On September 19, the Supreme Court of Canada issued two important leave to appeal decisions on cases that will be of interest to project proponents.
In the first case, the Court declined to hear the appeal in Ross River Dena Council v. Government of Yukon, 2012 YKCA 14. The case dealt with the Yukon Government’s duty to consult with First Nations when allowing mineral claims to be recorded under the “open entry” claim staking system. The Ross River Dena Council sought a declaration that the Government of Yukon had a duty to consult prior to recording the grant of mineral claims under the Yukon Quartz Mining Act. In the lower court decision, the chambers judge concluded that the Government of Yukon had a duty to consult, but found that the obligation was discharged by providing the First Nation with notice after the claim was filed. The Court of Appeal agreed there was a duty to consult but did not agree with the chambers judge that mere notice of the recording of a claim will always satisfy the Government of Yukon’s obligations. However, the declarations were suspended for one year to allow the Government to consider how to incorporate appropriate consultation into the Act (in the meantime, the Government of Yukon has already initiated steps to amend the legislation in question). The Supreme Court of Canada’s dismissal of the leave to appeal application means that the Yukon Court of Appeal’s decision will stand.
In the second case, the Court granted leave to appeal in Keewatin v. Minister of Natural Resources (Ontario). The case turns on wording of the “taking up” clause in Treaty 3, one of the historic treaties in Ontario that were negotiated in the late 1800s and early 1900s (in general terms, Treaty 3 covers the extreme southwestern corner of Ontario, west of Lake Superior towards the Manitoba border). The issue arose in the context of logging activities authorized by the Province of Ontario, which were alleged to potentially affect the treaty harvesting rights of members of the Grassy Narrows First Nation, a signatory to Treaty 3.
The “taking up” or harvesting rights clauses in most historic treaties contain wording to the effect that the rights apply throughout the lands subject to land taken up by government. However, the wording of the taking up clause in Treaty 3 differs importantly: it says that the rights apply throughout the treaty area “… 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 any of the subjects thereof duly authorized therefore by the said Government”. The italicized words were the focus of the case: did they mean that only the federal government could authorize the use of lands that would interfere with the exercise of treaty rights, or could the Province of Ontario also authorize such uses of lands? The trial judge held that Treaty 3 should be interpreted literally and that Ontario does not have the power to authorize activities which significantly interfere with Treaty 3 harvesting rights. The Ontario Court of Appeal allowed the appeal and found that Ontario has jurisdiction over Treaty 3 lands. The Supreme Court of Canada will now weigh in on the question.
Obviously the case is a significant one. If the lower court’s approach was to be adopted, it could significantly limit the Province’s jurisdiction to authorize natural resource development activities that would impact on Treaty 3 rights and significantly expand the potential jurisdiction of the federal government over activities in the Treaty 3 area that would otherwise be subject to provincial jurisdiction only — such as decisions to authorize forestry, mining or other provincially-regulated resource development activities. For developers with interests in the Treaty 3 area, such a decision could create uncertainty as to the validity of tenures and authorizations issued by the Province of Ontario over the past 100+ years.