Paul Bickford
Northern News Services

Fort Smith (Nov 28/05) - The Supreme Court of Canada in a unanimous decision ruled the Mikisew Cree were not properly consulted about a proposed winter road in Wood Buffalo National Park.

"The duty of consultation, which flows from the honour of the Crown, was breached," wrote Justice Ian Binnie in a 41-page judgment, agreed to by the eight other justices, Nov. 24.

"The government's app-roach, rather than advancing the process of reconciliation between the Crown and the Treaty 8 First Nations, undermined it."

The court did not say the road should never be built, leaving at least one person feeling hopeful.

"It seems to me it's not the end of the project," said Fort Smith Mayor Peter Martselos, the president of the proponent organization, the Thebacha Road Society.

"They just say the federal government has to consult with the Mikisew in the proper way."

The Thebacha Road Society proposed a 118-km route between the Alberta communities of Peace Point and Garden River along an old logging road.

It has been touted for decades as a new way south for Fort Smith residents and a means to attract winter tourists.

Martselos said the Thebacha Road Society will wait to see what the federal government in the person of Parks Canada is going to do as a result of the court ruling.

Parks Canada, which had approved the project in 2000, will talk to the Thebacha Road Society, the Mikisew Cree and involved communities, said Kathryn Emmett, the executive director for Northern Canada with Parks Canada in Calgary.

But rather than merely having public meetings in affected communities, Parks Canada must "engage directly" with the Mikisew Cree, Justice Binnie wrote. "The Crown (Parks Canada) must also solicit and listen carefully to the Mikisew's concerns, and attempt to minimize adverse impacts on its treaty rights."

"Needless to say we're ecstatic," said Jeffrey Rath, the Calgary lawyer for the Fort Chipewyan-based Mikisew Cree First Nation.

The ruling will have national implications for treaty rights and makes clear that Mikisew concerns have to be "demonstrably integrated" into planning for the road, Rath said, although the ruling doesn't give the Mikisew a veto over the project.

As for what happens now, "I can't even guess at this point," Rath said.

Asked what the Mikisew position is on the winter road proposal, the lawyer responded, "I don't think the Mikisew have ever been consulted enough to make up their minds."

When the federal government originally approved the winter road, which was to run through the Mikisew's reserve at Peace Point, the Mikisew protested.

The road alignment was modified, again without consultation, to track around the boundary of the reserve.

Justice Binnie noted that the road alignment traversed the traplines of about 14 Mikisew families who reside in the area near the proposed road, and others who trap in the area but don't live there.

The hunting grounds of up to 100 Mikisew people are also in the area.

Last week's ruling overturned a 2004 decision by the Federal Court of Appeal, which had set aside an 2001 injunction against the project issued by the Federal Court of Canada.