On March 18, 2013, the Ontario Court of Appeal confirmed that
Ontario has the right to "take up" Crown land for mining
and forestry without federal authorization. This ruling confirms
that in exercising its rights and powers as beneficial owner,
Ontario is not subject to federal consent when taking up Crown land
for resource projects. Nevertheless, Ontario is legally obliged to
ensure that its actions on behalf of the Crown are consistent with
the promises made by the Crown to First Nations.
In 2005, the Grassy Narrows First Nation commenced an action to
set aside approvals that Ontario had granted to
Abitibi-Consolidated Inc. to carry out forestry operations in the
Keewatin lands governed by Treaty 3. For various reasons, the trial
judge found that Ontario did not have the right to take up the
Keewatin lands within the boundaries of Treaty 3 without receiving
authorization from the federal government.
At issue in Keewatin v. Ontario (Natural Resources) was
whether Ontario had the right to take up the Keewatin lands and
thereby limit treaty harvesting rights without first obtaining the
federal government's approval. Treaty 3 covers an area of
approximately 88,000 square kilometres, located almost entirely in
Ontario, and contains a "harvesting clause" that retains
the First Nation right "to pursue their avocations of hunting
and fishing throughout the tract surrendered" except on tracts
"required or taken up for settlement, mining, lumbering or
other purposes by [the] Government of the Dominion of Canada."
Treaties 6, 7 and 8 each contain a similar harvesting clause and
several Treaty 6 First Nations were granted intervener status in
The Court found that the trial judge made "many
errors" and overturned the lower court decision, concluding
that Ontario does have the authority to take up all lands governed
by Treaty 3. By virtue of various sections in the
ConstitutionAct, 1867, provinces have beneficial ownership
of all land, including treaty land, within their borders, exclusive
jurisdiction to manage and sell public lands belonging to them and
additional powers with respect to non-renewable natural resources,
forestry resources and electrical energy. The combined result of
these provisions provides Ontario with the right to take up
provincial land and fulfill the Crown obligation to consult with
First Nations in accordance with Section 35 of the Constitution
Act, 1982, without any supervision or authorization from the
Significance for Resource Developers
This decision largely confirms that provinces have exclusive
jurisdiction to take up Crown land for natural resource development
and can fulfill the honour of the Crown and the duty to consult
without federal approval. The Court noted that, "leaving
meaningful constitutional space for the exercise of provincial
jurisdiction...without federal control ... fosters direct dialogue
between the province and Treaty 3 First Nations. Such
dialogue is key to achieving the goal of reconciliation."
Although a number of Treaty 6 First Nations intervened,
identifying similarities between Treaty 3 and Treaty 6 and making
submissions regarding the Natural Resources Transfer Agreements,
the Court declined to comment on those aspects because it was
unnecessary for the purposes of determining the appeal.
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