation of 200 metre wide road corridor in which the use of firearms would be prohibited. The total area of this corridor would be approximately 23 square kilometres.
[12] There are approximately 14 Mikisew trappers residing in trapping area 1209, the area the proposed road would traverse. In addition, other Mikisew trappers who do not live in trapping area 1209 may still trap in that area. Further, there could be as many as 100 or more Mikisew hunters who hunt in the vicinity of the proposed road, although the Minister argues that the number of trappers and hunters potentially affected is significantly less.
[13] In addition to the alleged interference with its trapping and hunting rights, Mikisew submits the road would result in fragmentation of habitat, loss of vegetation, erosion, increased poaching, increased wildlife mortality due to vehicle collisions, increased risk to sensitive and unique karst landforms and the introduction of foreign invasive plant species brought in on the wheels of vehicles and the buckets of graders and back-hoes.
[14] Construction of a road along the route in question was accepted in principle in the WBNP Management Plan, issued in 1984. The route has been referred to as the Peace River Road route because of its proximity to the Peace River. The road currently proposed originated at meetings in August 1999 at Fort Smith, NWT between the Minister and supporters of the Peace River Road. The supporters of the project, led by Richard Power, formed Thebacha. They subsequently submitted a proposal to Parks Canada for re-establishment of a winter road along the right of way of the Peace River Road route.
[15] Parks Canada developed Terms of Reference for the environmental assessment of the winter road project. The Terms of Reference were given to Mikisew on January 19, 2000 along with the timelines for the assessment. As well, Mikisew was advised there would be a public review following the initial assessment by an outside consultant.
[16] An Environmental Assessment Report was completed by an independent agency, Westworth Associates Environmental Ltd.("Westworth"), in April 2000. The report noted the winter road would likely result in some fragmentation of habitat. Copies of this report were sent to Mikisew Chief George Poitras in the summer of 2000, but the applicant did not respond to this report during the 64 day period of public consultation.
[17] Following deliberations by the Chief and Council, in a letter dated October 10, 2000 Mikisew informed Josie Weninger, the Park Superintendent, that it did not consent to the construction of the road. The proposed route for the road would travel through its Peace Point Reserve. Further, Mikisew raised concerns about unresolved issues surrounding its role in the management of the Park, the subject of ongoing litigation, and identified the serious concerns of Mikisew trappers and their commitment to conservation of their traditional lands.
[18] Mikisew sent a letter to the Minister of Canadian Heritage, Sheila Copps, on January 29, 2001, expressing Mikisew's concerns with the proposed road through the Peace Point Reserve and with Parks Canada's failure to consult with Mikisew. As Mikisew had been informed that construction was to commence almost immediately, it invited Minister Copps, Minister of Indian Affairs Robert Nault, and Parks Canada CEO Tom Lee, to meet with Mikisew over the next week to discuss Mikisew's concerns, emphasizing the urgency of the situation.
[19] An alternative route, avoiding the Mikisew reserve, was chosen by Parks Canada and Thebacha. In March 2001, Parks Canada had Westworth complete a field inspection and biophysical resource assessment on the realignment. Mikisew was never consulted by Westworth in relation to these assessments.
[20] On May 25, 2001, a notice entitled "Parks Canada Determination Regarding the Thebacha Road Society Proposal to Reopen a Winter Snow Road in Wood Buffalo National Park" was posted to the WBNP website. The following appeared under the heading Finding and Determination:
Parks Canada and it's co-Responsible Authority HRDC have found the proposed reopening of the Garden River to Peace Point winter snow road is not in contradiction with Parks Canada plans and policy, (or other federal laws and regulations). It is determined that, taking into account the implementation of the Thebacha Road Society's mitigation measures, the project (construction, maintenance and operation of a winter snow road) is not likely to cause significant adverse environmental effects.
Subject to the implementation of the mitigating measures, including adaptive management and environmental management strategies, the winter snow road project is approved and can proceed.
The decision is attributed to the "Director General, Western and Northern Parks Canada Agency".
[21] A Construction and Operating Services Agreement was signed on July 3, 2001. It is anticipated by the respondent Thebacha that four permits will be issued under the National Park Fire Protection Regulations and the National Park General Regulations. These permits would give effect to the Agreement and provide mechanisms for the implementation of mitigation measures.
