Canada: Keewatin v Ontario: Court of Appeal Affirms Ontario’s Unilateral Ability To Take Up Treaty Lands

Background to the appeal

On March 18, 2013, the Court of Appeal released its highly anticipated decision in Keewatin v Ontario (Minister of Natural Resources).1 Keewatin involved a challenge by Grassy Narrows First Nation to the decision of Ontario's Minister of Natural Resources to issue a sustainable forest license to Abitibi-Consolidated Inc. The license allowed Abitibi to carry out clear-cut forestry operations in certain parts of Whiskey Jack Forest, which falls within the Keewatin portion of Treaty 3 territory (the Keewatin Lands).

Treaty 3 was entered into on October 3, 1873, between Canada and the Saulteaux Tribe of the Ojibway Indians in respect of a large tract of land situated in what is now northwestern Ontario and eastern Manitoba. Pursuant to the treaty, the Ojibway surrendered their interest in the lands in exchange for reserves, payments, and other benefits. At issue in Keewatin was a harvesting clause in the treaty, by which the Ojibway retained the right to hunt and fish throughout the surrendered lands, except on those tracts "required or taken up for the settlement, mining, lumbering or other purposes by [the] Government of the Dominion of Canada." Grassy Narrows asserted that the license grant to Abitibi violated this harvesting right.

The appeal focused on whether Ontario had the right to take up the lands in question, thus limiting the Ojibway's harvesting rights, without Canada's approval. The trial judge, following an exhaustive examination of the historical context, legislative framework and treaty law, had held that Ontario did not have the right to take up lands under the treaty, and could issue authorizations under section 109 of Constitution Act, 18672 only so long as those authorizations did not substantially interfere with harvesting rights. The trial judge held that to authorize uses that interfered with harvesting rights required the approval of the federal government, with whom Treaty 3 was made and to whom the "taking up" authority was expressly granted, a holding consistent with Canada's jurisdiction under subsection 91(24) of the Constitution Act over "Indians, and Lands reserved for Indians."

Constitutional evolution and Crown responsibility

A unanimous Court of Appeal disagreed with the trial judge's conclusion, allowing the appeal. Central to this disposition were a number of key findings. First, the Court of Appeal emphasized that the Ojibway's treaty partner is the Crown, not any particular level of government: "Responsibility for respecting the Crown's promises falls to be determined by the allocation of power under the constitution and the location of that responsibility evolves as the constitution evolves."

That the harvesting clause referenced the Dominion of Canada is simply reflective of Canada's beneficial ownership of the Treaty 3 lands in 1873. Employing the doctrine of "constitutional evolution," the Court of Appeal held that beneficial ownership of those lands had devolved to Ontario, together with the full power to take up lands and obligation to ensure that its actions on behalf of the Crown are consistent with the Crown's treaty obligations. This "taking up" power is derived from the Constitution, not the treaty.

Text of harvesting clause

Second, the Court of Appeal disagreed with the trial judge's interpretation of the treaty itself, which imposed a two-step federal and provincial approval process to taking up treaty lands. The Court of Appeal criticized this approach as cumbersome and unnecessary to protect the harvesting right. The Court of Appeal held that "[i]t is difficult to see how the process of consultation, which is required when the treaty and harvesting right is affected by taking up, would be improved by involving both levels of government" – a sensible conclusion given that the duty to consult residing with the Crown should not vary by level of government discharging the duty on behalf of the Crown. The Court of Appeal also suggested that parallel consultation by the federal government might detract from a direct dialogue between the province and Treaty 3 First Nations, which is "key to achieving the goal of reconciliation."

Application of subsection 91(24)

A third key, and perhaps most consequential, issue was the trial judge's holding that Canada's subsection 91(24) jurisdiction over "Indians" gives it a residual and continuing role in respect of Ontario's use of the "taking up" provision. The Court of Appeal found the trial judge's interpretation to be irreconcilable with binding case law. The Court of Appeal held that to expand subsection 91(24) to include a supervisory power over taking up of treaty lands would render illusory provincial jurisdiction over the disposition of management of public lands and forests within the province,3 clearly contrary to the decisions of the Privy Council and the Supreme Court of Canada in St. Catherine's Milling4 and Smith,5 respectively.

Taking up and the duty to consult

The Court of Appeal also drew a distinction, drawing on the Supreme Court's decision in Mikisew,6 between taking up that leaves no meaningful harvesting right in a First Nation's traditional territories, from a taking up with a lesser impact. The former, it held, would infringe a First Nation's treaty rights, grounding an action for treaty infringement, whereas the latter would not. The Court of Appeal further noted that an action for infringement would not engage Canada in a supervisory role. Such an action would be brought against the infringing party directly (in this case, Ontario).

Given that the adequacy of consultation was not a dispositive issue on appeal, the Court of Appeal gave it little attention, merely noting, in obiter, that Ontario cannot take up lands so as to deprive signatory First Nations of a meaningful right to harvest in their traditional lands,7 and further that "honourable management" – likely a variation of the Crown's duty to act honourably in its dealings with First Nations – requires that Ontario, as the government with authority to take up the Keewatin Lands, must consult with First Nations prior to take up, and accommodate their treaty rights where necessary.


The Keewatin decision results in a more workable framework for taking up treaty lands, requiring only one level of government to step into the shoes of the Crown and carry out its treaty responsibilities. In respect of Treaty 3, this responsibility ultimately devolved to Ontario when the treaty lands were ceded to the province. The decision preserves the right of the provinces to manage their public lands, consequently confining the federal head of power over "Indians and lands reserved for Indians."


1 Keewatin v Ontario (Natural Resources), 2013 ONCA 158 (Keewatin).

2 Constitution Act, 1867 (UK), 30 & 31 Victoria, c .3 (the Constitution Act). Section 109 gives Ontario beneficial ownership of Crown lands within the borders of Ontario, subject to any trust or other interest in those lands, including existing Aboriginal interests.

3 Section 92(5) of the Constitution Act gives Ontario the exclusive jurisdiction to manage and sell public lands belonging to the province. Additional powers with respect to non-renewable natural resources, forestry resources and electrical energy are conferred on the provinces by section 92A.

4 St. Catherine's Milling and Lumber Co. v The Queen (1888), 14 A.C. 46, aff'g [1887] 13 S.C.R. 577, aff'g (1866), 13 O.A.R. 148 (C.A.), aff'g (1885), 10 O.R. 196 (Ch. Div.).

5 Smith v Canada, [1983] 1 S.C.R. 554.

6 Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R 388.

7 This comment is consistent with the Mikisew decision.

Norton Rose Group

Norton Rose Group is a leading international legal practice. We offer a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

Knowing how our clients' businesses work and understanding what drives their industries is fundamental to us. Our lawyers share industry knowledge and sector expertise across borders, enabling us to support our clients anywhere in the world. We are strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.

We have more than 2900 lawyers operating from 43 offices in Abu Dhabi, Almaty, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Bogotá, Brisbane, Brussels, Calgary, Canberra, Cape Town, Caracas, Casablanca, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.

Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose Canada LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.

On January 1, 2012, Macleod Dixon joined Norton Rose Group adding strength and depth in Canada, Latin America and around the world. For more information please visit

Norton Rose will join forces with Fulbright & Jaworski L.L.P on June 1, 2013, creating Norton Rose Fulbright a global legal practice with significant depth of expertise across the USA, Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.