Call it the Supreme Court’s summer of Aboriginal law: Just a little over two weeks after releasing a landmark decision on Aboriginal title in Tsilhqot’in Nation v British Columbia, the Supreme Court of Canada has returned with a landmark decision on treaty rights in Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48 (referred to as “Keewatin” in the lower courts). The decision is much shorter—55 paragraphs to Tsilhqot’in Nation’s 153—but vitally important for resource development in Ontario. Chief Justice McLachlin wrote both of these latest decisions, continuing to put her stamp on, and shape the future of, Aboriginal law in Canada.
In a nutshell
The legal question at issue: Could Ontario “take up” lands—and therefore limit First Nations harvesting rights—under the post-Confederation Treaty 3, without federal approval?
The Supreme Court of Canada’s answer? A resounding yes: “Ontario and only Ontario has the power to take up lands under Treaty 3.” (See paras 30 and 50.)
But importantly, this does not mean that Ontario can act unilaterally, as will be discussed.
The licence that sparked the litigation
Ontario issued a “sustainable forest licence” in 1997 to the predecessor of Resolute FP Canada Inc. The permit would allow the pulp and paper manufacturer to conduct “clear-cut forestry operations” in a forest in the Keewatin area, the section of Treaty 3 lands at the heart of this case. The Grassy Narrows First Nation sued in 2005 to have the licence set aside as a violation of their harvesting rights under Treaty 3. (See para 18.)
The trial judge found that Ontario could not “take up” Treaty 3 land in a way that could limit harvesting rights without federal approval, meaning that Ontario had not followed the proper steps in granting the licence in this case. (See Keewatin v Minister of Natural Resources, 2011 ONSC 4801.)
The Court of Appeal disagreed, and held that Ontario did not need to involve the federal government. But Ontario could not act unilaterally in the true sense of the word: Ontario’s duty to consult and accommodate the affected Aboriginal groups would still apply. (See Keewatin v Ontario (Natural Resources), 2013 ONCA 158.)
Grassy Narrows appealed. The members of Grassy Narrows are the descendants of the Ojibway, who signed Treaty 3 shortly after Confederation. The other appellant before the Supreme Court was the Wabauskang First Nation, which has traditional territory in the Keewatin area. (See para 24.)
History and constitutional law collide
It may have seemed obvious that Ontario could engage in the “taking up” process without involving the federal government or needing federal authorization, as long as it fulfilled its duties of consultation and accommodation – especially because, as the Court pointed out, “Ontario has exercised the power to take up lands for period of over 100 years, without any objection by the Ojibway” (para 40). But this litigation involved a confluence of historical and constitutional arguments that called this practice into question.
There are three key historical periods to review:
- 1873: Treaty 3 was concluded between representatives of Canada and the Ojibway. The treaty included a “taking up” provision, reproduced at paragraph 11:
. . . they, the said Indians, shall have [the] right to pursue their avocations of hunting and fishing throughout the [said] tract surrendered as hereinbefore described . . . and saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government.
The clause refers to the Government of the Dominion of Canada. At the time the treaty was concluded, the Keewatin area was clearly part of Canada. But there was a boundary dispute between Canada and Ontario over much of the rest of the territory, which took several decades to resolve.
- 1874-1894: Through negotiation, arbitration, litigation, and legislation, the boundary dispute was resolved in Ontario’s favour.
- 1912: The Keewatin area, a swath of Treaty 3 territory, became part of Ontario.
The Supreme Court reviewed the evidence from these periods and upheld the Court of Appeal’s conclusion: When Ontario took control over the Keewatin area, it stepped into the shoes that Canada had filled when negotiating Treaty 3. The bottom line, again, is that “Ontario and only Ontario has the power to take up lands under Treaty 3.”
Chief Justice McLachlin gave three main reasons for this result: Constitutional interpretation; treaty interpretation; and legislative interpretation. To canvass the last two reasons first, the Court found that neither Treaty 3 nor related legislation contemplated a two-step process involving federal oversight – it was always expected that Ontario would be the only level of government to exercise the taking-up power. (See paras 38-40 on the terms of Treaty 3, and paras 41-49 on the related legislation.)