History of the Case
[22] On June 18, 2001, the Canadian Parks and Wilderness Society ("CPAWS") challenged the Minister's decision to approve the road by filing an application for judicial review in the Federal Court of Canada (File No. T-1066-01). The CPAWS application was based on administrative law grounds relating to the applicable framework of federal environmental legislation and regulations. The CPAWS application was heard by Gibson J. on September 27, 2001 in Vancouver. The application was dismissed by Order dated October 16, 2001.
[23] On June 25, 2001, Mikisew filed this application for judicial review. Mikisew's application relies on the same grounds contained in the CPAWS application but also relies on additional grounds specific to Mikisew. These include constitutional law principles relating to the Minister's fiduciary duty pursuant to s. 35(1) of the Constitution Act, 1982. In particular, Mikisew claims the Minister's decision was made without adequate consultation. Mikisew submits this breach of the Crown's fiduciary duty constitutes an unjustifiable infringement of Mikisew's constitutionally protected treaty rights.
[24] In early August 2001, Mikisew brought a motion for consolidation of these two judicial review applications pursuant to Rule 105(a) of the Federal Court Rules, 1998. The Minister subsequently brought a motion to have this judicial review application converted to an action. By Order dated August 13, 2001, I adjourned the motion for consolidation until the hearing of the Minister's motion for conversion.
[25] On August 27, 2001, when the motions were heard, the parties had reached an agreement. On consent, Dawson J. dismissed the motions for consolidation and conversion and ordered that the within matter would proceed on an expedited basis. Dawson J. also granted an interlocutory injunction preventing the commencement of construction on the road project until "this Court has finally adjudicated upon the within application for judicial review".
[26] Oral argument on this application was heard on October 26, 2001. Counsel for Mikisew presented evidence on the environmental law issues that was not before Gibson J. in the CPAWS application. This situation arose because counsel for the Minister elected not to file the affidavit of Josie Weninger, Park Superintendent, on the CPAWS application, but has filed it in this application.
Relief Sought
The applicant Mikisew seeks:
- an order reviewing and setting aside the decision of the Minister authorizing Thebacha Road Society to construct a winter snow road through WBNP;
- a declaration that the Minister has a fiduciary and constitutional duty to adequately consult with Mikisew Cree First Nation with regard to the construction of the road and the extent of that consultation to this date has been insufficient;
- an order of mandamus compelling the Minister to consult with Mikisew with respect to the scope, nature and extent of the impact the road may have on the exercise of Mikisew's treaty rights;
- an order prohibiting the Minister from making any further decisions with respect to the construction of the road until after the completion of the consultation process mandated by this Honourable Court;
- an order for costs; and
- such further and other relief as this Honourable Court deems just.
ISSUES
[27] The applicant framed the issues as follows:
1. Was the Minister's authorization of the proposed winter road through WBNP ultra vires the Canada National Parks Act and associated regulations ?
2. Did the information gaps in the environmental assessment prevent the Minister from making a proper determination under either the Canada National Parks Act or the Canadian Environmental Assessment Act regarding the approval of the road ?
3. Did the Minister breach principles of natural justice and administrative fairness in approving the road by:
1) failing to respect the applicant's right to be heard;
2) breaching the doctrine of legitimate expectations;
3) exhibiting bias, making her decision in bad faith or conducting herself in a manner that raises a reasonable apprehension of bias or pre-determination; or
4) failing to consider all relevant information in making her decision?
4. In approving the road, did the Minister fail to conduct herself in accordance with her fiduciary and constitutional duties to Mikisew in breach of subsection 35(1) of the Constitution Act, 1982 ?
[28] In light of the decision of Gibson J. on the CPAWS application, the applicant focussed the bulk of its arguments on the fourth issue. Therefore, I will begin my analysis with the discussion of the aboriginal and constitutional law issues.
ANALYSIS
In approving the road, did the Minister fail to conduct herself in accordance with her fiduciary and constitutional duties to Mikisew in breach of subsection 35(1) of the Constitution Act, 1982 ?
[29] Subsection 35(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, reads as follows:
35.(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
35.(1) Les droits existants - ancestraux ou issus de traités - des peuples autochtones du Canada sont reconnus et confirmés.
[30] The Supreme Court of Canada, in Sparrow, supra, at 1111-1119, sets out the now well-established test the Crown must meet when taking actions under their jurisdiction that impact on treaty or aboriginal rights. The following three questions form the framework for the analysis:
1) Is there an existing aboriginal or treaty right?
