Native bands challenge omnibus budget bill in court
Two native bands are attempting to challenge parts of the federal government's omnibus budget bill in court.
The bands are the Mikisew Cree and the Frog Lake First Nation, both from Alberta.
The chiefs of both bands arrived in Ottawa Monday to present their application to the Federal Court on Tuesday.
They are asking for a judicial review of the environmental provisions in two budget bills — Bill C-38 and Bill C-45 — because of proposed changes to the Fisheries Act and the Navigable Waters Protection Act.
The bands are basing their application on past Supreme Court of Canada decisions that have recognized that the government has a constitutional duty to consult with aboriginal groups about decisions that may adversely impact lands, waters and resources that are subject to aboriginal or treaty claims. And consult doesn't mean just polite listening; the court has said that the government has the duty to consult, and where appropriate, accommodate.
Both the Mikisew Cree and the Frog Lake First Nation are financially successful bands from resource-rich territories. The Mikisew Cree won a Supreme Court case in 2005 about the duty to consult regarding a road through a part of Wood Buffalo Park in its territories close to the oilsands.
Chief Steve Courtoreille of the Mikisew Cree said Monday, "We depend on ... our livelihood, our way of life … out in the land. They're [the government] supposed to protect our land, waters, air. Now it's giving industry open season to our territory."
George Stanley, the former chief of Frog Lake First Nation, in Ottawa because the present chief is sick, said, "We've been at it for 130-plus years," meaning negotiations with government, but added that his people are now more knowledgeable and can better understand what he called the government's "language.”
Both men say their bands were not consulted at all by the government. They, as well as the Idle No More movement, are particularly bothered by a new act that was buried in one of the omnibus budget bills, C-45.
The new act would replace one of the country's oldest laws, the Navigable Waters Protection Act. It was established in 1882 and said that no one could block, alter or destroy any water deep enough to float a canoe without federal approval.
That act was amended in 2009 to leave the description of protected water largely up to the minister.
This new act focuses on providing federal protection only for Canada's busiest rivers, lakes and oceans. It's designed to do away with red tape created by the old act that said that even docks and culverts needed federal approval that often took years to get.
Although past Supreme Court decisions have ruled that the duty to consult with aboriginal peoples must deal with specific examples of adverse impact, Robert Janes, the lawyer for the two bands, told CBC News the case would try to push the law to the “next level.”
"This is something the courts have been moving to over the years. Once upon a time the government's position was, tell us if we're disturbing a grave but now over time the court has said, you have to talk about environmental review processes, planning processes — you have to talk about strategic decisions.
Janes added that he fully expects the issue to once again end up before the Supreme Court.
Courtoreille and Stanley, now a regional chief with the Assembly of First Nations, went immediately from the airport to Victoria Island to express support for Chief Theresa Spence, now almost a month into her hunger strike.