The constitutional reason is worth examining in a bit more detail, because it relates to the difference between “the Crown,” on the one hand, and the provincial and federal levels of government, on the other hand. This distinction is an intriguing one that can get lost in constitutional analysis.
The trial judge had found that Treaty 3 was between the Ojibway and the federal government, so Ontario could not just step into the federal government’s role as the Ojibway treaty partner even when the disputed territory and the Keewatin area became part of the province.
This was the wrong way to look at it, according to both the Court of Appeal and the Supreme Court of Canada.
The Crown is a concept, in the Supreme Court’s view – “a concept that includes all government power” (para 39; emphasis added). In the treaty context, the provincial and federal governments are each an “emanation of the Crown” (para 48). This makes sense, when you think about references to the Crown “in right of” Canada or “in right of” one of the provinces. (See para 32.)
So for the purposes of interpreting the treaty, the idea is this: “The promises made in Treaty 3 were promises of the Crown” (para 35; emphasis added). But if the Crown is more of a “concept” in treaty-making than an actual government body, what do these promises mean in practice?
To answer the practical question of who is responsible for executing the treaty, the Court resorted to first principles of constitutional law: “The level of government that exercises or performs the rights and obligations under the treaty is determined by the division of powers in the Constitution” (para 30; emphasis added).
(Note: This is a traditional division of powers analysis; the Court did not discuss the oft-cited argument that there exists a third level, of Aboriginal government.)
The division of powers analysis for the forestry-related issue in this case pointed to Ontario as the responsible level of government (see paras 31-35): Taking up land for forestry purposes falls within provincial power, through section 92(5) of the Constitution Act, 1867(“Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon”) and section 92A, which “gives the Province exclusive power to make laws in relation to non-renewable natural resources, forestry resources, and electrical energy.” Combined with the taking up clause in Treaty 3, Ontario would be within its constitutional rights to pursue forestry opportunities on treaty land, and affected First Nations would be entitled to consultation (more on this below).
As the Court of Appeal had put it upon reviewing these constitutional provisions (at para 153):
When Ontario stepped into Canada’s shoes by virtue of the process of constitutional evolution, the legal standard that binds the Crown did not change and the treaty right is fully protected.
Also crucial to the Supreme Court’s constitutional discussion was section 109 of the Constitution Act, 1867, which applies to the four original provinces to Confederation and gives Ontario the beneficial interest in “all lands, mines, minerals, and royalties” within its borders.
Two other constitutional points:
First, the Supreme Court said that the federal power over “Indians, and Lands reserved for the Indians” under section 91(24) of theConstitution Act, 1867 did not change the analysis of the province’s taking up power.
Second, in response to the parties’ arguments on the increasingly narrow doctrine of interjurisdictional immunity, Chief Justice McLachlin simply pointed to Tsilhqot’in Nation. She had affirmed there that it is the Sparrow test derived from section 35 of the Constitution Act, 1982, and not the doctrine of interjurisdictional immunity, that applies to determine whether a treaty right has been infringed and whether the province can justify the infringement (Tsilhqot’in Nation at paras 140-152).
Chief Justice McLachlin said this about justification in Tsilhqot’in Nation at para 139:
Neither level of government is permitted to legislate in a way that results in a meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the broader public interest and is consistent with the Crown’s fiduciary duty owed to the Aboriginal group. The result is to protect Aboriginal and treaty rights while also allowing the reconciliation of Aboriginal interests with those of the broader society.
The duty to consult and accommodate still applies
Of course, Ontario’s power to take up lands in accordance with Treaty 3 is not unlimited. In an important passage for Aboriginal groups across Canada, the Court reiterated that the existence of a treaty does not oust the Crown’s duty to consult and accommodate, a duty based on the honour of the Crown – no matter what level of government is involved.
This point has been made in several Supreme Court decisions over the last few years. As Justice LeBel put it in Behn v Moulton Contracting Ltd, 2013 SCC 26,  2 SCR 227 at para 27:
The Crown cannot in a treaty contract out of its duty to consult Aboriginal peoples, as this duty “applies independently of the expressed or implied intention of the parties”: Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53,  3 SCR 103, at para. 61.
