Canada (Canadian Heritage) v. Mikisew Cree First Nation, 2004 FCA 66

Date: 20040213

Docket: A-35-02

Citation: 2004 FCA 66

CORAM:        ROTHSTEIN J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

                              SHEILA COPPS, MINISTER OF CANADIAN HERITAGE

                                                                                                                                                       Appellant

                                                                                 and

                                                   MIKISEW CREE FIRST NATION

                                                                                                                                                   Respondent

                                                                                 and

                                                  THE THEBACHA ROAD SOCIETY

                                                                                                                                                   Respondent

                                                                                 and

                                               ATTORNEY GENERAL OF ALBERTA

                                                                                                                                                     Intervener

                                       Heard at Edmonton, Alberta on September 29, 2003.

                                 Judgment delivered at Ottawa, Ontario on February 13, 2004.

REASONS FOR JUDGMENT BY:                                                                              ROTHSTEIN J.A.

CONCURRED IN BY:                                                                                                         SEXTON J.A.

DISSENTING REASONS BY:                                                                                        SHARLOW J.A.

Date: 20040213

Docket: A-35-02

Citation: 2004 FCA 66

CORAM:        ROTHSTEIN J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

                              SHEILA COPPS, MINISTER OF CANADIAN HERITAGE

                                                                                                                                                       Appellant

                                                                                 and

                                                   MIKISEW CREE FIRST NATION

                                                                                                                                                   Respondent

                                                                                 and

                                                  THE THEBACHA ROAD SOCIETY

                                                                                                                                                   Respondent

                                                                                 and

                                               ATTORNEY GENERAL OF ALBERTA

                                                                                                                                                     Intervener

                                                        REASONS FOR JUDGMENT

ROTHSTEIN J.A.

[1]                 Sharlow J.A. has conducted a thorough review of the facts and history of this case which I need not repeat. I agree with her findings that the creation of Wood Buffalo National Park did not constitute a "taking up" within the meaning of Treaty 8 and that the Mikisew's treaty right to hunt has not been abolished by statue. However, Sharlow J.A. did not determine whether the approval of a winter road between Peace Point and Garden River in the southwestern portion of the Park was a "taking up." She found that even if it was, such a "taking up" could still be a prima facie infringement of the Treaty 8 hunting rights that would have to be justified according to the test set out in R. v. Sparrow, [1990] 1 S.C.R. 1075. I am unable to agree.

[2]                 For the reasons that follow, I think that the approval of the road did constitute a "taking up" within the meaning of Treaty 8, properly interpreted according to the canons of Aboriginal treaty interpretation. As such, the Mikisew Cree First Nation have no continued right to hunt on land taken up for the road and there is no violation by the Minister of section 35 of the Constitution Act, 1982. There is therefore no need to apply the Sparrow analysis. Although, as a matter of good practice, the Minister might have consulted more extensively with the Mikisew before approving the road, she was not constitutionally obliged to do so.

ALBERTA'S STANDING TO RAISE THE "TAKING UP" ARGUMENT

[3]                 On appeal, the issue of whether the approval of the road was a "taking up" was raised by the Intervener the Attorney General of Alberta. At the hearing of the appeal, counsel for the Minister at first indicated that the Minister had abandoned this issue but later clarified that the Minister was simply not relying on it. Sharlow J.A. is of the opinion that it would be wrong for this Court to affirm the Minister's decision on a ground upon which the Minister herself chooses not to rely.

[4]                 It is true that "an intervenor in an appellate court must take the case as she finds it and cannot, to the prejudice of the parties, argue new issues which require the introduction of fresh evidence" (Batchewana Indian Band v. Canada (Minister of Indian and Northern Affairs), [1996] F.C.J. No. 660 at paragraph 2 (C.A.)). However, that is not what Alberta is attempting to do.

[5]                 Alberta was granted leave to intervene on, among other things, "the issues raised in grounds 2 and 3 of the Notice of Appeal." Ground 2 reads as follows:

In the alternative, if there are treaty rights to hunt and trap within Wood Buffalo National Park, the judge made an error of law in finding that the Minister's decision to approve the winter road within Wood Buffalo National Park constituted an infringement of treaty rights.

I agree with Sharlow J.A. that there are still treaty rights to hunt and trap within Wood Buffalo National Park. Alberta's position is that the approval of the road was not an infringement of those treaty rights because taking up land for use as a road is a geographical limitation of the treaty right to hunt and trap provided for in the treaty itself. The submission that Alberta is making is one that falls squarely within the scope of the permitted intervention.

[6]                 Even though the Minister's counsel chose not to rely on this argument at the hearing of the appeal, the question of whether the approval of the road constituted an infringement of the Mikisew's treaty right to hunt was still a live issue. This argument was raised by the Minister in the Trial Division (as it then was) but dismissed on the grounds that even if the road approval was a taking up, it would still need to be justified according to the Sparrow analysis (paragraphs 84-86). Accordingly, Alberta was entitled to make submissions on appeal. After all, "the purpose of an intervention is to present the court with submissions which are useful and different from the perspective of a non-party ...." (R. v. Morgentaler, [1993] 1 S.C.R. 462 at paragraph 1).

[7]                 While the Minister does not rely on the argument raised by Alberta, she has not contradicted or otherwise disavowed Alberta's position. Nor has she made admissions or taken a position inconsistent with Alberta's arguments. For these reasons, I am of the view that the issues raised by the Attorney General of Alberta may be considered in assessing the constitutionality of the Minister's decision to approve the road.

WAS THE APPROVAL OF THE ROAD A "TAKING UP"?

[8]                 Alberta says that the approval of the road cannot be a constitutional infringement because the land for the road has been "taken up" in accordance with a geographic limitation that is expressly stated in the treaty.

[9]                 The relevant portion of Treaty 8 reads as follows:

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 Supreme Court analyzed the extent of this treaty right to hunt in R. v. Badger, [1996] 1 S.C.R. 771. As Cory J. pointed out, "by the terms of Treaty No. 8, the Indians' right to hunt for food was circumscribed by both geographic limitations and by specific forms of government regulation" (paragraph 37).

[10]            It is true that, on the facts of Badger, the treaty right to hunt was subject to section 12 of the Natural Resources Transfer Agreements (NRTA) as given effect by the Constitution Act, 1930. Here, the NRTA does not apply because Wood Buffalo National Park remained vested in the Government of Canada under section 14 of the NRTA. However, Cory J. held that "the geographical limitation on the right to hunt for food provided by Treaty No. 8 has not been modified by para. 12 of the NRTA" (paragraph 66). His analysis is therefore equally applicable to the unmodified Treaty 8 right to hunt.

[11]            Cory J. examined the oral history of the signatories in order to determine how the parties would have understood the geographical limitation on the right to hunt. He concluded that "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" (paragraph 54).

[12]            Putting land to use as a winter access road, on or within 200 metres of which the use of firearms is prohibited, is clearly visibly incompatible with hunting on the land.

[13]            Although constructing roads is not one of the express geographic limitations referred to in Treaty 8, the express limitations are not exhaustive. Treaty 8 specified that lands may be taken up "for settlement, mining, lumbering, trading or other purposes." Roads are not expressly mentioned as one of these contemplated uses, but settlement, mining, lumbering, and trading all necessarily imply access and transportation. In turn, access and transportation necessarily imply the construction of roads. A road therefore is another purpose for which land may be "taken up" under Treaty 8. In Badger, Cory J. cited [1980] 2 S.C.R. 89">R. v. Mousseau, [1980] 2 S.C.R. 89, as an example of Crown land being taken up for a public road (paragraph 59). The approval of the road therefore did constitute a "taking up" within the meaning of Treaty 8.

CAN TAKING UP LAND BE A PRIMA FACIE CONSTITUTIONAL INFRINGEMENT?

[14]            Section 35 of the Constitution Act, 1982 constitutionalized "the existing aboriginal and treaty rights of the aboriginal peoples of Canada" [emphasis added]. In order to determine whether there has been a prima facie infringement of a constitutionally-protected treaty right, it is therefore necessary to determine the scope of the treaty right that existed in 1982.