2) Has there been a prima facie infringement of the right?
3) Can the infringement be justified?
a) Is there a "compelling and substantial" objective?
b) Were the Crown's actions consistent with its fiduciary duty toward aboriginal people?
1. Is there an existing treaty right?
[31] The Sparrow analysis begins with the question of whether the First Nation can prove the existence of a treaty right.
[32] Chief George Poitras attests Mikisew have historic and constitutionally protected rights to hunt, trap, and fish and to use the land to pursue a traditional lifestyle. Furthermore, these rights extend to the land encompassed by WBNP. Mikisew submits its right to hunt, fish and trap is historically based in Treaty No.8. It states:
And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping, and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.
The principles of treaty interpretation
[33] In R. v. Badger, [1996] 2 C.N.L.R. 77 at paragraph 41, Cory J., writing for the majority, set out the principles to be applied in treaty interpretation:
... First, it must be remembered that a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. ... Second, the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of "sharp dealing" will be sanctioned. ... Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed. ... Fourth, the onus of proving that a treaty or aboriginal right has been extinguished lies upon the Crown. There must be "strict proof of the fact of extinguishment" and evidence of a clear and plain intention on the part of the government to extinguish treaty rights. [Citations omitted.]
[34] The Minister relies on R. v. Marshall [1999] 3 S.C.R. 456 at page 467 where Binnie J., for the majority stated:
The starting point for the analysis of the alleged treaty right must be an examination of the specific words used in any written memorandum of its terms...
And further, the Minister refers to page 474:
"Generous" rules of interpretation should not be confused with a vague sense of after-the-fact largesse. The special rules are dictated by the special difficulties of ascertaining what in fact was agreed to. The Indian parties did not, for all practical purposes, have the opportunity to create their own written record of the negotiations. Certain assumptions are therefore made about the Crown's approach to treaty making (honourable) which the Court acts upon in its approach to treaty interpretation (flexible) as to the existence of a treaty ... the completeness of any written record (the use, e.g., of context and implied terms to make honourable sense of the treaty arrangement ... and the interpretation of treaty terms once found to exist (Badger). The bottom line is the Court's obligation is to "choose from among the various possible interpretations of the common intention [at the time the treaty was made] the one which best reconciles" the Mi'kmaq interests and those of the British Crown...
[Citations omitted]
[35] The Minister's position is that the Court should not favour one or the other party's interpretation of the treaty, but rather attempt to ascertain the common intention or mutual understanding of the parties at the time the treaty was made.
[36] The intentions of the parties in entering into the treaty can be adduced from a consideration of extrinsic evidence. The Minister points out that recent decisions of the Supreme Court of Canada in R. v. Sundown, [1999] 1 S.C.R. 393, and Badger, supra, have held that extrinsic evidence of the historical and cultural context of a treaty may be received. Specifically, the Minister asks the Court to have reference to the historical record, the objectives of the government and the First Nations, and the political and economic context to determine the terms of Treaty No. 8. I agree that extrinsic evidence, to the extent that it can provide information about how the parties understood the terms of the agreement, can be valuable in giving content to the treaty.
The Crown's Intention
[37] According to the Minister, the Crown's intention in entering into the numbered treaties on the prairies is clear. In the Minister's view, this intention has been acknowledged by the Courts and is found in the Orders in Council establishing the Treaty Commissions, the report of the Treaty Commissioners and the treaty itself. The Minister points to the Supreme Court of Canada in Badger, supra, at paragraph 39, where the Court stated:
Treaty No. 8 is one of eleven numbered treaties concluded between the federal government and various Indian bands between 1871 and 1923. Their objective was to facilitate the settlement of the West. Treaty No. 8 made on June 21, 1899, involved the surrender of vast tracts of land in what is now northern Alberta, northeastern British Columbia, northwestern Saskatchewan and part of the Northwest Territories. In exchange for the land, the Crown made a number of commitments ...
[38] The Minister submits the very purpose of the numbered treaties was to obtain ownership to the lands for the purpose of their "taking up". This is confirmed, in the Minister's view, by the Supreme Court of Canada's comments with respect to Treaty No.6 in R v. Horse, [1988] 1 S.C.R. 187 at 198:
The ultimate objective of this treaty was for the Government to obtain ownership of the lands it covered and to open the surrendered lands to settlement...
