Robert Janes QC, Karey Brooks, and Estella Charleson appeared at the Federal Court of Appeal today in Edmonton to argue the Omnibus Appeal on behalf of Mikisew Cree First Nation. This case involves a challenge to the federal government’s decision to drastically overhaul the federal environmental protection laws in 2012 without consultation with Mikisew Cree First Nation (or any First Nation). Justice Hughes in the court below correctly found the duty to consult was triggered and breached. Canada appealed his decision. Mikisew cross appealed on the basis that the Justice Hughes incorrectly found the duty arose on the introduction of the Bills to Parliament rather than during their development. A link to our analysis of this case can be found here.
Canada opened today’s hearing by bringing an adjournment motion on the basis that the new government needed three months to review the file and consider whether the issues under appeal could be resolved. The panel expressed concerns about the application being brought late and questioned whether the issues could in fact be resolved within three months or at all. Canada indicated that it would be ambitious and there would likely be remaining issues that would require judicial determination. Mikisew pointed out that having these issues fought out in court was damaging to the relationship between the Crown and Aboriginal Peoples and urged the Panel to allow the parties to at least try to reconcile their interests. After a brief adjournment, the Panel granted the application and ordered the appeal be heard at the next Federal Court of Appeal sitting (the 2nd week of May).
Mikisew was granted its costs thrown away for having to prepare for the appeal.