[15]            Sharlow J.A. says that Treaty 8 should not be interpreted as if it were just an ordinary contract. I agree. Aboriginal treaties should be liberally construed and any uncertainties, ambiguities, or doubtful expressions should be resolved in favour of the Indians. The words of the treaty must not be interpreted in their strict technical sense but rather must be interpreted in the sense that they would naturally have been understood by the Indians at the time of the signing (Badger at paragraph 52).

[16]            However, in Badger, Cory J., after considering the context in which Treaty 8 was signed and the oral history of its signatories, held that:

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. (paragraph 58).

[17]            As Cory J. held, a proper interpretation of Treaty 8 indicates that the parties never intended the treaty right to hunt to be an unlimited right; rather, the Indians were willing to accept settlement and other uses of the land that would restrict their right to hunt so long as sufficient unoccupied land would remain to allow them to maintain their traditional way of life.

[18]            With the exceptions of cases where the Crown has taken up land in bad faith or has taken up so much land that no meaningful right to hunt remains, taking up land for a purpose express or necessarily implied in the treaty itself cannot be considered an infringement of the treaty right to hunt. Neither of these exceptions apply here. This is not a case where the Minister has acted in bad faith; nor, as the land required for the road corridor comprises approximately 23 square kilometres out of the 44,807 square kilometres of Wood Buffalo National Park or the approximately 840,000 square kilometres encompassed by Treaty 8, is this a case where no meaningful right to hunt remains.

[19]            The treaty right to hunt has always been limited by the fact that hunting is not permitted on land that has been taken up. It is the right to hunt on land which is not required for settlement, mining, lumbering, trading or other purposes which obtained constitutional protection when section 35 came into force.

[20]            In Badger, Cory J. recognized the limited nature of the treaty right to hunt. He found that Mr. Badger and Mr. Kiyawasew were hunting on land that was visibly being used. As their treaty right to hunt did not extend to hunting on such land, the hunting limitations set out in the provincial Wildlife Act did not infringe their existing right and were properly applied to them (paragraph 67). Accordingly, Cory J. did not find a prima facie infringement of section 35 and did not apply the Sparrow test to those defendants.

[21]            Where a limitation expressly provided for by a treaty applies, there is no infringement of the treaty and thus no infringement of section 35. This is to be contrasted with the case where the limitations provided by the treaty do not apply but the government nevertheless seeks to limit the treaty right . In such a case, the Sparrow test must be satisfied in order for the infringement to be constitutionally permissible.

[22]            Sharlow J.A. relies on the reasons of Finch J.A. in Halfway River First Nation v. British Columbia (Ministry of Forests) (1999), 64 B.C.L.R. (3d) 206, 1999 BCCA 470 as support for the proposition that a "taking up" could itself be a prima facie infringement of the Mikisew's treaty rights. However, I find that I am bound by the analysis of Cory J. in Badger which is directly applicable to the facts of this case.

[23]            As the approval of the road constituted a taking up within the meaning of Treaty 8, the Mikisew's treaty right to hunt on the road corridor is suspended for as long as it is being used for a purpose visibly incompatible with hunting. There therefore has been no infringement of Treaty 8, as constitutionalized by section 35, that requires the application of the Sparrow test.

[24]            Although the Minister was not obligated to consult with the Mikisew before approving the road project, it may well have been good practice for her to have consulted more extensively than she did. However, the advisability and extent of such consultation was within the Minister's discretion. There is no basis for this Court interfering with that exercise of discretion.

CONCLUSION

[25]            A number of environmental and administrative law issues were raised in the Mikisew's original application for judicial review. The Trial Division judge did not consider it necessary to deal with these issues given her finding on the constitutional issue. The Mikisew did not address these issues in their factum or in oral argument. Nor have they requested that the matter be sent back to the Federal Court for a determination of those issues.

[26]            The appeal should be allowed, the decision of the Trial Division set aside, and the decision of the Minister of Canadian Heritage restored.

                                                                                 "Marshall Rothstein"           

                                                                                                              J.A.                        

"I agree

J. Edgar Sexton J.A."

SHARLOW J.A. (dissenting)

[27]            The Minister is appealing a judgment of the Federal Court setting aside the decision of the Minister of Canadian Heritage to approve the construction of a winter road through Wood Buffalo National Park: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2001), 214 F.T.R. 48, [2002] 1 C.N.L.R. 169 (F.C.T.D.). The statutory authority for the Minister's decision is section 8 of the Canada National Parks Act, S.C. 2000, c. 32.

[28]            A number of issues are raised in this appeal. My discussion is organized under the following headings:

A.        Facts

B.          Standard of Review

C.        Was notice required under section 57 of the Federal Courts Act?

D.        Do Treaty 8 hunting rights subsist in Wood Buffalo National Park?

(1)        Has the land comprising Wood Buffalo National Park been "taken up" by the Crown?

(2)        Is the land comprising Wood Buffalo National Park "occupied Crown land"?

(3)        Have hunting rights been abolished by statute within Wood Buffalo National Park?

(4)        Conclusion

E.         Prima facie infringement

(1)        The establishment of the road as a "taking up"

(2)        Was the winter road approval a prima facie infringement?

F.         Justification

(1)        First branch: the objective of the decision

(2)        Second branch: the Crown's obligation as fiduciary

G.        Conclusion

A. Facts

[29]            Mikisew Cree First Nation is an Indian Band as defined by the Indian Act, R.S.C. 1985, c. I-5. George Poitras is the Chief of Mikisew Cree First Nation.

[30]            The members of Mikisew Cree First Nation are descendants of the Cree Indians of Fort Chipewyan who signed Treaty 8 on June 21, 1899 at Fort Chipewyan. Accordingly, they are entitled to the benefits of Treaty 8.

[31]            The relevant portions of Treaty 8 read as follows (my emphasis):

[32]            The "tract of country bounded and described" in Treaty 8 is the area in which the Aboriginal signatories were guaranteed the right to hunt, trap and fish, subject to the other terms of the Treaty. That area encompasses 840,000 square kilometres of what is now northern Alberta, northeastern British Columbia, northwestern Saskatchewan and the southern portion of the Northwest Territories.

[33]            Wood Buffalo National Park was created in 1922 and expanded in 1926. The area that is now Wood Buffalo National Park is partly in Alberta and partly in the Northwest Territories. It is administered from Fort Smith, Northwest Territories, located near the northeastern boundary of the Park.

[34]            Wood Buffalo National Park is located entirely within the area of Treaty 8, occupying approximately 5% of that area. Thus, all of the land now comprising Wood Buffalo National Park is land on which the Aboriginal signatories to Treaty 8 had the right to hunt, trap and fish before the Park was established.

[35]            An agreement dated December 23, 1986 resulted in the establishment of a number of reserves for Mikisew Cree First Nation, including a reserve at Peace Point, which is located within the boundaries of Wood Buffalo National Park on the all weather road that runs into the Park from Fort Smith. The area of the Peace Point Reserve has been formally removed from the Park, although the Park surrounds it.

[36]            The 1986 agreement provided for the continuation of hunting rights within the Park, subject to regulation and to the advice and recommendations of a Wildlife Advisory Board consisting of four members of Mikisew Cree First Nation, three persons appointed by the Crown and, as a non-voting member, the Superintendent of the Park.

[37]            The proponent of the winter road through Wood Buffalo National Park is the respondent The Thebacha Road Society, a non-profit organization registered in both the Northwest Territories and Alberta. Its members include the Town of Fort Smith (located in the Northwest Territories on the northeastern boundary of Wood Buffalo National Park), the Fort Smith Métis Council, Salt River First Nation, and Little Red River Cree First Nation.

[38]            A winter road is essentially an ice road, constructed annually in early winter when there is sufficient snow to be compacted and watered to create an ice base. The road disappears in the spring when the snow and ice melt. The right of way for a winter road is permanent, as long as it is kept clear of trees and bushes.

[39]            The record contains ample evidence that the construction of the winter road is supported by individuals living in and near Wood Buffalo National Park, including residents of Fort Smith and individuals from the First Nations who are members of The Thebacha Road Society. The anticipated benefits of the winter road to its proponents are obvious and well documented.