[39] While I agree that the Court in Horse, supra, found that the intention of the Crown was to obtain ownership of the lands, the Court did not go so far as to say that the purpose of entering into the treaty was for the "taking up" of lands. The Minister's interpretation, in my view, cannot be reconciled with the text of the treaty. The treaty sets out that the First Nations will be able to pursue their traditional ways of life "throughout the tract surrendered", subject to regulations, and except in "such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes". The treaty makes it clear that the "taking up" of land will be the exception, not the rule. The "taking up" of land will happen gradually, perhaps temporarily, and deliberately. It clearly was not intended to occur automatically on all the land surrendered. The First Nations ceded title to the entire tract of land, but they surrendered use only in specific tracts as required by the Crown for other purposes.
The First Nations' Intention
[40] Mikisew submits it is evident from the historical accounts of the treaty negotiations that the First Nations signatories were greatly concerned about the restriction of their hunting and trapping activities. The applicant relies on the Report of the Treaty Commissioners, submitted to the Crown in 1899:
There was expressed at every point the fear that the making of the treaty would be followed by the curtailment of the hunting and fishing privileges.
We pointed out that...the same means of earning a livelihood would continue after the treaty as existed before it, and that the Indians would be expected to make use of them.
...
Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed. The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits. But over and above the provision, we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it.
[affidavit of Chief George Poitras, Exhibit "A", applicant's emphasis].
[41] The affidavit of Bishop Gabriel Breynat, sworn November 26, 1937, may also be relevant to understanding the agreement reached in Treaty No.8. The affidavit discloses numerous oral promises made to Mikisew's ancestors by the Crown, and indicates that the Crown told Mikisew's ancestors that those promises would be honoured even though they did not make it into the text of the treaty. Among the oral promises alleged to have been made by the Crown is the promise that Mikisew's traditional means of living would not be interfered with, and the "guarantee" that Mikisew would not be prevented from hunting and fishing as their ancestors had done.
[42] The Minister's submission is that very little weight should be given to the affidavit of Bishop Gabriel Breynat on account of evidentiary and substantive difficulties.
[43] The Minister submits the evidentiary difficulties associated with the affidavit are as follows:
i) The affidavit is not filed in any particular action;
ii) The applicant has not adduced any evidence about the purpose or purposes for which this affidavit was created.
[44] The Minister's substantive difficulties associated with the affidavit are as follows:
i) Bishop Gabriel Breynat purports to have been an interpreter for Treaty No. 8 but, his name is not listed as such within the text of the treaty;
ii) The affidavit was sworn 38 years after the signing of Treaty No. 8 at a point when Bishop Gabriel Breynat was 70 years old;
iii) The Treaty Commissioners were English speaking but the first language of Bishop Gabriel Breynat was French; and
iv) Bishop Gabriel Breynat is now deceased thus preventing any opportunity to test his evidence.
[45] The Minister submits that use of the Breynat affidavit in the interpretation of Treaty No. 8 would have the Court violate several principles of treaty interpretation. In the Minister's view, reading an absolute guarantee of the right to hunt and trap into the treaty would be effectively adding to its terms, would exceed what is possible on the language, and would not reflect Canada's intentions in relation to the treaty making process.
[46] The Minister's argument based on the fact that Bishop Breynat's first language was French is without merit. Bishop Breynat is noted as an interpreter for Treaty No.11, clearly indicating his fluency in English (the language spoken by the Treaty Commissioners) and the relevant First Nations languages. The fact that French is the Bishop's first language does not support the conclusion that Bishop Breynat may have been mistaken in his interpretation of the events surrounding the signing of Treaty No. 8.
[47] In Halfway River First Nation v. British Columbia (Ministry of Forests), [1999] B.C.J. No. 1880 the Breynat affidavit was found to be inadmissable because it was not properly proven. The applicant in that case failed to prove that the affidavit was produced from secure custody. However, the Court did note that there was no indication of suspicious circumstances in the swearing of the affidavit and proceeded to find a Treaty No. 8 right to hunt and trap notwithstanding the finding that the Breynat affidavit was inadmissible.
[48] In this case, the Breynat affidavit has been produced from secure custody and its authenticity has been verified. In my view, however, the oral promises spoken to in Bishop Breynat's affidavit simply corroborate other evidence, such as the Report of the Treaty Commissioners, that is not objected to by the Crown. Therefore, it is not necessary to resort to the evidence found in the Bishop's affidavit in order to determine that the intention of the First Nation, in entering into the treaty, was to maintain their traditional mode of living, including hunting, trapping and fishing, throughout their traditional lands.
