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

Last Updated: April 23 2013
Article by Stephanie Axmann and Thomas Isaac

Most Read Contributor in Canada, September 2018

Introduction

On March 18, 2013, the Court of Appeal for Ontario (ONCA) issued its highly anticipated reasons in Keewatin v. Ontario (Natural Resources),1 unanimously allowing the appeals of Resolute FP Canada Inc. and the governments of Ontario and Canada. The decision clears up considerable uncertainty that resulted from the lower court decision (2011 ONSC 4801), which suggested that Ontario did not possess jurisdiction to "take up" lands in the Keewatin area of Ontario without prior authorization of the federal government, based on the trial judge's interpretation of a "harvesting clause" in Treaty 3. The ONCA confirmed that valid provincial laws over forestry, mining and other matters continue to apply in Treaty 3 territory in Ontario and are entirely consistent with the terms of Treaty 3.

Background

Treaty 3 was entered into in 1873 between Canada and the Saulteaux Tribe of the Ojibway Indians (Ojibway) in respect of lands in what is now northwestern Ontario and eastern Manitoba. The Ojibway surrendered their interest in the lands in exchange for certain benefits, including rights to hunt and fish, except on tracts "required or taken up for settlement, mining, lumbering or other purposes by [the] Government of the Dominion of Canada" (Harvesting Rights). The pertinent clause stated:

Her Majesty further agrees with Her said Indians, that they, the said Indians, shall have [the] right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada, and saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government. [emphasis added] (Harvesting Clause)

The plaintiffs were members of the Grassy Narrows First Nation, descendants of the Treaty signatories. They applied for judicial review of a decision by Ontario's Minister of Natural Resources (Ontario) to issue a licence for clear-cut forestry activities to Resolute FP Canada Inc. (then Abitibi-Consolidated Inc.), alleging that the licence violated the Harvesting Clause. Two questions were put before the trial judge:

1. whether Ontario has authority to "take up" lands for forestry, within the meaning of the Harvesting Clause, so as to limit the Harvesting Rights (Question One); and

2. if the answer to Question 1 is "no," whether Ontario has the authority, pursuant to the constitutional division of powers between Parliament and the legislatures, to justifiably infringe the Plaintiffs' Harvesting Rights (Question Two).

The trial judge answered "no" to both questions. In respect of Question One, she concluded that the Harvesting Clause had the effect of imposing a two-step process requiring the authorization of Canada in order for Ontario to "take up" lands throughout the Treaty 3 area. She also concluded that Canada's jurisdiction over "Indians, and Lands Reserved for the Indians" under s. 91(24) of the Constitution Act, 1867 gave Canada a residual right to authorize Ontario's taking up of its own lands. In respect of Question Two, the trial judge held that Ontario could not justifiably "infringe" the Harvesting Rights, which she determined were within federal jurisdiction under s. 91(24).

The Decision

The ONCA overturned the lower court's decision and answered "yes" to Question One, concluding that Ontario can avail itself of the "taking up" powers under Treaty 3, so as to limit the Plaintiffs' Harvesting Rights, without authorization from the federal government. Having answered Question One in the affirmative, the ONCA held that it did not need to answer Question Two. The ONCA concluded that the trial judge erred in both law and fact in interpreting the Harvesting Clause and its effect by failing to apply governing constitutional law principles and by misapplying the facts.

1. Interpretation of the Harvesting Clause within the constitutional framework

The ONCA stated that the Harvesting Clause must be interpreted within the proper constitutional framework, including the divided legislative authority between Canada and the provinces set out in the Constitution Act, 1867. Canada has exclusive legislative jurisdiction over "Indians, and Lands reserved for the Indians" under s. 91(24), while s. 109 gives beneficial ownership to Ontario of Crown lands within Ontario, subject to any trust or other interest in those lands (including existing aboriginal interests); s. 92(5) gives Ontario exclusive legislative jurisdiction to manage and sell public lands and the timber and wood thereon; and s. 92A grants further legislative powers to Ontario in respect of non-renewable natural resources, forestry resources and electrical energy.2

The ONCA held that the trial judge's suggestion that the Treaty 3 Commissioners could limit Ontario's constitutional rights and responsibilities by requiring that Canada approve Ontario's "taking up" of lands is "fundamentally at odds with this established constitutional framework and cannot be sustained."3 The Court emphasized the internal limitations of the Treaty:

The Ojibway's Treaty partner is the Crown, not Canada. Canada is not a party to the Treaty. The Treaty promises are made by the Crown, not by a particular level of government. The Ojibway may look to the Crown to keep the Treaty promises, but they must do so within the framework of the division of powers under the constitution. As was specifically held in St. Catherine's Milling, Canada, Morris and the other Commissioners who negotiated the Treaty had no authority to depart from the constitution's allocation of powers and responsibilities and no power to deprive Ontario of the beneficial ownership that developed to the province when Ontario's borders were expanded.4 [emphasis added]