[40]            The proposed winter road would be 118 kilometres long, joining Peace Point and Garden River, a settlement of the Little Red River Cree First Nation that is located within Wood Buffalo National Park, near the southwestern boundary, and would thus connect with the Alberta highway system. Most of the route of the proposed winter road would follow an abandoned right of way that was cleared for a winter road in 1958, but was only operational until 1960. It would be wide enough to allow two vehicles to meet and pass. The road allowance would be 10 metres wide. Vehicle use would be limited to pick-up trucks, cars and vans. The posted speed limits would range from 10 to 40 kilometres per hour.

[41]            Pursuant to s. 36(5) of the Wood Buffalo National Park Game Regulations, SOR/78-830, the establishment of the winter road would result in the creation of a 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 (approximately .05% of the total area of Wood Buffalo National Park).

[42]            There are approximately 14 trappers who are members of Mikisew Cree First Nation and who reside in the trapping area to be traversed by the proposed road. There are other members of Mikisew Cree First Nation who may trap in that area although they do not live there. There may be as many as 100 such individuals who hunt in the vicinity of the proposed winter road. Mikisew Cree First Nation is concerned that 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.

[43]            Construction of a road along the route in question was accepted in principle in 1984. In the summer of 1999, a meeting was held at Fort Smith between government officials and supporters of the road. The supporters later formed The Thebacha Road Society and submitted a proposal to Parks Canada for the re-establishment of a winter road along the route of the 1958 winter road. The proposed road would cross a 0.8 km long section of the Peace Point Reserve at the east end to connect with the existing all weather road from Fort Smith. Parks Canada developed terms of reference for the environmental assessment of the winter road project.

[44]            Mikisew Cree First Nation was informed by The Thebacha Road Society of their desire to construct a winter road from Peace Point to Garden River. The Thebacha Road Society asked Mikisew Cree First Nation to support the road. Mikisew Cree First Nation advised that it would have to explore the proposal in detail and consider whether the road would be in their best interests.

[45]            On January 19, 2000, Parks Canada provided Mikisew Cree First Nation with a copy of the terms of reference for the environmental assessment and advised on the timelines for responses and the subsequent public review period. The environmental assessment report was completed by an independent agency, Westworth Associates Environmental Ltd., in April of 2000. The report noted that the winter road would likely result in some fragmentation of habitat. Chief Poitras was provided with copies of the Environmental Assessment Report in August of 2000. Mikisew Cree First Nation did not respond to the report during the 64 day period of public consultation.

[46]            On July 20, 2000, Park Superintendent Josie Weninger met with Chief Poitras and provided him with more information regarding the status of the proposed road project. On July 25, 2000, an open house was held by Parks Canada at Fort Chipewyan. It was attended by two trappers who are members of Mikisew Cree First Nation.

[47]            On August 3, 2000, Park Superintendent Weninger met with Chief Poitras and gave him an update on the status of the road proposal. By letter dated August 16, 2000, Lawrence Vermillion, a Mikisew Cree First Nation trapper, sent a letter to Richard Power of The Thebacha Road Society, with a copy to Park Superintendent Weninger, outlining the concerns of seven Mikisew Cree First Nation trappers who trap in the area of the proposed road. Among the concerns raised were impacts on the furbearers, increased vandalism and poaching, and possible compensation.

[48]            On October 10, 2000, Mikisew Cree First Nation informed Park Superintendent Weninger by letter that it did not consent to the construction of the road through its Peace Point Reserve for a number of reasons. In particular, Mikisew Cree First Nation raised concerns about unresolved issues surrounding its role in the management of the Park, which was the subject of litigation, and identified the concerns of Mikisew Cree First Nation trappers and their commitment to conservation of park lands.

[49]            On January 19, 2001, Chief Poitras made a trip to Fort Smith for a planned a meeting with Park Superintendent Weninger. Ms. Weninger took ill, and the Chief and Council met with Senior Policy Advisor Don Aubrey instead. They discussed a number of issues at the meeting, but most significantly Mikisew Cree First Nation learned that Parks Canada and The Thebacha Road Society had been engaged in ongoing discussions concerning the road initiative, and that the road was very near approval. Chief Poitras asked Mr. Aubrey to have Ms. Weninger call him immediately upon her return to work to discuss the decision-making process and specifically, to discuss Mikisew Cree First Nation's exclusion from it.

[50]            On January 25, 2001, Chief Poitras spoke with Richard Power of The Thebacha Road Society. Mr. Power denied having knowledge of Mikisew Cree First Nation's concerns with the road, as set out in the letter of October 10, 2000, and asked that Mikisew Cree First Nation forward him a copy. Mr. Power advised the Chief that Parks Canada had led The Thebacha Road Society to believe that Mikisew Cree First Nation had no objection to the road going through the reserve, and that he had just been informed for the first time by Tom Lee, the Chief Executive Officer of Parks Canada, that Mikisew Cree First Nation did not support the road.

[51]            On January 29, 2001, Chief Poitras and the Council of Mikisew Cree First Nation met with The Thebacha Road Society representatives. The Thebacha Road Society sought the support of Mikisew Cree First Nation, but the Chief and Council explained they were extremely frustrated by the manner in which Parks Canada had been handling the process. The Chief and Council circulated a letter they had just sent to the Minister, and told the representatives of The Thebacha Road Society that they would have to wait to hear from the Minister with regard to their concerns before they could give The Thebacha Road Society an answer. The Thebacha Road Society also committed to lobby their MLA and MP to impress on the Minister the urgency of meeting with Mikisew Cree First Nation on the road initiative.

[52]            It was apparently at that meeting that Mikisew Cree First Nation learned that the commencement of construction was imminent. On the same day, Mikisew Cree First Nation sent a letter to the Minister expressing their concerns with the proposed road, and with Parks Canada's failure to consult with Mikisew Cree First Nation. They proposed a meeting the following week with the Minister, Mr. Lee and the then Minister of Indian Affairs, emphasizing the urgency of the situation.

[53]            On February 2, 2001, Chief Poitras spoke to Park Superintendent Weninger. She advised him that The Thebacha Road Society was working on a proposal for an alternative route. There is conflicting evidence as to the content of the discussion. The Minister submits that traplines were discussed. Mikisew Cree First Nation submits that Chief Poitras asked to be involved in any deliberations on an alternative route, but Ms. Weninger was very vague with regard to what the route was and where the process was going from there.

[54]            On February 5, 2001, Chief Poitras contacted Mr. Power of The Thebacha Road Society, and informed him that Mikisew Cree First Nation was still waiting to hear from the Minister, and its position on the road had not changed. Chief Poitras confirmed the conversation in a letter dated February 5, 2001. On the same day, Chief Poitras also spoke with Park Superintendent Weninger and again asked her about the alternative route. She advised him that they were still looking at two possible routes and also notified him about her research into ex gratia payments to individual trappers. When Chief Poitras met with the Peace Point trappers, they advised him that they had also expressed their concerns to Park Superintendent Weninger. They had told her that they were greatly concerned about the impact the road would have on their traplines, and that offering compensation did not solve the issue because once the nature of the land was changed, the damage could not be undone.

[55]            On February 9, 2001, Mikisew Cree First Nation received a standard-form response letter from the Minister's office stating that its correspondence "will be given every consideration".

[56]            In March of 2001, Parks Canada and Westworth Associates Environmental Ltd. completed the field inspection and biophysical resource assessment on a realignment of the winter road that would avoid the Peace Point Reserve. The new proposal was that the road would track the Peace Point Reserve by extending 10 metres from the Reserve boundary for 2.5 kilometres before joining the all weather road from Fort Smith. Mikisew Cree First Nation was never informed that the route for the realignment had been chosen, and was not consulted on the realignment, or the related environmental assessments.

[57]            In March and April of 2001, Chief Poitras spoke on the telephone several times with Park Superintendent Weninger and Gaby Fortin, Director General West of Parks Canada, attempting to arrange a meeting with Parks Canada to address Mikisew Cree First Nation's concerns. It was extremely difficult to get a meeting arranged, for both parties, and a number of phone calls went back and forth. On April 27, 2001, Chief Poitras finally met with Gaby Fortin in Calgary. At that meeting the Chief learned the route of the realignment. He asked that someone meet with Mikisew Cree First Nation's Council to make a full presentation on the realignment, and was informed that it could not be done until after the formal announcement of the approval. The Chief strongly disagreed and was promised that a presentation would take place in Mikisew Cree First Nation's Council Chambers on May 2, 2001. Chief Poitras attested that Parks Canada made it very clear to him that the decision had already been made to approve the realignment.