[49] The text of Treaty No. 8 is a record of the oral exchange of solemn promises between the Crown and the First Nations. As such, and because it is written in English, the text is necessarily a reflection of the Crown's perspective of the agreement that was struck. Even so, the text explicitly grants the First Nations the right to continue hunting and trapping as they had always done, throughout the tract surrendered, subject to conservation and limited geographic restrictions.
[50] Oral promises made at the time the treaty was concluded give rise to rights under the treaty. The Courts must hold these promises in high regard if the honour of the Crown is to be upheld. Given the strenuous judicial calls for generous interpretations, and for ambiguities to be resolved in favour of the First Nations, it is my opinion that there is ample evidence, even without according any weight to the Breynat affidavit, on which to base the finding that a constitutionally protected treaty right to hunt and trap in WBNP arose out of the signing of Treaty No. 8. Next, I must consider whether that right has been extinguished.
Extinguishment
[51] In this section, I will consider whether the treaty right to hunt and trap in WBNP has been extinguished; either by statute, through the "taking up" of lands, through "visible incompatible use" or by regulation.
[52] Treaty rights are protected from extinguishment by the principle that the Crown must produce evidence of a "clear and plain intention" to extinguish the treaty right at issue. Cory J. in the majority judgment of the Supreme Court of Canada in Badger, supra, at paragraph 41, explains:
... the onus of proving that a treaty or aboriginal right has been extinguished lies upon the Crown. There must be "strict proof of the fact of extinguishment" and evidence of a clear and plain intention on the part of the government to extinguish treaty rights.
Extinguishment by statute
[53] The Minister maintains the creation of WBNP by Order in Council in April 1922 (P.C. No. 2498), had the effect of "overriding any treaty rights to the Park lands which may have been previously enjoyed" by Mikisew. Additionally, the Minister claims that a series of statutory instruments enacted for conservation purposes demonstrate a "clear and plain" intention to "suspend the treaty right to hunt and trap" within the boundaries of WBNP.
[54] The Regulations Respecting Game in Dominion Parks, Order in Council, December 1, 1919 (P.C. No. 2415) prohibited all hunting and trapping within the Park. However, a subsequent Order in Council dated April 30, 1926 enacted a permit scheme allowing persons who had hunted and trapped in WBNP prior to its establishment to continue their vocations.
[55] The applicant submitted a 1923 Public Notice of the Department of the Interior, produced from the secure custody of the National Archives of Canada, as evidence of the continued exercise of the treaty right, despite the establishment of the National Park. It states:
It is unlawful for any person other than bona fide natives, being Treaty Indians, to hunt or trap wild animals or birds within the boundaries of the Wood Buffalo Park. Any person violating this regulation will be prosecuted.
Treaty Indians must, however, conform to Park regulations with respect to closed seasons.
O.S. Finnie, Director
[56] This evidence simply confirms a fact that has been all but conceded by the Minister. Since WBNP was designated as a national park in 1922, hunting and trapping in the Park by First Nations has continued.
[57] I do not find a clear and plain intention to extinguish Mikisew's right to trap and hunt in the Park in either the establishment of WBNP or in the temporary regulation of that right for conservation purposes.
Have the lands been "taken up"?
[58] The plain language of Treaty No. 8 reveals only two limitations on the right to hunt and trap. Cory J. in Badger, supra, describes the limitations on the rights as follows at paragraph 40:
Treaty No. 8, then, guaranteed that the Indians "shall have the right to pursue their usual vocations of hunting, trapping and fishing". The Treaty, however, imposed two limitations on the right to hunt. First, there was a geographic limitation. The right to hunt could be exercised "throughout the tract surrendered ... saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes". Second, the right could be limited by government regulations passed for conservation purposes.
[59] Cory J. in Badger, supra, at paragraph 41, held that "any limitations that restrict the rights of Indians under treaties must be narrowly construed". Therefore, the provisions of Treaty No. 8 purporting to allow the "taking up" of lands (for various purposes) must be interpreted in a manner that honours the oral agreement. Since the "taking up" of lands by the Crown would effect an extinguishment of the treaty right in the area taken up, the "taking up" of lands may also only be effected by strict proof of a "clear and plain intention".