The ONCA considered St. Catherine's Milling and Lumber Company,5 an 1888 decision in which the Privy Council held that Treaty 3 was made between the Ojibway and the Crown, not Canada. The Privy Council held that the Treaty 3 Commissioners had "neither authority nor power to take away from Ontario the interest which had been assigned to" it by s. 109. Once the beneficial interest in the lands passed to Ontario at Confederation, Canada lost the right to "take up" the lands. Further, Canada's jurisdiction to legislate in relation to "Indians, and Lands Reserved for the Indians" under s. 91(24) was "not in the least degree inconsistent" with Ontario's right to manage and benefit from the lands. In Smith v. Canada, the Supreme Court of Canada (SCC) affirmed that Ontario has complete beneficial ownership of its lands under s. 109 "without further burden by reason of s. 91(24)."6

2. Principle of constitutional evolution

The ONCA held that the trial judge also failed to apply the principle of constitutional evolution in interpreting the Harvesting Clause. This principle means that the Crown's allocation of legislative and administrative powers and responsibilities to different levels of government may change over time. Treaties with First Nations are solemn agreements that are intended to last indefinitely, therefore they "must be capable of adapting to the natural evolution of the constitution, which evolves as a 'living tree,' in order to meet 'the changing political and cultural realities of Canadian society.'"7

The ONCA reiterated that the promise made in the Harvesting Clause to the Ojibway was that of the Crown, not Canada. When Ontario became beneficial owner of the Keewatin Lands by virtue of the 1912 Legislation and s. 109, by operation of law, both the benefit and the burden of the Harvesting Clause was assigned by the Crown to Ontario.8

3. Text of the Harvesting Clause

The ONCA held that the text of the Harvesting Clause did not reflect or contemplate a two-step approval for taking up land involving two levels of government. The reference to the "Government of the Dominion of Canada" in the Harvesting Clause reflects that in 1873, when the Treaty was signed, the Keewatin lands were Canada's. However, when beneficial ownership of the lands transferred to Ontario, Ontario took the place of Canada as the level of government with the capacity to take up lands, subject to the Harvesting Rights.

The ONCA also found the trial judge's imposition of a two-step approval process problematic and unnecessary in order to protect the interests of the Ojibway:

Finally, the trial judge's interpretation produces a process that is unnecessary, complicated, awkward and likely unworkable. The two-step process is unnecessary to protect the Aboriginal Treaty harvesting right because when the Crown, through Ontario, takes up land, it must respect the Treaty right. When Ontario stepped into Canada's shoes by virtue of the process of constitutional evolution, the legal standard that binds the Crown did not change and the Treaty right is fully protected. To require both levels of government to be engaged in a two-step process is, on its face, complicated and awkward. It is difficult to see how the process of consultation, which is required when the Treaty harvesting right is affected by taking up, would be improved by involving both levels of government.9

The ONCA commented that a two-step approval process could also undermine the goal of reconciliation:

The trial judge's conclusion that Canada retains a role in Ontario's use of the taking up provision could undermine, rather than advance, reconciliation. Leaving meaningful constitutional space for the exercise of provincial jurisdiction under ss. 109, 92(5) and 92A, without federal control under s. 91(24), fosters direct dialogue between the province and Treaty 3 First Nations. Such dialogue is key to achieving the goal of reconciliation.10

4. Historical evidence regarding the Harvesting Clause

The ONCA further held that the facts did not support the trial judge's thesis that the Treaty Commissioners intentionally drafted the Harvesting Clause to require Canada's approval for Ontario to take up lands. Nothing in the evidence supported this finding. Further, the 1891 legislation, 1894 provisional boundary agreement and 1912 legislation simply confirmed that the Keewatin lands belonged to Ontario, and Ontario did not need Canada's permission to take up lands that it beneficially owned. Once the Keewatin lands became part of Ontario in 1912, Ontario stepped into the shoes of Canada for the purposes of the Harvesting Clause, and the Crown's rights and obligations devolved to Ontario.

5. Relationship between S. 91(24) and Ontario's taking up

The trial judge concluded that as a result of Canada's s. 91(24) federal jurisdiction over "Indians," Canada also had a residual and continuing role in respect of Ontario's taking up under the Harvesting Clause. However, the ONCA held that the Harvesting Clause, short of infringement, does not engage s. 91(24) and that the trial judge erred in three ways.