[58]            In response, Gaby Fortin sent Mikisew Cree First Nation a letter dated April 30, 2001 apologizing for excluding Mikisew Cree First Nation from the consultation process. The letter stated in part: "I apologize to you and your people for the way in which the consultation process unfolded concerning the proposed winter road and any resulting negative public perception of the MCFN. It was never Parks Canada's intention to exclude you from the process nor to place the MCFN in a negative light in the community."

[59]            On May 2, 2001, a meeting was held between Park Superintendent Weninger, Gaby Fortin, and the Chief and Council of Mikisew Cree First Nation. They discussed Mikisew Cree First Nation's January 2001 letter to the Minister. The Chief and Council emphasized Mikisew Cree First Nation's dissatisfaction with being excluded from the road proposal process.

[60]            On May 17, 2001, Mikisew Cree First Nation sent the Minister another letter informing her of its concerns with the realignment. Mikisew Cree First Nation expressed their disappointment and concern over Parks Canada's failure to consult, particularly in light of the fact that Parks Canada was aware, at least as of October 2000, that Mikisew Cree First Nation had substantial concerns with regard to the proposed road.

[61]            On May 25, 2001, Mr. Lee issued a message to all staff announcing the approval of the road and indicating that Parks Canada would not consider an all-weather road proposal. Gaby Fortin called Chief Poitras to inform him of the decision. Mr. Lee also sent a letter to Chief Poitras as a formal response to the May 17, 2001 letter to the Minister. The letter indicated that Parks Canada recognized that the consultation process had not been adequately conducted, but pointed out that there had been meetings and discussions between Mikisew Cree First Nation and Parks Canada.

[62]            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 website of Wood Buffalo National Park. The following appeared under the heading "Finding and Determination":

[63]            The Crown has entered into an agreement with The Thebacha Road Society providing for the construction and operation of the winter road. At the time of the hearing of this matter in the Federal Court, it was anticipated that permits would be issued to give effect to the agreement and provide mechanisms for the implementation of mitigation measures.

[64]            On June 18, 2001, Canadian Parks and Wilderness Society filed an application for judicial review to challenge the Minister's decision to approve the construction of the winter road. The application was based on administrative law grounds relating to the applicable framework of federal environmental legislation and regulations. The application was dismissed on October 16, 2001: Canada Parks and Wilderness Society v. Canada (Minister of Canadian Heritage), (2001), 212 F.T.R. 1 (F.C.T.D.), affirmed (2003) 1 C.E.L.R. (3d) 20 (F.C.A.).

[65]            On June 25, 2001, Mikisew Cree First Nation filed the application for judicial review that resulted in the decision now under appeal. That application raised the same issues as the previous application of Canadian Parks and Wilderness Society, which have now been decided in favour of the Minister. It also relied on additional grounds specific to Mikisew Cree First Nation. Those are the issues that were determined by the Judge in favour of Mikisew Cree First Nation, giving rise to this appeal by the Minister.

[66]            The basis of the judgment is that the rights of the people of Mikisew Cree First Nation under Treaty 8 were infringed because the Minister's decision was not preceded by adequate consultation. The Minister appeals that judgment, and seeks restoration of the Minister's decision.

B. Standard of review

[67]            The Judge did not specifically address the question of standard of review. However, it is clear that with respect to the issues raised before her, the Judge applied a standard of correctness. In my view, she was correct to do so.

[68]            The Minister's decision was challenged on the basis that it was made without recognizing or taking into account certain Aboriginal rights, and resulted in an unjustified breach of those rights. That was a challenge based on one or more errors of law. As the Minister has no special expertise on such questions, and there is no preclusive clause in the legislation pursuant to which her decision was made, there was no basis upon which the Judge could or should have applied any standard of review except correctness.             

[69]            This Court must apply the correctness standard to the decision of the Judge, to the extent it consists of questions of law. Her findings of fact must be reviewed on the standard of palpable and overriding error. Any findings of mixed fact and law must be reviewed on the standard of palpable and overriding error, except to the extent they are based on an error of law.

C. Was notice required under section 57 of the Federal Courts Act?

[70]            I will deal first with a procedural point. The Attorney General of Alberta was not given notice of the proceedings in the Federal Court and was not a party to those proceedings, but has been permitted to intervene in the appeal on the basis of Rule 110 of the Federal Court Rules, 1998, SOR/98-106: see Canada (Minister of Canadian Heritage) v. Mikisew Cree First Nation (2002), 293 N.R. 182. Rule 110 provides, among other things, that the Attorney General of a province may apply for leave to intervene in any proceeding in this Court if a "question of general importance" is raised.

[71]            Alberta argues that notice of a constitutional question should have been given in the Federal Court pursuant to subsection 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, and that the matter should be returned to the Federal Court for a trial of the constitutional issues. Alberta has also submitted, in the alternative, a number of arguments in support of the position of the Minister that the appeal should be allowed.

[72]            After oral submissions on this point by counsel for Alberta, and without calling upon counsel for Mikisew Cree First Nation to respond, the panel indicated that it was not persuaded that a section 57 notice was required. The reasons for that decision are stated below.

[73]            Section 57 of the Federal Courts Act reads as follows:

[74]            The issue raised by Mikisew Cree First Nation in its application for judicial review required the Federal Court to determine whether certain treaty rights were infringed when the Minister decided to permit the construction of the winter road through Wood Buffalo National Park. This was a constitutional question because of subsection 35(1) of the Constitution Act, 1982 (Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11), which reads as follows:

[75]            Notice of a constitutional question under section 57 of the Federal Courts Act is not required in every case where a constitutional issue is raised, or in every case where a party asserts a constitutional right. It is the nature of the remedy sought in a particular case that will determine whether a section 57 notice is required.

[76]            The objective of section 57 is to preclude a Court from making a judgment that a statute or regulation is invalid, inapplicable or inoperable on constitutional grounds, unless the constitutional question underlying the judgment is the subject of prior notice to Canada and the provinces. A notice of constitutional question under section 57 is simply a means of ensuring that appropriate notice is given. It is axiomatic that there is no need for a section 57 notice in a case where the judicial remedy is something other than a judgment that a statute or regulation is invalid, inapplicable or inoperable on constitutional grounds. Of course, other remedies are possible. This is explained in the judgment of Justice Lamer, as he then was, in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038. Although he was in dissent, all of the judges agreed with his analysis on this point.

[77]            Slaight Communications establishes that, generally speaking, a discretionary decision may be subject to two forms of constitutional challenge. One is a challenge to the legislation itself. Such a challenge is based on the premise that the legislation, properly interpreted, expressly or by necessary implication confers on the decision maker the authority to make a decision that infringes a constitutional right. In a challenge of that kind, the argument must be that the legislation is unconstitutional, and the remedy will be aimed at the legislation.

[78]            The other form of constitutional challenge to a discretionary decision is based on an argument that the legislation does not authorize the decision maker to make a decision that infringes a constitutional right. In a challenge of that kind, the remedy is not aimed at the legislation at all, but only at the decision.

[79]            In my view, the constitutional challenge in this case is limited to the decision. It is common ground that the Minister has the discretionary authority to decide whether to approve the construction of the winter road through Wood Buffalo National Park, and that her decision is subject to challenge on constitutional grounds. However, Mikisew Cree First Nation does not argue that the governing legislation expressly or by necessary implication authorizes the Minister to make a decision that infringes a constitutional right. Nor does Mikisew Cree First Nation argue that the legislation must be read down to conform to a constitutional principle, or to avoid the inevitable infringement of a constitutional right. The argument is that the manner in which the Minister exercised her discretion infringed the treaty rights of Mikisew Cree First Nation. That argument does not call for a decision as to the constitutional validity, applicability or operability of legislation. It follows that no notice of constitutional question was required under section 57 of the Federal Courts Act.

