On Friday, July 11th, the Supreme Court of Canada confirmed the decision of the Ontario Court of Appeal that Ontario has exclusive authority to take up Treaty 3 land situated in the province and to regulate activities on such lands so long as it is in accordance with the Treaty and the Crown’s obligations under section 35 of the Constitution Act, 1982.

The First Nation appellants had challenged the validity of a commercial forestry licence issued in 1997 on Crown land in the Keewatin area of Treaty 3 lands. Under Treaty 3 the Aboriginal title over the general territory was surrendered in exchange for reserve land, annuity payments, goods and the right to harvest the non-reserve lands surrendered by them until such time as they were “taken up” for settlement, mining, lumbering or other purposes by the government.

In 2011, the trial judge ruled that the province of Ontario lacked authority under Treaty 3 to take up lands so as to limit hunting and fishing rights under the Treaty and that the constitutional principle of inter-jurisdictional immunity meant that the government of Canada had exclusive authority to authorize infringements on Aboriginal rights. Accordingly, the judge ruled that taking up required a two-step process involving both the federal government and the province of Ontario. The Court of Appeal disagreed.

The Supreme Court of Canada confirmed that the province of Ontario has the exclusive constitutional authority to take up Crown lands under Treaty 3. The result followed from the provincial beneficial ownership of Crown lands in the province under section 109 of the Constitution Act, 1867 and the province’s exclusive authority to legislate with regard to the management and sale of public lands belonging to the province under section 92(5) and with regard to resources under section 92A. The Court held that the Treaty 3 promises were made by the Crown, and so both levels of government were responsible for fulfilling promises, acting within the division of powers under the Constitution Act, 1867.

The appellants had argued that Canada had a role in the taking up process because of the constitutional principle of inter-jurisdictional immunity and the exclusive authority of Canada to legislate in respect of Indians and lands reserved for Indians under section 91(24) of the Constitution Act, 1867. Consistent with its recent decision in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, the Court declined to apply the inter-jurisdictional immunity principle in an expansive manner. In the result, the applicability of provincial legislation that affects treaty rights through the taking up of land is determined by the principles of consultation outlined by the Court in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69.

While the appeal was pending, there was concern that if successful (and the trial judge's decision restored) similar actions would be brought respecting other numbered treaties in Ontario and across Canada. The restoration of the lower court decision would have created significant risk that challenges would be made to the validity of existing mining and timber leases and licences granted by Ontario, for which there could be significant fallout. By dismissing the appeal, the status quo is maintained. In Ontario, the Supreme Court's decision will provide more certainty to companies developing projects in western Ontario and in the important “Ring of Fire”.