[60] The respondent Minister submits the Courts in R. v. Rider (1968), 70 D.L.R. (2d) 77 (Alberta Magistrates Court) and R. v. Norn, [1991] 3 C.N.L.R. 135 (Alberta Provincial Court) at page 141, determined that national parks constitute lands "taken up for other purposes" within the meaning of Treaty No. 8. Therefore, the Minister's position is that since the land has already been "taken up", Mikisew can no longer claim treaty rights on that land. However, the Court in Norn, found that although the land was "taken up" for other purposes, the treaty right to hunt and trap was not extinguished. The Minister also acknowledges that the decision in Norn is somewhat of an anomaly, given the substantial authority to the contrary. Further, the Minister submits that the comments on treaty rights may be considered obiter dicta, given that the Court found justifiable infringement in any event.
[61] The Supreme Court of Canada decision in Badger makes my consideration of these two cases unnecessary. In Badger, the Court held that whether the land has been "taken up" is a question of fact to be determined on a case-by-case basis. It turns on a determination of whether the lands in question have been put to a visible use that is incompatible with the exercise of the specific treaty rights claimed.
[62] This test was articulated at paragraph 54 of the Badger, supra, decision:
An interpretation of the treaty properly founded upon the Indians' understanding of its terms leads to the conclusion that the geographical limitation on the existing hunting right should be based upon a concept of visible, incompatible land use. This approach is consistent with the oral promises made to the Indians at the time the treaty was signed, with the oral history of the Treaty No. 8 Indians, with earlier case law and with the provisions of the Alberta Wildlife Act itself.
[63] The Court emphasized that the oral promises made by the Crown during treaty negotiations supported the "visible and incompatible land use" interpretation of the term. The Court concluded at paragraph 58:
Accordingly, the oral promises made by the Crown's representatives and the Indians' own oral history indicate that it was understood that land would be taken up and occupied in a way which precluded hunting when it was put to a visible use that was incompatible with hunting. Turning to the case law, it is clear that the courts have also accepted this interpretation and have concluded that whether or not land has been taken up or occupied is a question of fact that must be resolved on a case-by-case basis.
[64] The applicant submits that the threshold for establishing a visible and incompatible land use is high. The applicant points to Halfway River, supra, where a majority of the British Columbia Court of Appeal held that the granting of a logging permit over the traditional hunting territory of the Halfway River First Nation did not constitute a "taking up" of land under Treaty No. 8. The Court found that even though the activity in question constituted a "shared use" of the land, nevertheless, it was an infringement of the treaty right to hunt. Huddart J.A., in a concurring opinion, stated at paragraphs 172, 173 and 176:
I agree with Mr. Justice Finch that the District Manager's decision must be reviewed "in the context of the competing rights created by Treaty 8". On the facts as the District Manager found them, however, this is not a case of "visible incompatible uses" such as would give rise to the "geographical limitation" on the right to hunt as Cory J. discussed in Badger, supra.
I do not think that the District Manager for a moment thought that he was "taking up" or "requiring" any part of the Halfway traditional hunting grounds so as to exclude Halfway's right to hunt or extinguish the hunting right over a particular area, whatever the Crown may now assert in support of his decision to issue a cutting permit. At most the Crown can be seen as allowing the temporary use of some land for a specific purpose, compatible with the continued long-term use of the land for Halfway's traditional hunting activities. The Crown was asserting a shared use, not a taking up of land for an incompatible use ...
...
Nevertheless, a shared use decision may be scrutinized to ensure compliance with the various obligations on the District Manger, including his obligation to "act constitutionally", as I recall Crown counsel putting it in oral argument. Counsel agreed Sparrow provided the guidelines for that scrutinization on judicial review if a treaty right was engaged ...
Does use as a national park constitute a "visible and incompatible" use?
[65] To re-iterate, the test asks whether the use of the land as a national park is a visible use that is incompatible with the exercise of the right to trap and hunt by the First Nation.
[66] The Minister submits that national parks were established to protect the ecological integrity of a particular representative example of the Canadian landscape as well as to protect and preserve flora and fauna within that area. WBNP, in addition, has its own particular purpose. As set out within its enabling Order in Council, the stated purpose of the Park was to act as a preserve for the last remaining free roaming herd of wood bison. The Minister submits that its modern purpose has become the protection of the habitat of endangered migratory whooping cranes (whose nesting sites, the Minister adds, are remote from the road in issue), and the protection of a large boreal environment in pristine condition.
