Mikisew Cree First Nation
The Mikisew Cree First Nation is a leader when it comes to the protection of Treaty 8 rights, recognition of indigenous knowledge, innovative approaches to Crown consultation, and negotiations. JFK works with Mikisew to develop legal strategies to deal with these challenges.
Who We Are
Mikisew is a First Nation based in Fort Chipewyan, Alberta. Mikisew holds constitutionally protected rights under Section 35 of the Constitution Act, 1982, including rights under Treaty 8. In 1986, Mikisew negotiated a landmark Treaty Land Entitlement Agreement with the federal government.
Since Treaty 8 was signed, many industrial developments have affected Mikisew lands and waters, with the pace of development increasing significantly over the past decades. The W.A.C. Bennett Dam and road-building in Wood Buffalo National Park are two prime examples. But the most severe impact has been from massive oil sands development in the Lower Athabaska Region, which has severely altered parts of Mikisew’s traditional territory.
In 2005, Mikisew made history when it won a landmark case at the Supreme Court of Canada, which established that the Crown has to consult First Nations with historical treaty rights. Mikisew continues to employ a variety of strategies to seek protection of its rights and culture and to create opportunities for Mikisew and its citizens.
For more information about Mikisew, click here.
Working with JFK Law
Mikisew faces complicated and wide-ranging issues. Over the years, Mikisew and JFK Law have worked together to tackle these challenges and pursue Mikisew’s goals by using a number of legal tools.
In 2012-2013, the federal government drastically overhauled a number of laws relating to environmental protection and assessments through two omnibus budget bills. Given the importance of federal environmental laws in the oil sands region, Mikisew, with JFK as legal counsel, took a stand against this unilateral action and launched a lawsuit seeking a declaration that Canada had failed to consult before changing those laws. In his decision, Federal Court Justice Hughes confirmed that the duty to consult is triggered when the government introduces legislation that has a potential to adversely impact Mikisew’s treaty rights. In this case, Justice Hughes found that “no notice was given and no opportunity to make submissions was provided. In fact, each Bill, which was structured as a “confidence” Bill, went through Parliament with remarkable speed.” Read more about this legal challenge here, or here. You can also read the decision here.
JFK represents Mikisew, along with eight other Treaty 8 First Nations, in a judicial review application against Alberta for enacting land-use regulations about how and when people could access or use vacant public lands that ignored Mikisew’s constitutionally-protected rights. This case is still before the courts. Read more about this legal challenge here.
The Peace-Athabasca Delta is a critical area for the exercise of Mikisew’s rights and culture. When an environmental assessment for BC Hydro’s Site C dam failed to consider impacts to the Delta, JFK worked with Mikisew to file an application for judicial review of the joint review panel report. Since then, JFK also worked with Mikisew to file a judicial review application against the federal approval of Site C. Read more about this legal challenge here.
JFK provides legal support to Mikisew in regulatory processes before the Alberta Energy Regulator and other provincial regulatory authorities for projects of all types, sizes and locations. For example, JFK helped Mikisew to trigger the first public hearing for a winter exploratory program when a company proposed winter drilling in an area critical for Mikisew’s harvest of wood bison. Read more about that hearing here. JFK has also represented Mikisew in public hearings for two oil sands mines. Read one of Mikisew’s written submissions here.
Mikisew and JFK continue to work together to push to put Mikisew’s traditional knowledge and aboriginal perspective front and centre in every regulatory process that has the potential to adversely impact Mikisew’s rights, culture, and community. See an example here.
After Alberta developed a land use plan for the Lower Athabasca Region that failed to include mechanisms to protect the exercise of Mikisew’s Treaty rights and culture, Mikisew, with JFK’s support, triggered a statutory review of the Lower Athabasca Regional Plan. That process is ongoing. Read Mikisew’s application here.
JFK works closely with the Mikisew Government and Industry Relations office to ensure that project proponents and governments meaningfully consult Mikisew and to ensure that Mikisew consultation coordinators have the most up-to-date understanding of consultation jurisprudence and that they receive the support they need.
JFK provides support to Mikisew throughout the process of negotiating and implementing impact benefit agreements and has assisted Mikisew in negotiating complex, multi-year agreements.
Mikisew is also proactive in protecting the ownership and use of its Indigenous knowledge and JFK assists the First Nation to negotiate traditional knowledge-sharing agreements and other agreements about Indigenous knowledge. JFK also works with Mikisew in the negotiation of consultation protocols and consultation capacity agreements with government and industry.
Mikisew and JFK Law recently worked together to develop and file a petition with UNESCO to have Wood Buffalo National Park included on the list of world heritage sites in danger. Read more about that petition here.
“I have been working with JFK law since they opened. At the time, MCFN was inundated with regulatory consultation pertaining to resource development in the Athabasca Oil Sands which was very overwhelming and challenging for us; however, with the assistance with our legal team at JFK our workload has become much more strategic, focused and highly productive. JFK not only provides legal and regulatory support but also works closely with our GIR team to assist with capacity building to allow for our staff to learn key legal consultation requirements and effectively ensure Mikisew’s due diligence that these requirements are being met. I am pleased to say that Bob, Rosanne, Karey, Mark and Jeff are not only our legal advisors but have also become our friends and mentors. Respectful, dependable and caring are just a few of the key words that I would use to describe our working relationship with them.”
Melody Lepine, MCFN