[80]            Alberta refers to a number of cases in which notice under section 57 of the Federal Courts Act, or the equivalent notice required by another statute, was given. Those cases are not helpful because they disclose no debate on the scope of section 57. No doubt there are many cases where a party gives notice of a constitutional question out of an abundance of caution, or perhaps even as the result of a mistaken view of the legislation requiring the notice.

[81]            Alberta also cites a number of cases in which an issue arose because no notice was given under section 57 or its equivalent: McIntosh v. Canada (Secretary of State) (1994) 168 N.R. 75 (F.C.A.), Broddy v. Alberta (Director of Vital Statistics) [1983] 1 W.W.R. 481 (Alta C.A.), Morine v. L & J Parker Equipment Inc. (2001), 30 Admin L.R. (3d) 113 (N.S.C.A.), Gitxsan Treaty Society v. Hospital Employees' Union (C.A.), [2000] 1 F.C. 135. I do not propose to deal with these cases in detail. It is enough to say that they all involve challenges to legislation on constitutional grounds. None of them supports the conclusion that notice is required under section 57 of the Federal Courts Act in this case.

D. Do Treaty 8 hunting rights subsist in Wood Buffalo National Park?

[82]            The Minister argues that the land now comprising the Wood Buffalo National Park was "taken up" by the Crown when the Park was established, thus placing it outside the geographical limitations of Treaty 8. In the alternative, the Minister argues that the land is "occupied Crown land" to which there is no general right of access to hunt and trap. As a second alternative, the Minister argues that any treaty right to hunt and trap in the area of the Park has been extinguished by the statute and regulations governing the Park.

(1) Has the land comprising Wood Buffalo National Park been "taken up" by the Crown?

[83]            The Judge rejected the argument that the area of Wood Buffalo National Park was "taken up" when the Park was established, because the use of the land as a Park is not a use that is visible and incompatible with continued existence of the hunting rights guaranteed by Treaty 8. I agree with her conclusion, for the reasons she gave.

[84]            The leading authority on the question of "taking up" is the judgment of Justice Cory in in R. v. Badger, [1996] 1 S.C.R. 771. In that case, three Cree Indians who were entitled to the benefits of Treaty 8 shot moose for food on private land in Alberta. They were appealing their conviction of offences under the Wildlife Act, S.A. 1984, c. W-9.1. In one case, the charge was shooting a moose out of season. In the other two cases, the charge was shooting a moose without a hunting licence.

[85]            It is important to note that Badger involved facts that are not present in this case. The individuals in Badger were asserting a treaty right to hunt on private land, not in Wood Buffalo National Park or other federal Crown land. Hunting on private land in Alberta was regulated by provincial law, which brought into play section 12 of the Natural Resources Transfer Agreement, 1930 (Constitution Act, 1930, Schedule 2), which reads as follows:

[86]            The Natural Resources Transfer Agreement is part of the Constitution of Canada by virtue of section 1 of the Constitution Act, 1930. However, it plays no part in this case because Alberta laws regarding the hunting of game do not apply in Wood Buffalo National Park.

[87]            Justice Cory's statement of the issues in Badger is critical to an understanding of his conclusions. It reads as follows (paragraph 37):

[88]            Justice Cory described the hunting rights guaranteed by Treaty 8 as follows (at paragraphs 39 and 40):

(It is noted that the record in this case includes a copy of the Commissioners' Report quoted by Justice Cory in Badger.)

[89]            Justice Cory concluded that the Natural Resources Transfer Agreement did not extinguish the right in Treaty 8 to hunt for food. Thus, for Aboriginal people entitled to the benefit of Treaty 8, the only geographic limitation on the right to hunt for food within the area of Treaty 8 is land "taken up" within the meaning of those words in Treaty 8, even if the land is privately owned. Justice Cory did not consider whether, after the enactment of subsection 35(1) of the Constitution Act, 1982, the "taking up" land for farms could be a prima facie infringement of Treaty 8. That issue did not arise in Badger. It does arise in this case, however, and is discussed later in these reasons.

[90]            The test to be applied in determining whether land is "taken up" is explained in paragraph 54 of Justice Cory's reasons (my emphasis):

[91]            Justice Cory expanded on this at paragraphs 58 and 59 (my emphasis):

[92]            Two of the three convictions were upheld on the basis that the land where they were hunting was being visibly used for a purpose that was incompatible with hunting. In one case, the hunting occurred on the land covered with second growth willow and scrub, only one quarter of a mile from a farm house. In the other case, the hunting occurred on what was clearly a farmer's field.

[93]            The third person was hunting in an area of uncleared muskeg, with no fences, signs or buildings anywhere near the site of the kill. The land where he was hunting did not meet the "visible, incompatible use test". In his case, it was necessary to go further and consider the constitutional validity of the provisions of the Alberta Wildlife Act under which he had been charged. For that purpose, Justice Cory applied the analysis in Sparrow. Although Sparrow dealt with the infringement of non-treaty Aboriginal rights, Justice Cory found it to be equally applicable to the infringement of Aboriginal treaty rights. He held that the impugned provision of the Wildlife Act conflicted with the hunting rights in Treaty 8, as modified by the Natural Resources Transfer Agreement, so that there was a prima facie infringement. It was thus necessary to consider whether the infringement was justified. The matter was returned for retrial on that question.

[94]            Returning to the present case, the question is this: Do the laws governing Wood Buffalo National Park result in a use of the land that is visibly incompatible with the exercise of the hunting rights guaranteed by Treaty 8? The Judge said no, and I agree.

[95]            The Minister argues against that conclusion on the basis of the combined operation of sections 2 and 18 of The Dominion Forest Reserves and Parks Act, 1911, c. 10, section 2 of the Regulations Respecting Game in the Dominion Parks, 1919 (P.C. 2415), Order in Council, 1922 (P.C. 2498), which created Wood Buffalo National Park, and Order in Council (April 30, 1926), which expanded its boundaries.

[96]            The relevant parts of sections 2 and 18 of The Dominion Forest Reserves and Parks Act, which came into force in 1911, read as follows (my emphasis):

[97]            In 1919, the Governor in Council enacted the Regulations Respecting Game in the Dominion Parks. Regulation 2 reads as follows:

Except as hereinafter provided, no person shall at any time chase, harass or pursue, hunt, shoot at, trap, take, wound, kill, capture or destroy any game within a Dominion Park.

[98]            On December 18, 1922, Wood Buffalo National Park was created by Order in Council PC No. 2498 as a park under The Dominion Forest Reserves and Parks Act. The record does not indicate that the area of the Park had first been designated a forest reserve, as the Act appears to contemplate, but I assume nothing turns on that. The Order in Council indicates that the purpose of creating the Park was to safeguard the "Wood-bison, or so-called Wood-buffalo". It is not disputed that the Park was validly created.

[99]            It is the position of the Minister that the general prohibition on hunting, as set out in Regulation 2, applied immediately to Wood Buffalo National Park, and as such a prohibition is necessarily inconsistent with the continued existence of a treaty right to hunt, the treaty right ceased to exist within the Park when it was created.

[100]        A somewhat similar proposition was addressed in R. v. Sundown, [1999] 1 S.C.R. 393. The issue in that case was whether Mr. Sundown, an Indian who was subject to Treaty No. 6, was in breach of a provincial park regulation when he constructed a log cabin within a Saskatchewan provincial park for use as shelter when he was hunting and fishing within the park. The regulation prohibited the construction or occupation of a temporary or permanent dwelling on park land without permission. Mr. Sundown was acquitted because the construction of the cabin was reasonably incidental to his Aboriginal hunting right as it had traditionally been exercised, and was not incompatible with the use of the land as a provincial park. The reasoning of Justice Cory on the question of incompatible use is instructive for this case (paragraph 41):

[101]        Despite Regulation 2, there is no evidence that a total prohibition on hunting was ever recognized or enforced in Wood Buffalo National Park against Aboriginal people who were entitled to the benefit of Treaty 8. There is, however, evidence to the contrary. Indeed, the Minister concedes that those with Aboriginal treaty rights who had habitually hunted and trapped in the area of the Park were allowed to continue to do so, subject only to regulation.

