On July 11, 2014, the Supreme Court of Canada (SCC) released its decision in Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48. In a unanimous judgment written by Chief Justice McLachlin, the SCC upheld the decision of the Ontario Court of Appeal (ONCA) in Keewatin v. Ontario (Natural Resources), 2013 ONCA 158 in its entirety, confirming that valid provincial laws over forestry, mining, settlement and other matters continue to apply in Treaty 3 territory in Ontario and are entirely consistent with the terms of Treaty 3. Our analysis of the ONCA’s decision and the background of this case is available here.

Grassy Narrows will be viewed as a positive decision from the perspective of government and industry, as it resolves considerable uncertainty that had been created by the lower court decision (2011 ONSC 4801). Based on its interpretation of Treaty 3, the lower court had suggested that Ontario could not “take up” lands in the Keewatin area of Ontario absent a two-step process requiring prior authorization of the federal government. This would have had the practical effect of essentially freezing Ontario’s independent authority to regulate resource development on those lands, despite such matters falling squarely within its provincial jurisdiction in the Constitution Act1867.

Treaty 3 is one of Canada’s historical “numbered treaties”, also known as the land cession treaties. It was entered into in 1873 between Canada and the Saulteaux Tribe of the Ojibway Indians (Ojibway) in respect of lands in what is now northwestern Ontario and eastern Manitoba. Pursuant to the so-called “Harvesting Clause” in Treaty 3, the Ojibway surrendered their interest in the lands in exchange for certain benefits, including rights to hunt and fish, except on tracts “required or taken up for settlement, mining, lumbering or other purposes by [the] Government of the Dominion of Canada”. The Appellants were members of the Grassy Narrows First Nation, descendants of the Treaty 3 signatories. Based on an historical interpretation of Treaty 3, they alleged that Ontario’s issuance of a forestry licence on the Keewatin lands violated the Harvesting Clause.

SCC confirms Ontario’s right to take up lands while limiting Treaty 3 harvesting rights

The SCC confirmed Ontario’s exclusive authority to take up tracts of land in the Keewatin area so as to limit the Appellants’ harvesting rights under Treaty 3. Although the federal government entered into Treaty 3 with the Ojibway, the promises in the Treaty were promises of the Crown, and both the provincial and federal governments are responsible for fulfilling those promises.

The level of government that exercises the particular rights and obligations under the Treaty is determined by the division of powers framework set out in the Constitution Act, 1867. Ontario holds the beneficial interest in the Keewatin lands (by virtue of s.109 of the Constitution), and has the exclusive power to manage and sell such lands and to make laws in relation to the natural resources on those lands (by virtue of ss. 92(5) and 92(A) of the Constitution). The SCC held that, accordingly, “Ontario and only Ontario has the power to take up lands under Treaty 3.”

The federal government’s jurisdiction over “Indians and lands reserved for the Indians”  (under s. 91(24) of the Constitution) does not grant Canada any jurisdiction to take up lands for exclusively provincial purposes. Furthermore, Treaty 3 did not contemplate a two-step process requiring federal supervision over Ontario’s “taking up”, nor was there any suggestion of such an arrangement in historical agreements or legislation made between Ontario and Canada.

SCC confirms the constitutional protection of Aboriginal treaty rights

The SCC confirmed that Ontario’s power to take up lands for forestry or other purposes under Treaty 3 is not absolute. In exercising its rights to take up lands, Ontario must uphold the honour of the Crown, consult with First Nations and accommodate treaty rights as appropriate, whenever they are sufficiently impacted (as described in Mikisew CreFirst Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, which established that the Crown’s duty to consult (as set out in Haida Nation) applies in the context of historical treaty rights).

The SCC held that not every taking up will constitute an infringement of the Treaty 3 harvesting rights, but if Ontario did not fulfill the requirements set out in Mikisew and the taking up of lands would leave 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.” Although not at issue in this case, the SCC held that in an action for treaty infringement, the Sparrow/Badger infringement and justification analysis under s. 35 of the Constitution Act1982 would apply.

The SCC’s recent decision, Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 confirmed that both levels of government may rely on the s. 35 justification and infringement framework in order to preserve the constitutionality of an action, and that the doctrine of interjurisdictional immunity does not apply so as to preclude a province from justifiably infringing treaty rights. The SCC held that Tsilhqot’in Nation provides a full answer to this issue. Our analysis of the Tsilhqot’in Nation decision is available here.

Conclusions

In our view, the SCC’s decision (and that of the ONCA) provides a clear and definitive confirmation of the state of the law as it has existed since Treaty 3 was signed. It confirms how Treaty 3 must be interpreted within the proper constitutional framework, including the divided legislative authority between Canada and the provinces set out in the Constitution Act, 1867Grassy Narrows further confirms the manner in which well-established constitutional safeguards operate for the protection of Aboriginal treaty rights.

With this decision, the SCC has also provided increased certainty with respect to the rights and obligations of Ontario and other provinces in taking up lands for development purposes under other historic numbered treaties containing similar “taking up” provisions.