Mikisew First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69,  3 SCR 388 was about another post-Confederation treaty with a “taking up” clause: Treaty 8, which covers parts of Saskatchewan; Alberta; British Columbia; and the Northwest Territories. On the duty to consult, Justice Binnie explained at para 34:
In the case of a treaty the Crown, as a party, will always have notice of its contents. The question in each case will therefore be to determine the degree to which conduct contemplated by the Crown would adversely affect those rights so as to trigger the duty to consult. Haida Nation and Taku River set a low threshold. The flexibility lies not in the trigger (“might adversely affect it”) but in the variable content of the duty once triggered.
Justice Binnie found in Mikisew that the Crown breached its duty to consult when it unilaterally decided to build a winter road through part of the treaty area and did not provide proper notice to or properly engage with the Mikisew, stating forcefully that:
…unilateral Crown action (a sort of “this is surrendered land and we can do with it what we like” approach)…ignores the mutual promises of the treaty, both written and oral, but also is the antithesis of reconciliation and mutual respect.
The conclusion of a treaty does not end the reconciliation process (Mikisew at para 54).
Grassy Nation is further confirmation that the Crown must make more than superficial or token efforts to consult, and potentially accommodate (see para 52):
Where a province intends to take up lands for the purposes of a project within its jurisdiction, the Crown must inform itself of the impact the project will have on the exercise by the Ojibway of their rights to hunt, fish and trap, and communicate its findings to them. It must then deal with the Ojibway in good faith, and with the intention of substantially addressing their concerns (Mikisew, at para. 55; Delgamuukw v. British Columbia,  3 S.C.R. 1010, at para. 168). The adverse impact of the Crown’s project (and the extent of the duty to consult and accommodate) is a matter of degree, but consultation cannot exclude accommodation at the outset.
As it did in Mikisew, the Court in Grassy Narrows suggested that a First Nation dissatisfied with the impact of government action on its treaty rights can bring an action for treaty infringement.
Note: The focus in Grassy Narrows was the Crown’s consultation and accommodation obligations, and, like in Tsilhqot’in Nation, the Court did not touch the contentious issue of delegation of these obligations to project proponents.
A final note on findings of fact
Trial judges do a lot of heavy lifting in Aboriginal cases; here, the issues were so involved that the trial was split into two phases, and the trial judge wrote a 1651-paragraph decision just dealing with phase one. The trial judge in Tsilhqot’in Nation, for his part, had even gone to see the land where Aboriginal title was claimed.
Appellate courts then apply their typical standards of review to trial decisions based largely on historical evidence. In Aboriginal cases, like other cases, a trial judge’s findings of fact from the evidence will only lead to appellate intervention if they reveal palpable and overriding error. But in a case about a pre-Confederation treaty, for example, there are no viva voce witnesses who can testify to what actually happened. Everything, including the historical records of treaty negotiations, is open to interpretation. This makes the trial judge’s and appeal courts’ tasks more challenging.
And yet our courts make do with their usual fact-finding and appellate review processes.
In Tsilhqot’in Nation, the Court upheld the trial judge’s conclusion on Aboriginal title, and made the point of saying that it was his role “to sort out conflicting evidence and make findings of fact. The presence of conflicting evidence does not demonstrate palpable and overriding error” (para 60). In Grassy Narrows, the appellate courts overturned the trial judge’s findings of fact. The problem for the two appellate courts was really about a lack of historical evidence to support the trial judge’s conclusion that there should be federal supervision over the taking up process. The Supreme Court therefore agreed with the Court of Appeal that the trial judge had made palpable and overriding errors in purporting to find certain facts from the historical evidence (see para 40).
In a way, all judges faced with an Aboriginal law case become historians. It’s always interesting to wonder if their legal and judicial training has prepared them for that unique role, whether the adversarial process is a suitable way for first-instance judges to sift through historical evidence, and what an alternative appellate standard of review might look like.