On July 11, 2014, the Supreme Court of Canada released its decision confirming Ontario has the jurisdiction to take up and regulate the development of Crown lands in a portion of the Treaty 3 area covering northwestern Ontario. The court rejected the First Nation's argument that the treaty contemplated a two-step process involving federal supervision or approval before the province could take up land for settlement, mining, lumbering or other purposes as set out in the treaty. The court also restated the Crown's duty to consult and, if necessary, accommodate the interests of First Nations where Crown lands are being taken up for development.

Right to take up Crown lands surrendered by treaty

Canada and the Ojibway (ancestors of the Grassy Narrows First Nation) signed Treaty 3 in 1873. The Ojibway yielded ownership of the Treaty 3 territory to Canada in return for reserves, annual payments and the right to harvest non reserve lands for hunting, trapping and fishing. The harvesting rights could be exercised on surrendered non-reserve lands until such lands were "taken up" for settlement, mining, lumbering or other purposes by Canada.  

The Supreme Court of Canada upheld the Ontario Court of Appeal's decision that the province alone had the power to take up lands under the treaty based on Canada's Constitution, the interpretation of Treaty 3 and legislation. While Treaty 3 was negotiated with the Crown in right of Canada, the Crown in right of Ontario was bound by and authorized to act with respect to the treaty once the lands fell under provincial jurisdiction. As the lands covered by Treaty 3 had become part of Ontario, they fell under provincial jurisdiction and the province was entitled to take up lands for forestry and other purposes.  

The court also noted the province had exercised the power to take up lands for over 100 years without any objection by the First Nation. This supported the interpretation that federal approval had never been contemplated as part of Treaty 3.

Now that the jurisdictional issue has been resolved, the Ontario Superior Court will decide in the next phase of the litigation whether the forestry licence issued to Resolute FP Canada (formerly Abitibi-Consolidated ) must be set aside on the basis that it violated Grassy Narrows’ Treaty 3 harvesting rights.

Consultation

While the court noted that the scope of the taking up clause under Treaty 3 was not at issue, it concluded its decision by restating the Crown's duty to consult:

  • The power to take up Crown lands in the Treaty 3 area was not unconditional and such powers had to be exercised in accordance with the honour of the Crown and subject to the Crown's fiduciary duties in dealing with aboriginal interests;
  • The Crown's right to take up lands under Treaty 3 must respect the harvesting rights of the First Nation and is subject to the duty to consult and accommodate;
  • The Crown must inform itself of the impact of the project and communicate its findings to the First Nation. It must then deal with the First Nation in good faith and with the intention of substantially addressing any concerns;
  • Not every taking up of Crown lands will constitute an infringement of the treaty harvesting right;
  • Any taking up by the Crown leaving no meaningful right to hunt, trap or fish could create a potential action for treaty infringement.

Implications

Where First Nations have surrendered their lands pursuant to treaty, the province will continue to have authority and responsibility to take up and authorize development on Crown land. Federal approval or supervision is not required even where treaties were initially negotiated with Canada.

The Crown's duty to consult with First Nations where development is proposed on Crown lands remains unchanged. Significantly, the court again recognized the possibility that First Nations could commence actions for treaty infringement where the Crown has authorized development taking up lands to such an extent that there is no longer a meaningful right to hunt, trap or fish. The Supreme Court has not yet ruled on how the concept of cumulative impacts of development may affect the ability to take up Crown land.

The decision also highlights the distinction between treaty lands that were historically surrendered to the Crown and lands that were never surrendered and remain subject to a potential aboriginal title claim (Tsilhqot'in Nation v. British Columbia, 2014 SCC 44). Lands surrendered by First Nations under treaty remain Crown lands and their development may be authorized subject to the duty to consult. In parts of Canada that were not surrendered by treaty, such lands will no longer be Crown lands if and when aboriginal title is declared by a court.

Click here to read the Grassy Narrows First Nation v Ontario (Natural Resources) decision.