The Supreme Court of Canada has followed up its landmark Aboriginal law decision (Tsilhqot'in Nation v British Columbia, 2014 SCC 44 ("Tsilhqot'in")) with a decision that provides additional clarity on the obligations of governments, the nature of Aboriginal rights and the ability of provinces and private corporations to develop natural resource projects.
In Tsilhqot'in the Court granted title to a group of British Columbia First Nations, finding that Aboriginal title was not extinguished in areas not covered by treaty and that title can be recognized through the courts. That case is especially important in British Columbia, where the vast majority of the province is not covered by treaties and because the Court addressed procedural issues that are likely to have general application across the country for government and natural resource project proponents alike.
Only weeks later, the Court addressed the relationship between provincial governments and First Nations groups in parts of the country covered by treaty. The Court's decision in Grassy Narrows First Nation v. Ontario (Natural Resources) upholds the historic treaties signed between First Nations and the Crown, and endorses the role and responsibility of provincial governments dealing with natural resource developments on land covered by treaty.
This is an important decision for three reasons. First, it upholds, describes and confirms the treaty relationship between the Crown and First Nations people. This is important because (unlike British Columbia) the majority of the country, including all of the Prairie provinces are covered by the so-called history numbered treaties that set out the terms on which First Nations people surrendered their land claims to the Crown in the 19th and 20th centuries. The Court's decision also affirms the importance of these treaties both for the responsibilities of the Crown to First Nations people as well as the Crown's ability to take up and use the land, subject to these responsibilities. Second, this decision specifically confirms the ability of provincial governments to take up and manage land to develop natural resource projects. Third, this decision explains and outlines the limits on the provinces ability to take up land, subject to their fiduciary obligations to First Nations people. Ultimately, this decision may not be as precedent setting as the recognition of Aboriginal title in British Columbia, but because this decision recognizes the roles, responsibilities and abilities of provinces to develop natural resources on land covered by treaties (subject to fiduciary obligations), this decision effectively upholds our current understanding of natural resource law across the country, including Saskatchewan and the other Prairie provinces. It also serves to highlight exactly how different things are in the parts of British Columbia not covered by treaty.
In the Grassy Narrows First Nation decision, the Court clearly identified Sections 109, 92 and 92A of the Constitution Act, 1867 as giving power to the provinces to take up Crown land under treaty for provincially-regulated purposes (in this case, forestry), including natural resources development. While the Court found that provinces have clear constitutional authority to take up lands, this authority is not unlimited. In exercising its jurisdiction over treaty lands, provinces are bound by the duties attendant on the Crown, which must be exercised in conformity with the honour of the Crown and subject to the fiduciary duty on the Crown in dealing with First Nations interests.
Saskatchewan, which is wholly covered by the numbered treaties, is directly impacted by this decision. While the Province of Saskatchewan has long exercised authority over its natural resources and natural resource projects, this decision confirms and upholds this power and authority. While it is unlikely that there will be any immediate impact in Saskatchewan or the areas of natural resource or Aboriginal law, this decision provides important certainty on these areas of law in provinces covered by treaties and organizes and expands the law around taking up land, the fiduciary obligations of the provincial Crown and the substantive nature of Aboriginal treaty rights.
Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48
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