Why an Alberta court decision to quash an oilsands project affects Treaty Rights cases in B.C.

A recent ruling by three Appeal Court justices has transformed the nature of Treaty 8 First Nations’ legal battles against the Site C dam and oil and gas development, finding the Crown must consider the cumulative impacts of industrial projects.


Jack Woodward, who along with Joseph Arvay represented the Fort McKay First Nation before Alberta’s highest court, also represented the Treaty 8 Tribal Association before the Supreme Court of Canada in 2005’s landmark Mikisew Cree case.


The case involved a winter road the federal government first intended to run right through a Mikisew Cree First Nation reserve. The federal government later rerouted the proposed road to skirt around the edge of the reserve. The nation wasn’t consulted in either case.


Central to that case was the tension inherent in the two main provisions of the treaty: the right of the First Nations to hunt, fish and trap, and the right of the Crown to “take up” land for settlements and other purposes.


What the court decided in that case, Woodward said, was that there must be “meaningful” opportunities to hunt, fish and trap.


“It took until 2005 for Canadian law to work out what those two conflicting objectives of the treaty are,” Woodward told The Narwhal. “Obviously there’s a point where those two things clash. If you take up every square inch of the land, then there’s no more right to hunt, fish and trap.”
“It becomes an ecological question,” Woodward continued. Read More…