[67] The Minister concludes that treaty rights to hunt and trap within the borders of WBNP are incompatible with the purpose of the Park. The Minister feels that preservation of the Park's ecology and wildlife would be compromised if all Treaty No. 8 Indians were able to hunt and trap in the Park.
[68] The applicant relies on the holdings of the Supreme Court of Canada in Badger, supra, and R. v. Sundown, [1999] 1 S.C.R. 393 for the proposition that the exercise of First Nations treaty rights is not incompatible with the creation of the Park. In these cases, not only was there no clear and plain intention to extinguish the treaty right found, but the establishment of a park did not constitute a "taking up" of land for an incompatible purpose.
[69] The Court in Sundown, supra, at page 414, established that "the creation of a park is not necessarily incompatible with the exercise of hunting rights unless, perhaps, the park operates as a wildlife sanctuary that prohibits all hunting". In upholding the hunting rights of First Nations in Meadow Lake Provincial Park, the Court unanimously concluded:
... For example, if the park were turned into a game preserve and all hunting was prohibited, the treaty right to hunt might be entirely incompatible with the Crown's use of the land. See in this respect R. v. Smith, [1935] 2 W.W.R. 433 (Sask. C.A.). This position accords well with Myran v. The Queen, [ 1976] 2 S.C.R. 137, which held that there was no inconsistency in principle between a treaty right to hunt and the statutory requirement that the right be exercised in a manner that ensured the safety of the hunter and of others.
[70] The applicant submits that the purpose of WBNP cannot be incompatible with hunting. The applicant points to the Wood Buffalo National Park Game Regulations, SOR/78-830 which allows both natives and non-natives to hunt in the Park during open season as long as they have a permit. The applicant argues that there are no provisions in the Regulations that prohibit hunting by First Nations, and suggests that the Crown has recognized the treaty right to hunt in the Park since the Park's inception. The trial judge in Norn, supra, at page 139, considered the history of the Park and provided the background as follows:
It is important to consider this case in its historical context. Treaty No. 8 was executed by the parties in 1899. National parks were in existence and hunting within the parks was governed by regulations. At the time that Wood Buffalo National Park was created in 1922 the regulations prohibited hunting in all Dominion parks. The Wood Buffalo National Park was created to preserve and safeguard the Wood-bison, also known as Wood-buffalo, within their original habitat. The government was concerned that if such a reserve was not set aside the only remaining herd of buffalo in their native and wild state would become extinct. Pursuant to the provisions of s.18 of The Dominion Forest Reserves and Parks Act, and by Order in Council, dated the 18th day of December, 1922, part of the Treaty 8 land was designated as the National Park. The previously amended regulations, dated the 1st day of December 1919, were further amended by Order in Council, dated the 30th day of April 1926, to allow hunting within Wood Buffalo National Park by permit of those treaty Indians, who, previous to the establishment of the Park, had hunted in the area. Since 1926 the regulations have been amended and varied from time to time but a permit is still required for hunting within the Park [applicant's emphasis]
[71] In cross-examination, Josie Weninger, Park Superintendent, admitted that hunting and trapping in WBNP is not inconsistent with Parks Canada's regulatory regime (Cross-examination of Josie Weninger, October 1, 2001, page 1, lines 13 to 24). The applicant argues that this clearly points to the conclusion that the Crown has neither expressed a clear and plain intent to extinguish the right to hunt in the Park, nor has it "taken up" the land for a use incompatible with the right to hunt. In fact, the applicant submits that the situation would be more accurately described, as in Halfway River, as a "shared use" of the land.
[72] Finally, the applicant submits that the 1986 Treaty Land Entitlement Agreement ("TLEA") provides further evidence of Mikisew's existing treaty rights in WBNP. The applicant claims that the TLEA has great significance. First, it is a recognition by Canada that Mikisew has rights under Treaty No. 8, including rights within WBNP; and second, it recognizes that the exercise of Mikisew's treaty rights in WBNP is not an "incompatible use". While the "harvesting rights" guaranteed in Schedule 6 of the TLEA apply to the "traditional lands" of Mikisew and not the land to be traversed by the road in issue, they nevertheless are still within Park boundaries and, therefore, point to the conclusion that hunting and trapping by Mikisew is not incompatible with the use of the land as a national park.
