Background
In 2020, Mikisew Cree First Nation and Athabasca Chipewyan First Nation – two Treaty 8 First Nations with territory in the Athabasca oil sands region – launched a constitutional challenge against Alberta's regime for Crown-Indigenous consultation. The lawsuit identifies two key defects in the provincial consultation regime:
- first, it fails to uphold the Crown's duty to consult with First Nations, including by limiting consultation to "site-specific" issues and excluding broader issues such as cumulative effects; and
- second, by setting up barriers to judicial review, it prevents the courts from meaningfully overseeing Crown consultation and ensuring constitutional compliance.
Alberta applied to strike the case at an early stage. Among other things, it argued that it was improper to challenge the consultation regime directly and in the "abstract." If the Nations wanted to challenge Crown consultation processes, they should only be allowed to do so on a case-by-case basis in respect of individual projects. The Province also argued that the constitutional challenge would necessarily involve collateral attacks on past government decision-making, which the Nations had not sought to challenge at the time, making the challenge an abuse of process.
The Appeal Decision
In Mikisew Cree First Nation v Alberta, 2025 ABCA 304, the Court of Appeal held that the Nations' constitutional challenge to the provincial consultation regime can proceed to trial. The Nations were not limited to only challenging the regime's application in particular instances.
The Court noted the value of providing judicial clarity in the Aboriginal and Treaty rights context, citing recent Supreme Court caselaw emphasizing the role of the courts in advancing reconciliation. It further reasoned that courts should be hesitant to strike Aboriginal and Treaty rights-based claims on abuse of process grounds.
The appeal highlights the distinction between systemic challenges to government policies and individual challenges to decisions made under those policies. By allowing the Nations' direct challenge to the consultation regime to proceed, the Court has sent a message that systemic challenges may be pursued without being mired in the details of specific decision-making or projects.
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