[102]        This is confirmed by a notice dated August 1, 1923, published over the name "O.S. Finnie, Director" by the government authority then charged with administering Wood Buffalo National Park. The notice reads as follows (Appeal Book, Volume 5, page 2638):

[103]        Mr. Finnie later wrote, in a letter dated December 24, 1925, that he had never conceded that Treaty Indians had the right under Treaty 8 to hunt within Wood Buffalo National Park (Appeal Book, Volume 6, page 2779). Other notes and correspondence from Mr. Finnie are similar (Appeal Book, Volume 6, pages 2766-7) . Those writings, taken at face value, may represent Mr. Finnie's interpretation of Treaty 8, but they are not capable of establishing that the legislation and regulations governing Wood Buffalo National Park were incompatible with the continued existence of Aboriginal hunting rights in the Park.

[104]        More recent government publications relating to Wood Buffalo National Park confirm that there has been no interruption in Aboriginal hunting in the area of the Park. The 1984 Wood Buffalo National Park Management Plan (Appeal Book, Volume 2, pp. 890 to 1018) states as follows at page 904 (my emphasis):

[105]        The following statement is taken from the Wood Buffalo National Park website as it appears in the record (Appeal Book, Volume 5, page 2639) (my emphasis):

[106]        The fact is that Aboriginal people and others are permitted to hunt within Wood Buffalo National Park, subject to regulations. It is argued for the Minister that permission for hunting within Wood Buffalo National Park is not explained by the continued existence of hunting rights in Treaty 8, but is merely an instance in which the Crown is exercising its right to regulate activities within the Park. There is some evidence that contradicts this theory. Indeed, a note from Mr. Finnie suggests (but does not prove) a different reason why no steps were taken to prohibit hunting by Treaty Indians within the Park. The note is dated December 21, 1925 and reads in part as follows (Appeal Book, Volume 6, page 2777):

[107]        The meaning of this note is unclear. The record contains no material from the "Indian Department" to indicate what position they might have taken with respect to hunting rights within Wood Buffalo National Park. Bishop Breynat was a missionary who worked in northern Canada for many years. There is some evidence that he may have witnessed the signing of Treaty 8 (Appeal Book, Volume 6, page 2784).

[108]        In any event, I am not persuaded that it is necessary to determine what motivated the Crown, in 1922 or in later years, to permit the continuation of hunting within Wood Buffalo National Park. The important question is whether, having done so, the Minister can now contend that the use of the area of Wood Buffalo National Park as a park is visibly incompatible with the continued existence of hunting rights under Treaty 8. The record establishes no incompatibility at all, visible or otherwise. It follows that the Judge was correct to conclude that the area of Wood Buffalo National Park has not been removed from the area of Treaty 8 by having been "taken up".

(2) Is the land comprising Wood Buffalo National Park "occupied Crown land"?

[109]        The Minister's second argument is that the area of the Park is occupied Crown land or is land to which the Indians of Treaty 8 do not have a right of access for the purpose of hunting or trapping. This argument is based on section 12 of the Natural Resources Transfer Agreement, reproduced here for ease of reference (my emphasis):

[110]        This argument was not raised in the Federal Court, and as a result there was no evidence led to address the issues raised by this argument and it was not addressed by the Judge. Counsel for Mikisew Cree First Nation argued, and counsel for the Minister conceded in oral argument, that the area of Wood Buffalo National Park is not subject to provincial laws regulating hunting and trapping.

[111]        Given the state of the record, I propose to reject this argument without extensive discussion. It is sufficient to say that the Minister has relied on only two cases. One of the cases is R. v. Catarat, 2001 SKCA 50, [2001] 6 W.W.R. 681, 207 Sask.R. 57, [2001] 2 C.N.L.R. 158 (Sask. C.A.), in which provincial Crown land in northern Saskatchewan that had been leased to the federal government for use as a military weapons range was "occupied Crown land" for the purposes of the Natural Resources Transfer Agreement because it was in active use for a purpose incompatible with hunting. The other case is R. v. Smith, [1935] 2 W.W.R. 433 (Sask C.A.), which considered the status of an area designated in a provincial statute as a game preserve in which all hunting was prohibited. The basis of the decision was that laws governing the game preserve were clearly inconsistent with the continuation of Aboriginal hunting rights (see the comments of Justice Cory on this case at paragraph 59 of Badger, quoted above). According to the record in this case, the hunting regulations for Wood Buffalo National Park have proved to be compatible with the continuation of Aboriginal hunting rights under Treaty 8 within the Park. On that basis, both Catarat and Smith are distinguishable on their facts.

(3) Have hunting rights been abolished by statute within Wood Buffalo National Park?

[112]        The Crown's other alternative argument is that hunting rights under Treaty 8 were abolished by statute. The Judge rejected that argument, and I agree with her. Before subsection 35(1) of the Constitution Act, 1982, came into force, an Aboriginal right could be extinguished by competent legislation as easily as a common law right. The test for extinguishment was explained as follows in R. v. Sparrow, [1990] 1 S.C.R. 1075, at pages 1098-1099:

[113]        Although Sparrow dealt with the extinguishment of Aboriginal rights that are not protected by a treaty, the same principles apply to the pre-1982 extinguishment of Aboriginal treaty rights. This was recognized by Justice Binnie when he said this at paragraphs 47 and 48 of R. v. Marshall, [1999] 3 S.C.R. 456:

[114]        I have already rejected two of the Minister's arguments on the basis that there is nothing about the establishment of Wood Buffalo National Park that is incompatible with the exercise of the hunting rights guaranteed by Treaty 8. Given that, it is impossible to accept, in the words of Justice Mahoney in Baker Lake, that the "necessary effect" of the legislation creating Wood Buffalo National Park or governing its administration was to extinguish the hunting rights in Treaty 8, or that the legislation was not consistent with the continuation of those rights.

(4) Conclusion

[115]        For these reasons, the Judge was correct to conclude that the hunting rights guaranteed in Treaty 8 subsist in the land comprising Wood Buffalo National Park, subject to the applicable regulations.

E. Prima facie infringement

[116]        The Judge held that the approval of the winter road constituted a prima facie infringement of the hunting rights guaranteed by Treaty 8 which, according to Sparrow, cannot be permitted to stand unless justified. Two legal issues have been raised in this context. The first issue, which has been raised only by Alberta, is whether the establishment of the winter road is a "taking up" of land that is contemplated by the terms of Treaty 8. The second issue, which is relevant only if this Court does not find that the establishment of the road is contemplated by the terms of Treaty 8, is whether the Judge was correct to find a prima facie infringement.

(1) The establishment of the road as a "taking up"

[117]        Alberta argues that, for the purposes of Treaty 8, the establishment of the winter road is a "taking up" by the Crown of the 200 metre wide corridor within which the road will pass, which automatically excludes that area from the area in which Treaty 8 hunting rights can be exercised (see the discussion relating to geographical limits of Treaty 8, under the heading "(1) Has the land comprising Wood Buffalo National Park been "taken up" by the Crown?").

[118]        The relevant portion of Treaty 8 is reproduced for ease of reference (my emphasis):

[119]        Alberta's argument is that a "taking up" of land is contemplated by Treaty 8 and therefore cannot be held to be even a prima facie infringement within the Sparrow analysis. If that is the case, no justification is required, and the Minister had no duty to consult with Mikisew Cree First Nation before approving the construction of the winter road. In my view, this argument is not sound, but even if it has merit, it should not determine the outcome of this appeal.

[120]        As I understand Alberta's argument, it is based on the premise that Treaty 8 should be interpreted according to the principles applicable to contracts. One of those principles is that if the terms of a contract give one party a unilateral right to take a certain action, the contract is not breached if that action is taken. The quoted part of Treaty 8, read literally, gives the Crown the unilateral right to remove land permanently from the area within which the Treaty 8 hunting and trapping rights may be exercised in order to use the land for "settlement, mining, lumbering, trading or other purposes." Alberta argues, based on that literal approach, that because the right to "take up" land is granted by Treaty 8 itself, it is unfettered by an obligation on the part of the Crown to consult, to negotiate, or even to give advance notice to Mikisew Cree First Nation.