[73] In my view, the lands of WBNP have not been "taken up" in a manner that is incompatible with a regulated right to hunt and trap by Mikisew. The Minister is defending a decision to build a road through this Park. Part of the Minister's strategy, as will be seen in the next section, includes pointing to the relatively few number of Mikisew hunters who will be affected by the road. At the same time, the Minister wishes to argue on this point that a treaty right to hunt and trap in the Park (exercised by the "few" Mikisew hunters) would be incompatible with the "modern purpose" of the Park which is to protect the habitat of endangered migratory whooping cranes and the protection of a large boreal environment in pristine condition.
[74] The Minister's appeals to 'ecological integrity' in this context are without merit. That is not to say hunting and trapping could never be found to be incompatible with the use of land as a national park. WBNP is a unique park; it is a vast and isolated wilderness. The exercise of hunting and trapping rights by Mikisew has coexisted with the use of the land as a national park since its inception. The following appears on the WBNP website maintained by Parks Canada:
Subsistence hunting, fishing and trapping still occur in Wood Buffalo National Park, as they have for centuries, and commercial trapping continues as a legacy of the fur trade. Traditional use of certain park resources by local Aboriginal groups is considered an important part of the park's cultural history. (http://parkscanada.pch.gc.ca/)
[75] As noted earlier, in Badger, supra, the Court held that whether the land has been "taken up" by the Crown is a question of fact to be determined on a case-by-case basis. On the facts before me, I am satisfied that the exercise of a right to trap and hunt is not incompatible with the use of land as a national park, particularly with respect to a park that is as large and as remote as WBNP.
Does regulation of the treaty right result in partial extinguishment?
[76] The Minister notes that s.35(1) of the Constitution Act states: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed". The Minister submits that in relation to the meaning of the term "existing" the Supreme Court of Canada has stated in Sparrow, supra, at page 1091:
The word "existing" makes it clear that the rights to which s. 35(1) applies are those that were in existence when the Constitution Act, 1982 came into effect. This means that extinguished rights are not revived by the Constitution Act, 1982. A number of courts have taken the position that "existing" means "being in actuality in 1982". [Citations omitted]
[77] I agree that the issue is whether prior to 1982 treaty Indians had a right to enter WBNP for the purposes of hunting and trapping or whether that particular right had been extinguished. It is the Minister's position that prior to 1982 there is little doubt that federal law could extinguish and/or alter treaty rights. As the Supreme Court of Canada noted in Marshall, supra, at page 496:
Until enactment of the Constitution Act, 1982, the treaty rights of aboriginal peoples could be overridden by competent legislation as easily as could the rights and liberties of other inhabitants. The hedge offered no special protection, as the aboriginal people learned in earlier hunting cases such as Sikyea v. The Queen, [1964] S.C.R. 642 and R. v. George, [1966] S.C.R. 267...
[78] The Minister submits the issue of a "regulated" treaty right must be addressed. According to the Minister, the Supreme Court of Canada in both Sparrow, supra, and R. v. Gladstone, [1996] 2 S.C.R. 723 concluded that regulation of First Nations' fishing did not amount to extinguishment because, although the activity was regulated, it was, nonetheless permitted. In the Minister's view, the important distinction is between that which was regulated but nonetheless permitted versus that which was not permitted.
[79] The Minister urges that the limited privilege to hunt and trap within the Park be appropriately characterized. In her view, the current hunting and trapping privileges enjoyed by some members of Mikisew is not a regulated Treaty No. 8 right. Instead, there is a strict prohibition on hunting and trapping in relation to which there is a limited exception which allows only a small definable group the privilege.
[80] In my opinion, the case law does not support the Minister's distinction between a right that is "regulated" and one that is "not permitted". In Gladstone, supra, the aboriginal right to sell herring was not extinguished by extensive regulation that included, at various times, a complete prohibition on the trade.
[81] In Sparrow, supra, at page 1092, the Court specifically rejected the view that regulation results in a partial extinguishment. The Court held that the right, provided it had not been extinguished by a clear and plain intention prior to 1982, could be considered to exist in its unregulated form. The word "existing" simply means to exclude those rights validly extinguished prior to the Constitution Act, 1982.
Conclusion
[82] The Crown's ability to declare that lands have been "taken up" for other purposes prior to the constitutionalization of treaty rights in 1982 is limited by the principles of treaty interpretation. Going back to Badger, supra, at paragraph 41, the Court held that "... any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. A corollary to this principle is that any l