Canadian courts generally defer to the right of Parliament to make laws but two first nations who are challenging the environmental provisions in two budget bills say they are not going after Parliament – they are going after the Conservative government that drafted the laws in the first place.
The Mikisew Cree First Nation and the Frog Lake First Nation, both located in Alberta, filed documents in Federal Court on Tuesday arguing that the two bills reduce federal environmental oversight and violate the government's treaty obligations to protect traditional aboriginal territory.
The case comes as first nations people across Canada are staging ongoing protests to oppose bills in question, and others, as part of a grassroots movement calls Idle No More and as Prime Minister Stephen Harper prepares to meet with chiefs on Friday to discuss the many problems facing native communities.
Existing jurisprudence says the courts must respect the supremacy of Parliament to pass legislation, but Robert Janes, the lawyer for the two first nations, says his clients are not taking on politicians.
"The government developed the bill, the government developed environmental policy, and the government is developing regulations to give effect to it," Mr. Janes told a news conference on Tuesday morning. "And we say that consultation should have started before it ever got to Parliament."
Courts have affirmed that the government's duty to consult, and to make accommodations, at the point that action is contemplated that might infringe on first nations right.
Judges are also reluctant to make rulings that affect more than the actual complainants. It would be very difficult, for instance, for the Frog Lake First Nation to ask for the court to protect territory that has never been their own.
That's why Mr. Janes says the case his clients are bringing focuses on the Treaty 8 and Treaty 6 territories – the regions covered by the two first nations involved.
"That's all that they, by themselves, can go after," he explained. "However, we believe that the principles are a broader issue and we hope that, if the government sees what is said about what is happening in the Frog Lake territory and the Mikisew territory, they will look at how they govern in other parts of Canada."
The Mikisew and the Frog Lake First Nations are, by national standards, well off indigenous communities, in large part because they have embraced development close to their reserves. The Frog Lake First nation owns its own energy resources company. But the chiefs of those communities say their people would not have accepted that development without federal environmental oversight.
Mr. Janes said budget Bill C-45 and it predecessor, Bill C-38, significantly reduce the number of federal environmental assessments and cuts the number of waterways protected by the Navigable Waters Protection Act.
When the treaties were signed, the first nations asked the government promised to protect the traditional way of life, especially the hunting, fishing and trapping that the natives enjoyed outside their reserves, he said.
But turning the responsibility for environmental oversight over to the provinces and territories – as the government has largely done in these bills – is not acceptable to the first nations, said Mr. Janes, because the provinces reap revenues from resource development. And, despite the obligation to consult, Mr. Janes said the government was "spectacularly secretive" when it crafted the omnibus bills.