[121]        A similar argument was rejected by Justice Finch in Halfway River First Nation v. British Columbia (Ministry of Forests) (1999), 178 D.L.R. (4th) 666, [1999] 9 W.W.R. 645, (1999) 64 B.C.L.R. (3d) 206, [1999] 4 C.N.L.R. 1 (B.C.C.A.). The issue in that case was the constitutional validity of a timber cutting permit granted by a district manager pursuant to a provincial statute. The Halfway River First Nation challenged the validity of the permit on a number of grounds, one of which was that the area of the permit was an area in which they had hunting rights pursuant to Treaty 8. Their challenge succeeded in the British Columbia Supreme Court. An appeal to the British Columbia Court of Appeal was dismissed, with one judge dissenting. Justice Finch (as he then was) and Justice Huddart agreed that the appeal should be dismissed, but for different reasons. Because they characterize the problem differently, only Justice Finch considered it necessary to deal with the "taking up" argument.

[122]        Justice Finch characterized the issue as a problem of the interpretation of Treaty 8. He extracted from Saanichton v. Tsawout (1989), 36 B.C.L.R. (2d) 79 (C.A.), Badger (cited above), and R. v. Sioui, [1990] 1 S.C.R. 1025, the principles applicable to the interpretation of Aboriginal treaties. I paraphrase as follows his summary of those principles:

(1)        A treaty should be given a fair, large and liberal construction in favour of the Aboriginal signatories.

(2)        A treaty must be construed not according to the technical meaning of its words, but in the sense that they would naturally be understood by the Aboriginal signatories.

(3)        As the honour of the Crown is always involved, no appearance of "sharp dealing" should be sanctioned.

(4)        Any ambiguities or doubtful expressions in the wording of a treaty must be resolved in favour of the Aboriginal signatories. Any limitation on the rights of the Aboriginal signatories under a treaty must be narrowly construed.

(5)        Evidence by conduct or otherwise as to how the parties understood the treaty is of assistance in giving it content. Courts must take into account the historical context and perception each party might have as to the nature of the undertaking contained in the document under consideration.

[123]        In his discussion of the "taking up" issue as it was presented in that case, Justice Finch noted that as section 35 of the Constitution Act, 1982 elevated treaty rights to constitutional rights, it could be argued that the right of the Crown to "take up" land covered by Treaty 8 is a Crown right that itself might have achieved constitutional status. Assuming, without deciding, that the Crown's right to "take up" has constitutional status, that right cannot be stronger than any other constitutional power of the Crown, including the constitutional power that the Crown sought to exercise in Sparrow. As Justice Finch said, at paragraph 129 of Halfway River:

[124]        Justice Finch concluded that the granting of a licence to cut timber in an area in which hunting rights are guaranteed by Treaty 8 is a prima facie infringement of the hunting right, and that the Crown had an obligation to consult. In other words, he applied the Sparrow analysis despite the fact that Treaty 8 appears to permit the Crown to act unilaterally to reduce the geographic area of the hunting rights by "taking up" land for one of the specified purposes.

[125]        In my view, the analysis of Justice Finch is correct. It follows that even if the establishment of the winter road is a "taking up" of the 200 metre wide road corridor, the "taking up" could be a prima facie infringement of the Treaty 8 hunting rights that must be justified according to the test in Sparrow.

[126]        Even if I am wrong to accept the analysis of Justice Finch on this point, and the Sparrow analysis has no application upon a "taking up" of land within the areas covered by Treaty 8, I would nevertheless decline to determine this appeal on the ground that the approval of the winter road was a "taking up". It appears from paragraph 84 of the reasons for judgment that in the Court below, the "taking up" argument was mentioned by counsel for the Minister "as an aside". At the hearing of this appeal, counsel for the Minister indicated that this argument had been abandoned, but the Minister's other counsel later clarified that the Minister was simply not relying on it.

[127]        The Minister has always been aware of the "taking up" argument now propounded by Alberta. I do not say that Alberta was not entitled to make that argument in this Court. The Minister could have done so as well. However, for reasons that the Minister has not disclosed and need not disclose, she has chosen not to defend her decision on that ground. In my view, it would be wrong in these circumstances for this Court to affirm the Minister's decision on a ground upon which the Minister herself chooses not to rely.

(2) Was the winter road approval a prima facie infringement?

[128]        I will now consider the argument of the Minister that the Judge erred in finding a prima facie infringement. The factual basis for that finding is stated at paragraph 98 of the reasons:

[129]        The Minister argues that the finding of prima facie infringement of a treaty right is incorrect in law because it was made without taking into account the factors required by Sparrow. The Minister also argues that some of the Judge's factual conclusions had no evidentiary foundation.

[130]        I will deal first with the Sparrow test for prima facie infringement. In Sparrow, Chief Justice Dickson and Justice La Forest said (at page 1112) that the determination of whether a limitation to an Aboriginal right constitutes a prima facie infringement requires consideration of three questions: (1) whether the limitation is unreasonable, (2) whether the limitation imposes unreasonable hardship, and (3) whether the limitation precludes the exercise of the right by the preferred means.

[131]        However, it has subsequently been recognized that those three questions are more relevant to the determination of justification than to the determination of prima facie infringement (see, for example, the dissenting reasons of Justice McLachlin, as she then was, in R. v. Van der Peet, [1996] 2 S.C.R. 507, at paragraph 297). The current view is that the Sparrow questions are factors that are relevant to the determination of prima facie infringement, but they are not determinative. This is explained by Chief Justice Lamer, as he then was, in R. v. Gladstone, [1996] 2 S.C.R. 723 (at paragraph 43) (my emphasis):

[132]        It seems to me that, after Gladstone, Sparrow cannot be taken as authority for the proposition that a finding of prima facie infringement is wrong in law unless it is preceded by an express consideration of each of the three Sparrow questions. The point of the enquiry into the question of prima facie infringement, in the context of this case, is to determine whether the decision to construct the winter road would result in a meaningful limitation to the rights of Mikisew Cree First Nation to hunt and trap within the boundaries of Wood Buffalo National Park. That is how the Judge approached the issue, and in my view it is the correct approach.

[133]        The findings of fact quoted above indicate that the Judge was aware of what were obviously relevant facts: the size of the Park, the size of the road and the corridor in which firearms would be prohibited, the probable impact of the road on wildlife, the location of the road in relation to the reserve lands of Mikisew Cree First Nation, and their traplines and hunting areas, and the role of hunting and trapping in the life of Mikisew Cree First Nation. The record discloses no palpable and overriding error in any of her findings of fact. She concluded from those facts that the construction of the road would have an adverse effect on hunting and trapping that is sufficient to meet the test of prima facie infringement. I see no valid basis for interfering with that conclusion, despite the fact that the Judge did not consider it useful to address the three Sparrow questions expressly.

[134]        In any event, I am not persuaded that the Judge's conclusion on prima facie infringement would have been any different if she had specifically addressed the three Sparrow questions. The questions, phrased in the factual context of this case, would be: (1) whether the construction of the winter road unreasonably limits the exercise of hunting and trapping rights, (2) whether that limitation imposes unreasonable hardship, and (3) whether that limitation precludes the exercise of the right by the preferred means. I take from Gladstone that a negative answer to any of these questions would not preclude a finding of prima facie infringement. It would appear to follow that a positive answer to only one of the questions could be a sufficient basis for such a finding.

[135]        I will consider only the third question. I refer to the Judge's findings of fact as to the proximity of the proposed winter road to the preferred hunting areas and traplines of Mikisew Cree First Nation, the probable disruption to the wildlife, and the restrictions on the use of firearms within the 200 metre road corridor. In my view, the inescapable conclusion is that, for any Mikisew Cree First Nation members who typically hunt or trap near the area of the road corridor, the construction of the winter road will restrict their preferred means of hunting and trapping. It is not particularly relevant to the third question that Wood Buffalo National Park is large and the road corridor is small by comparison, because the preferred means of hunting and trapping is integrally linked to very place where the proposed road will be constructed. It follows that the Judge made no error in concluding that the construction of the winter road would limit hunting and trapping to an extent that would constitute a prima facie infringement of the rights of Mikisew Cree First Nation in Treaty 8.