First, she erred with respect to the constitutional division of powers. Such an expansion of federal jurisdiction would "render illusory provincial jurisdiction over the disposition and management of public lands and forests under ss. 109, 92(5) and 92A."11 Second, her conclusion could not be reconciled with St. Catherine's Milling and Smith. It would also be contrary to the SCC's emphasis on balanced federalism and that "a federal head of power cannot be given a scope that would eviscerate a provincial legislative competence."12 Third, her finding was inconsistent with the SCC's decision in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage).13

In respect of Mikisew, the ONCA noted the important distinction between a provincial taking up that would leave no meaningful harvesting right in a First Nation's traditional territories from a taking up that would have a lesser impact. The former would infringe the First Nations' treaty rights, whereas the latter would not. Mikisew is clear that where it is claimed that a taking up will infringe a treaty right, the remedy is to bring an action against the province for treaty infringement. An action for infringement does not engage Canada in a supervisory role by virtue of s. 91(24).

6. Constitutional safeguards for First Nations

The ONCA held that significant protections are already in place for aboriginal peoples, without placing Canada in a supervisory role over Ontario. These protections are grounded in the principle of the honour of the Crown and s. 35 of the Consititution Act, 1982, including the Crown's duty to consult. The ONCA noted that Ontario must recognize the rights of First Nations in the Keewatin lands to the same extent that Canada did prior to 1912. In exercising its rights to take up lands, Ontario must uphold the honour of the Crown, consult with First Nations and accommodate treaty rights as appropriate, whenever they are sufficiently impacted.

7. Question Two

Having answered "yes" to Question One," the ONCA declined to answer Question Two. However, the ONCA noted "that nothing in these reasons should be construed as approval of the trial judge's reasoning or result in respect of the second threshold issue."14

The ONCA's reasons in answering Question One shed some light on how it might have answered Question Two. The ONCA pointed out the important distinction between a limit on treaty rights and an infringement on treaty rights; that only the latter requires justification within the framework set down by the SCC in R. v. Sparrow.15 The ONCA pointed out that in Mikisew, the SCC was clear that not every taking up constitutes an infringement of treaty rights that must be justified according to Sparrow. Put another way, the taking up provision operates as a limit on the Harvesting Rights, not an extinguishment of such rights.16

These observations support our view that Question Two was not properly framed for the trial judge. Question Two only addresses an infringement of treaty rights and therefore it presupposes that Ontario had infringed the Harvesting Rights simply by taking up lands. However, Question Two does not allow for the fact that the province may impose limits on treaty rights without constituting an infringement of treaty rights or intruding on s. 91(24).

In our view, Question Two as it was framed for the trial judge is already settled law. The SCC in R. v. Morris17 and in earlier cases has provided a full answer to the issue. The SCC has confirmed that provinces cannot "infringe" aboriginal or treaty rights, because the term, "infringement" means to exceed provincial jurisdiction and impose on federal jurisdiction over "Indians and Lands Reserved for the Indians" under s. 91(24). Any "infringement" of the core of federal jurisdiction is ultra vires the province, and provinces cannot rely on the Sparrow justification analysis for infringement of a treaty right. However, this does not mean that provinces cannot otherwise limit aboriginal or treaty rights up to the point of infringement. In our view, Morris provides a complete analysis for determining the distinction between a limit and an infringement.

Discussion

In our view, the ONCA's decision confirms and clarifies the state of the law as it has existed since Treaty 3 was signed; it does not create new law. The ONCA was clear that that the terms of Treaty 3 continue to apply with Ontario as beneficial owner of the Keewatin lands, and that the First Nation signatories to Treaty 3 continue to enjoy the Harvesting Rights on the Keewatin lands. The Harvesting Rights are subject to "taking up" from time to time by the Crown (in this case, Ontario), provided that the Crown upholds the honour of the Crown and fulfils its duty to consult with potentially affected aboriginal peoples. The ONCA also noted that there had been no challenge to Ontario's rights to take up the lands until this case arose.

Note

McCarthy Tétrault LLP was co-counsel with Cassels Brock in this appeal, acting for the intervener, Goldcorp Inc.

Footnotes

1 2013 ONCA 158 (Keewatin).
2 Keewatin, at 103 – 111.
3 Ibid., at 134.
4 Ibid., at 135.
5 (1888), 14 A.C. 46 (St. Catherine's Milling).
6 [1983] 1 S.C.R. 554 (Smith) at p. 562, cited in Keewatin, at 130.
7 Keewatin, at 137.
8 Ibid., at 140.
9 Ibid., at 153.
10 Ibid., at 154.
11 Ibid., at 205.
12 Reference Re Securities Act, 2011 SCC 66, cited in Keewatin, at 205.
13 2005 SCC 69 (Mikisew).
14 Keewatin, at 215.
15 [1990] 1 S.C.R. 1075 (Sparrow).
16 1bid., at 226.
17 2006 SCC 59 (Morris).

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
Olthuis Kleer Townshend
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Olthuis Kleer Townshend
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions