On July 11, 2014, the Supreme Court of Canada delivered its decision in Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48, also known as Keewatin. The decision affirms the Court’s approach in Tsilhqot’in Nation v British Columbia, 2014 SCC 44: provinces are able to regulate over areas within their constitutional jurisdiction, even where that regulation may affect Aboriginal and treaty rights.
The Supreme Court upheld the Ontario Court of Appeal’s ruling that the province of Ontario could “take up” lands so as to limit treaty rights in the Keewatin area of Treaty 3 and by extension, in treaty areas across the province. No federal approval will be required. Provinces are still entitled to regulate in the areas of forestry, mining and resource development, subject to the requirement that the exercise of that power must be done according to the honour of the Crown and the meaningful respect for treaty rights.
The decision is relevant for resource development in areas covered by numbered treaties, such as northeastern BC, Alberta, Saskatchewan, Manitoba and Ontario and includes such areas as the Ring of Fire in Ontario.
The Grassy Narrows First Nation action concerned Treaty 3, which was entered into in 1873 by Canada and the Salteaux Tribe of the Ojibway Indians. At issue was a “harvesting clause” in the treaty, which gave the Ojibway the right to hunt and fish throughout the surrendered lands, except on tracts that were “required or taken up for the settlement, mining, lumbering or other purposes by the Government of the Dominion of Canada”.
The key issues were: (1) whether the Ontario government had the authority, without the authorization of the federal government, to “take up” tracts of land for forestry so as to limit the harvesting rights, and (2) if the answer to the first issue was “no”, whether the province had the authority to justifiably infringe the harvesting rights pursuant to the Constitutional division of powers.
Supreme Court Decision
In this case, the impugned taking up was the issuance of a forestry license which allowed clear-cut forestry operations in the area. According to the First Nation, this would have infringed their harvesting rights.
The appellant First Nations advanced the position that only the federal Crown was empowered to “take up” lands under Treaty 3. However, the Supreme Court emphasized that the treaty was not made with Canada, but with the Crown, an entity with both a provincial and federal component. The Crown in right of Ontario is equally “bound by and empowered to act with respect to the treaty”.
Even though the federal Crown has jurisdiction over “Indians and lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867, this does not create a supervisory role for the federal Crown. No federal “authorization” or two-step process would be required for Ontario to take up lands under treaty. While s. 91(24) gives the right to the federal government to enact legislation that may affect provincial lands, a province may still make laws according to its heads of power under s. 92 and under s. 109 of the Constitution Act, 1867, which gives the provinces constitutional control over their lands and natural resources.
When a province “takes up” land under a treaty, it will be required to act in a way that respects the honour of the Crown and the harvesting rights in the treaty. Any taking up must therefore respect the test set out in Mikisew. In Mikisew, the Crown’s right to take up lands is subject to its duty to consult and, if appropriate, accommodate beforehand. The duty is grounded in the honour of the Crown. The Crown must inform itself of the impact that the taking up will have and it must then deal with the First Nation in good faith. If the taking up leaves the First Nation with no meaningful right to hunt, fish, or trap in the territories over which they traditionally did so, the taking up may constitute an infringement of the treaty rights. In other words, the content of the duty turns on the degree to which the treaty rights would be affected.
Finally, the Supreme Court addressed its decision in Tsilhqot’in, remarking that it was a full answer to any questions of whether interjurisdictional immunity applied. The Supreme Court stated in Tsilhqot’in that interjurisdictional immunity is a doctrine that governs the operation of the federal and provincial governments in their various jurisdictions. Where Aboriginal and treaty rights come into play, those rights limit both federal and provincial jurisdiction. Applying interjurisdictional immunity does not allow for the cooperation necessary to properly deal with Aboriginal and treaty rights.
This should reassure proponents that provinces can continue to consistently regulate and authorize development activities where lands are governed by treaty. The Court’s ruling is consistent with previous decisions such as Mikisew, and affirms the right to take up lands governed by treaty. Such taking up will remain subject to the duty to consult and to accommodate where appropriate.
The decision is therefore unlikely to create the same level of controversy generated by the Court’s Tsilhqot’in ruling on Aboriginal title. As expected, the decision did not provide clarity on uncertainties arising out the Court’s Tsilhqot’in decision two weeks ago regarding Aboriginal title in treaty areas and does not change the law on consultation and appropriate accommodation.