F. Justification

[136]        The next step is to consider whether the infringement of Treaty 8 is justifiable. This is explained as follows in Sparrow, at pages 1109 and 1110:

(1) First branch: the objective of the decision

[137]        There are two branches to the justification analysis. The first branch relates to the objective of the legislation or government action that causes or constitutes the prima facie infringement of the treaty right in question. The first branch is explained in Sparrow as follows (at page 1113) (my emphasis):

[138]        The closing words of the above quotation introduce the notion that it may be possible to balance Aboriginal rights with the rights or needs of other people. However, Sparrow takes a cautious approach to that possibility, expressly rejecting the argument that the "public interest" could justify a breach of an Aboriginal right. The following comments appear at page 1113:

[139]        To similar effect are these comments of then Chief Justice Lamer in Gladstone at paragraphs 71 to 75 (my emphasis):

[140]        These comments were essentially repeated by then Chief Justice Lamer the following year in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at paragraph 161.

[141]        R. v. Adams, [1996] 3 S.C.R. 101, presents an example of a situation where the broader public interest did not justify a prima facie infringement of an Aboriginal right. The result of that case is summarized by then Chief Justice Lamer at paragraph 58:

[142]        The Judge analyzed all of the jurisprudence referred to above, noting finally that Justice Binnie, in R. v. Marshall, [1999] 3 S.C.R. 456, makes no mention of accommodating economic and non-native interests with aboriginal rights. She reached the following conclusion (at paragraph 122 of her reasons):

[143]        Justice Binnie's decision in Marshall dealt with the problems of identifying an Aboriginal right through the interpretation of a treaty. He did not discuss justification. However, I agree with the Judge's conclusion that the objective of the winter road, which is to enhance the economic and social interests of all of the people who live in Fort Smith and other areas in and near Wood Buffalo National Park, is not sufficiently compelling and substantial to override the constitutionally protected right of Mikisew Cree First Nation to hunt in the Park.

[144]        I accept that the proposed winter road is likely to be an advantage to its proponents, and others who live in the area. There may even be some advantages for Mikisew Cree First Nation. However, there is no winter road now, and there has been no such road for nearly 40 years. Mikisew Cree First Nation, whose members live, hunt and trap in the immediate vicinity of the proposed road, clearly believe that, for them, any possible advantages do not outweigh the disadvantages. In the context of a proposed justification for the prima facie infringement of an Aboriginal right, an objective cannot be pressing and substantial unless it relates in some way to the long term enhancement or preservation of the Aboriginal right that is being infringed (such as the conservation of natural resources), or the objective is overwhelmingly in the interests of the population as a whole. Like the Judge, I cannot accept that the approval of the winter road meets either test.

[145]        Having reached the conclusion that the Judge was correct in her conclusion on the first branch of the justification test, it is not necessary to go further and consider whether the Judge was also correct to find that the Minister also failed the second branch of the justification test, which is whether the infringement is consistent with the role of the Crown as having a positive obligation to honour all obligations undertaken in Aboriginal treaties. However, I will consider that aspect of her judgment.

(2) Second branch: the Crown's obligation as fiduciary

[146]        The second branch of the justification test has its origins in the decision of the Supreme Court of Canada in [1984] 2 S.C.R. 335">Guerin v. The Queen, [1984] 2 S.C.R. 335 and R. v. Taylor and Williams (1981), 34 O.R. (2d) 360. The connection is explained as follows by then Chief Justice Lamer in Sparrow, at page 1108:

[147]        The obligation of the Crown in this regard requires, at least, meaningful consultation before a decision is made that will infringe an Aboriginal right. Meaningful consultation is described as follows in Delgamuukw (cited above) at paragraph 168:

[148]        The Judge, correctly, did not limit her analysis of the second branch of the justification test to the question of meaningful consultation. She also touched on the issues of priority, minimal infringement and compensation, keeping her focus throughout on the central question of whether or not the actions of the Minister were consistent with its fiduciary obligations (her approach is clearly described at paragraphs 124 to 128 of her reasons). However, the basic complaint of Mikisew Cree First Nation is centred on the failure to consult. The question of the adequacy of consultation warranted the detailed consideration it was given by the Judge.

[149]        The Judge's conclusion on the question of consultation is stated as follows at paragraph 157:

[150]        I agree with this conclusion. The record discloses that Mikisew Cree First Nation had opportunities to comment on the proposed winter road, in the context of the environmental assessment, and did not do so. The record also discloses that when Mikisew Cree First Nation did attempt to engage the Minister in discussions, there was no response. I agree with counsel for the Minister that in some circumstances, meaningful consultation in relation to an infringement of a treaty right may occur in conjunction with consultations on other issues, such as environmental impact, and that the First Nation has an obligation to participate in any consultations actively and in good faith.

[151]        However, even if multi-purpose consultations are possible in theory, there must be evidence that First Nation treaty rights are on the table, are understood, and are addressed. It is difficult to find that meaningful consultations have occurred if the Minister has failed to hear or respond to the attempts of the First Nation to put its treaty rights on the table.

[152]        In this case, there is no evidence of any good faith effort on the part of the Minister to understand or address the concerns of Mikisew Cree First Nation about the possible effect of the road on the exercise of their Treaty 8 hunting and trapping rights. It is significant, in my view, that Mikisew Cree First Nation was not even told about the realignment of the road corridor to avoid the Peace Point Reserve until after it had been determined that the realignment was possible and reasonable, in terms of environmental impact, and after the road was approved. That invites the inference that the responsible Crown officials believed that as long as the winter road did not cross the Peace Point Reserve, any further objections of the Mikisew Cree First Nation could be disregarded. Far from meaningful consultation, that indicates a complete disregard for the concerns of Mikisew Cree First Nation about the breach of their Treaty 8 rights.

[153]        As indicated above, the Judge touched on the other Sparrow factors, but in each case reached a conclusion that favoured the position of Mikisew Cree First Nation. Of particular interest is her discussion of the Minister's argument that reasonable steps were taken to mitigate the effect of the winter road on hunting and trapping near the road. Those steps might well be reasonable, and at the end of the day may prove to be sufficient. However, the Judge found, and it is not disputed, that Mikisew Cree First Nation was not consulted on these measures and, more importantly, that these measures related to a route for the proposed road that was kept secret from Mikisew Cree First Nation until after the critical decision had been made. It was not for the Judge, and it is not for this Court, to speculate about the adequacy of the mitigation steps devised as the result of a process that was fundamentally flawed.

G. Conclusion

[154]        I would dismiss the appeal with costs.

                                                                                             "K. Sharlow"                       

                                                                                                              J.A.                              

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   A-35-02

STYLE OF CAUSE: Sheila Copps, Minister of Canadian Heritage v.

Mikisew Creek First Nation et al.

PLACE OF HEARING:                                   Edmonton, Alberta

DATE OF HEARING:                                     September 29, 2003

REASONS FOR JUDGMENT

BY:                               ROTHSTEIN J.A.

CONCURRED IN BY:                                    SEXTON J.A.

DISSENTING REASONS

BY:                               SHARLOW J.A.

DATED:                      February 13, 2004         

APPEARANCES:

Mr. Paul A. Shenher    For the Appellant

Ms. Teresa Crotty-Wong                                    For the Appellant

Mr. Jeffrey R.W. Rath For the Respondent, Mikisew Cree First Nation

Ms. Allisun Rana          For the Respondent, Mikisew Cree First Nation

Ms. Elizabeth A. Johnson                                     For the Respondent, The Thebacha Road Society

Mr. Robert J. Normey                                        For the Intervener

Ms. Angela Brown       For the Intervener

SOLICITORS OF RECORD:

Morris Rosenberg                                                 For the Appellant

Deputy Attorney General of Canada

Rath & Company                                                 For the Respondent, Mikisew

Priddis, Alberta                                                    Cree First Nation

Ackroyd, Piasta, Roth & Day                                           For the Respondent, The

Edmonton, Alberta                                               Thebacha Road Society

Alberta Justice                                                     For the Intervener

Constitutional and Aboriginal Law Branch