Two weeks after the highly publicized Tsilhqot’in v. British Columbia decision, the Supreme Court of Canada has released another prominent decision in the area of Aboriginal law.  The issue in Grassy Narrows First Nations v. Ontario (also referred to as Keewatin v. Ontario) was a narrow but important one – does a province (rather than the federal government) have the authority to approve logging, mining and other activities on Crown lands that are subject to treaty rights? The Court’s answer can be summarized as “yes, but only if the province has met its duty to consult.”

What is the significance of the case to industry?

The stakes in the case were high – a ruling against the province would have cast doubt on the validity of provincial approvals for forestry, mining and other activities on Crown lands that were surrendered by treaty. By rejecting that outcome, the Court has provided a pragmatic framework for dealing with surrendered lands, while ensuring that provinces respect treaty rights.  This ruling should allow industry participants to breathe a little easier knowing that existing provincial approvals on surrendered lands are valid, provided the province’s duty to consult has been fulfilled.

What was the issue in Grassy Narrows?

The dispute in Grassy Narrows arose from a licence issued in 1997 by the provincial government to a forestry company, Resolute FP, to carry out clear-cut operations on Crown lands surrendered by the Ojibway under Treaty 3.

Treaty 3 was signed in 1873 between Canada and the Ojibway Chiefs from what is now Northwestern Ontario and Eastern Manitoba.  As part of Treaty 3, the Ojibway retained a right to hunt and fish on the surrendered lands except where taken up by Canada for “settlement, mining, lumbering or other purposes”. A portion of the surrendered lands (known as the Keewatin area) became part of Ontario in 1912.

The court was asked whether Ontario needed the approval of the federal government to “take up” lands within the Keewatin area that would limit the Ojibway’s treaty harvesting rights. In 2011, an Ontario trial judge determined that the taking-up rights in Treaty 3 imposed a two-step process that required both the approval of the federal and provincial governments before land could be taken up.  The decision was overturned by the Ontario Court of Appeal and ended up before the Supreme Court of Canada for final resolution.

What did the Supreme Court of Canada decide?

The Court determined that the province of Ontario has the right under Treaty 3 to take-up lands without federal approval. Although Treaty 3 was negotiated by the federal government, it is an agreement between the Crown – a concept that includes all government power in Canada – and the Ojibway.  Therefore, Treaty 3 binds whichever level of government has the constitutional power to exercise or perform the rights and obligations of the Crown under the treaty. Since 1912, the province of Ontario has had the exclusive authority under the Constitution to take up lands for forestry, mining and settlement in the Keewatin lands. Indeed, the Court recognized that the province had exercised that power for nearly 100 years without objection from the Ojibway.

Are there limits on the Ontario government’s ability to take up lands?

While the province does not need federal approval to take up lands in the Keewatin area, the province is obligated to respect the harvesting rights of the Ojibway over the land.  Consequently, the right to take up lands under Treaty 3 is subject to the duty to consult and, if appropriate, accommodate Aboriginal interests beforehand.

To fulfil its duty to consult, the province must first inform itself of the impact of a particular project on the Ojibway’s harvesting rights, and then deal with the Ojibway in good faith with the objective of substantially resolving any concerns. If a taking-up would leave the Ojibway with no meaningful right to hunt, trap or fish, it will amount to an infringement of Treaty 3 that will need to be justified using the three criteria set out by the Court in prior decisions (most recently in Tsilhqot’in)(i) the duty to consult and accommodate has been fulfilled, (ii) the actions are backed by a compelling and substantive objective, and (iii) the actions are consistent with the Crown’s fiduciary obligation to the group. In this respect, the decision is a confirmation of the Court’s past rulings on the duty to consult and does not break new ground.