Canada: SCC Affirms Ontario's Jurisdiction To "Take Up" Lands In Treaty 3

On July 11, 2014, the Supreme Court of Canada ("SCC") released its unanimous decision in Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48. The question before the SCC was whether the Province of Ontario or the Federal government had authority to "take up" lands in the Keewatin area under Treaty 3, which lands lay within the traditional territory.  

Facts

In 1873, the Dominion of Canada and Ojibway Chiefs signed Treaty 3, which covers approximately 55,000 square miles across Northwestern Ontario and Eastern Manitoba.

According to this treaty, the Ojibway yielded ownership over certain lands on their territory. In exchange, Grassy Narrows First Nation, descendents of the Ojibway, received the right to harvest the surrounding non-reserve lands until such time that the Dominion of Canada decides to take it up for "settlement, mining, lumbering, or other purposes".

Jurisdiction over the Keewatin lands was transferred from the Federal government to Ontario in 1912 through the Ontario Boundaries Extension Act.

In 1997, the Minister of Natural Resources for Ontario granted Abitibi-Consolidated, a large pulp and paper manufacturer, a forestry licence for its clear-cut forestry operations within the Keewatin area. As a result, the Grassy Narrows First Nation sought a declaration setting aside this licence.

Lower Court Decisions

At trial, Justice Sanderson declared that Ontario could not take up lands within the Keewatin area so as to limit treaty harvesting rights without first obtaining the Federal government's approval. The trial judge interpreted the treaty to mean that a two-step governmental process was required in obtaining approval with respect to taking up Treaty 3 lands. The trial judge also found that the doctrine of interjurisdictional immunity did not allow Ontario to infringe upon treaty rights.

On appeal, the court set aside the trial decision and determined that section 109 of the Constitution Act, 1867 and sections 92(5) and 92A of the Constitution Act, 1982 provides jurisdiction and exclusive power to Ontario with respect to natural resources.  

The Grassy Narrows First Nation appealed to the SCC.

SCC Decision

The issue before the SCC was "whether Ontario can take up lands in the Keewatin area under Treaty 3 so as to limit the harvesting rights under the treaty, or whether it needs.

The SCC found in favour of the Ontario. In its reasons, the SCC held that Ontario alone has the exclusive jurisdiction over the Treaty 3 lands for provincially regulated purposes:

...  By virtue of ss. 109, 92A and 92(5) of the Constitution Act, 1867, Ontario alone has the ability to take up Treaty 3 land and regulate it in accordance with the treaty and its obligations under s. 35 of the Constitution Act, 1982. A two-step process involving federal approval for provincial taking up was not contemplated by Treaty 3. (at para. 4).

The SCC cautioned, however, that the exercise of Ontario's exclusive jurisdiction is not limitless:

These duties mean that for land to be taken up under Treaty 3, the harvesting rights of the Ojibway over the land must be respected.  Any taking up of the land for forestry or other purposes must meet the conditions set out by this Court in Mikisew.  As explained in the Ontario Court of Appeal (at paras. 206 – 12), the Crown's right to take up lands under Treaty 3 is subject to its duty to consult and, if appropriate, accommodate First Nations' interests beforehand (Mikisew, at para. 56).  This duty is grounded in the honour of the Crown and binds the Province of Ontario in the exercise of the Crown's powers. In taking up the lands, Ontario must consult First Nations in a manner consistent with the honour of the Crown and fiduciary duties relating to Aboriginal interests. It must take into consideration the impact that any governmental decision or taking an action that may have on the Ojibway's treaty rights and to act in good faith when consulting with Aboriginal groups. Citing its earlier decision in Tsilhqot'in Nation v British Columbia, the SCC confirmed that if the "taking up" amounts to an infringement, Ontario will have to justify the infringement pursuant to the Sparrow/Badger analysis. 

Conclusion

The SCC in Grassy Narrows conclusively answered the question of provincial regulation on treaty lands.  In doing so, the SCC held that Treaty 3 was made with the Crown, not Canada.  As such, both levels of government are responsible within their respective areas of jurisdiction and control under the division of powers. However, the SCC warned that such jurisdiction and control is subject to constitutional limitations.  In respect of Canadian provinces' authority over lands and natural resources, the SCC ruled that such exercise of authority must be in keeping with the honour of the Crown and fiduciary duties relating to Aboriginal interests.

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