Thomas Isaac, Heather Weberg, Jeremy Barretto
July 14, 2014
In Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48 (Decision), also known as the Keewatin Decision, the Supreme Court of Canada (SCC) confirmed that provinces have the power to take up treaty lands for resource development projects and other purposes consistent with provincial jurisdiction. Where a province intends to take up treaty lands, it must consult with affected Aboriginal groups regarding the potential impact the project may have on the exercise of treaty rights, such as the rights to hunt, fish and trap. The Decision also confirms that provincial laws of general application apply to treaty lands, and that provincial governments can infringe treaty rights, where justified, all consistent with the SCC’s June 2014 decision in Tsilhqot’in Nation.
The central question in the Decision was whether the Province of Ontario had the power to “take up” lands in the Keewatin area under Treaty 3 so as to limit the harvesting rights under the treaty, or whether it needed federal authorization to do so. The SCC unanimously dismissed the appeal and concluded that only Ontario has the power to take up lands under Treaty 3. This conclusion relied on the SCC’s analysis of Canada’s constitutional framework, the interpretation of Treaty 3 and its history, and the legislation dealing with Treaty 3 lands.
Treaty 3 was signed in 1873 by treaty commissioners acting on behalf of the Dominion of Canada and Chiefs of the Ojibway. In exchange for their territory, the Ojibway received the right to harvest certain lands until such time as they were taken up for settlement, mining, lumbering or other purposes by the Government of the Dominion of Canada.
Treaty 3 territory covers approximately 55,000 square miles and includes the Keewatin area. In 1912, the Ontario Boundaries Extension Act extended Ontario’s boundaries to include the Keewatin territory. Since that time, Ontario has issued licences for the development of these lands.
In 1997, Ontario issued a licence to a large pulp and paper manufacturer to carry out clear-cut forestry operations on Crown lands situated in the Keewatin area. The Grassy Narrows First Nation, descendents of the Ojibway signatories of Treaty 3, commenced an action in 2005 challenging the forestry licence on the basis that it violated their Treaty 3 harvesting rights.
The legal issue was whether Ontario can take up lands in the Keewatin area under Treaty 3, and limit harvesting rights, without federal authorization.
The trial judge held that the taking up of lands in the Keewatin area could only be done by a two-step procedure involving approval by both the federal and provincial governments. The Ontario Court of Appeal disagreed and allowed appeals of the trial judge’s decision. The Court of Appeal found that Ontario’s beneficial ownership of Crown lands within Ontario, combined with provincial jurisdiction over the management and sale of provincial public lands and the exclusive provincial power to make laws in relation to natural resources, provides Ontario with exclusive legislative authority to manage and sell lands within the Keewatin area.
The SCC upheld the Ontario Court of Appeal’s decision and dismissed the appeal.
Although Treaty 3 was negotiated by the federal government, it is an agreement between the Ojibway and the Crown. The SCC concluded that both the federal and provincial government are responsible for fulfilling the treaty promises within their respective constitutional powers.
The SCC found that section 109 of the Constitution Act, 1867 gives Ontario the beneficial interest in the Keewatin lands and the resources on or under the lands. In addition, sections 92(5) and 92A give Ontario the power to take up lands in the Keewatin area under Treaty 3 for provincially regulated purposes, such as forestry. When the lands covered by Treaty 3 were determined to belong to Ontario, it became responsible for their governance with respect to matters falling under its jurisdiction, subject to the terms of the Treaty. Therefore, the SCC concluded that Ontario was not required to obtain federal approval prior to taking up the lands at issue under Treaty 3.
The SCC examined the words of the taking up clause and found that nothing in the text, or the well-documented history of the negotiation, contemplated a two-step process involving both levels of government. The right to take up land rests with the level of government that has jurisdiction under the Constitution. The Court noted that Ontario has exercised its power to take up lands for a period of over 100 years, without any objection by the Ojibway, which, while not determinative of the matters at issue, indicated that federal approval was never considered part of the Treaty.
The jurisdictional interpretation of the take up clause is consistent with the way subsequent governments dealt with the right to take up land under Treaty 3. The 1894 Agreement between Canada and Ontario expressly provided Ontario with the right to take up the lands by virtue of its control and beneficial ownership of the territory. Further, the 1912 transfer of lands confirmed that Ontario would stand in Canada’s shoes with respect to the rights of the Indians in those lands. According to the SCC, the legislation did not constitute a transfer of Crown rights and obligations by Canada to Ontario, but a transfer of beneficial interest in the land. Having acquired the land, Ontario’s constitutional power over lands within its boundaries entitled it to take up land, subject to the Crown’s duties to Aboriginal peoples who had interests in the land.
Finally, the SCC indicated that Ontario’s power to take up the Treaty 3 land is not unconditional. Any taking up of the land for forestry or other purposes must meet the conditions set out by the SCC in its 2005 decision of Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), including meeting the requirements of the Crown’s duty to consult and, if appropriate, accommodate Aboriginal interests. If the taking up leaves the Ojibway with no meaningful right to hunt, fish or trap in relation to the territories over which they traditionally hunted, fished and trapped, a potential action for treaty infringement will arise. The SCC said “[w]hen a government —be it the federal or provincial government — exercises Crown power, the exercise of that power is burdened by the Crown obligations toward the Aboriginal people in question” (para 50).
Finally, the SCC confirmed that provinces can infringe treaty rights if the infringement can be justified under section 35 of the Constitution Act, 1982. The test for how the Crown can justifiably infringe was restated by the SCC in the context of Aboriginal title in its June 2014 decision of Tsilhqot’in Nation and focused on the government having a substantial and compelling legislative objective coupled with evidence that the government is minimally impairing the right and that the balancing of interests favours infringement.
Impacts for Resource Development
The Decision increases regulatory certainty for resource development occurring on lands subject to treaties between the Crown and Aboriginal groups. It confirms that provinces have the ability to take up lands for resource development projects within provincial jurisdiction. This gives provinces the tools to govern provincially regulated projects on treaty lands without the prior consent of the federal government.
The government is required to exercise Crown authority in conformity with the honour of the Crown when dealing with Aboriginal interests, including ensuring that the Crown’s duty to consult is met. Where a province intends to take up lands for the purpose of a project within its jurisdiction, the Crown must inform itself of the impact the project will have on the exercise by First Nations of their rights to hunt, fish and trap, and communicate its findings to them. Such communication must be in good faith, and with the intention of addressing the First Nations’ concerns. A potential action for treaty infringement will arise where government action leaves a First Nation with no meaningful right to hunt, fish or trap in relation to the territories over which its treaty applies and over which it has exercised these rights. This issue was recently addressed by the SCC in Tsilhqot’in regarding Aboriginal title, as discussed in our previous update Tsilhqot’in Decision: The Sky Is Not Falling.
Importantly, both the Decision and the SCC’s earlier decision in Tsilqhot’in confirm that the SCC is balancing the constitutional protection afforded to Aboriginal and treaty rights with the ability of governments to govern and regulate the management of resources. What is clear from both decisions is that the ultimate burden of governing and balancing these interests does not rest with the courts, Aboriginal peoples or with industry, but rests fundamentally with the federal and provincial governments.
Authored by: Thomas Isaac, Jeremy Barretto, Heather Weberg