Canada: Ontario Can "Take Up" Lands Under Treaty 3 Without Seeking Federal Approval

Today, the Supreme Court of Canada (SCC) released its decision in the Keewatin case, confirming that Ontario can "take up" lands in Treaty 3, in northwestern Ontario, without requiring preapproval from the federal government. This decision confirms that the provinces retain jurisdiction, as defined in the Constitution, over land ceded to the Crown by treaty with First Nations. The court also took the opportunity to affirm the importance of consultation with First Nations concerning Crown decisions (such as permitting resource development) that could affect First Nations' exercise of treaty rights.

BACKGROUND

The Grassy Narrows First Nation (Grassy Narrows) is part of the Ojibway Nation located in Ontario.  Grassy Narrows is a party to Treaty 3, which provides that Grassy Narrows has certain fishing and trapping rights, subject to the government's right to permit land to be "taken up for settlement, mining, lumbering or other purposes."

In 2000, Grassy Narrows commenced legal proceedings against the Province of Ontario and Abitibi-Consolidated Inc. (Abitibi) after Ontario issued forestry licences to Abitibi in respect of the Keewatin portion of lands covered by Treaty 3 (the Keewatin Lands). Although the Keewatin Lands were located within federal territory when Treaty 3 was signed in 1873, these lands became part of Ontario in 1912. Grassy Narrows alleged that the forestry operations were approved by Ontario in violation of their hunting and fishing rights as set out in Treaty 3.

In 2010, the trial judge held that Ontario did not have authority to "take up" land in the Keewatin Lands so as to limit the hunting and fishing rights provided for in Treaty 3 without first obtaining Canada's approval. The trial judge further found that Ontario did not have authority pursuant to the division of powers under the Constitution Act, 1867 to infringe the harvesting rights provided for in Treaty 3 (see our September 2011 Blakes Bulletin: Land Not for the Taking: Court Limits Ontario's Rights on Treaty 3 Lands).

The Court of Appeal reversed the trial decision, holding that although Canada initially had authority to issue land authorizations in respect of the Keewatin Lands, such authority transferred to Ontario when the lands were added to the province in 1912. Accordingly, it was not necessary for Ontario to obtain Canada's approval before issuing a forestry permit even if it would substantially interfere with the Treaty 3 harvesting rights (see our March 2013 Blakes Bulletin: Ontario May "Take Up" Keewatin Lands and Issue Permits Without Canada's Permission).

SUPREME COURT OF CANADA DECISION

The SCC upheld the decision of the Court of Appeal, confirming that Ontario has authority to "take up" land under Treaty 3 for forestry and similar activities. The court held that Canada's constitutional provisions, the interpretation of Treaty 3 itself and legislation dealing with the Treaty 3 lands all support the conclusion that Ontario has authority to "take up" lands under Treaty 3; prior authorization from Canada is not required.

The court held that by signing Treaty 3, the "Ojibway yielded ownership of their territory, except for certain lands reserved to them." In return, the Ojibway received annuity payments, goods and the right to harvest the non-reserve lands until such time as those lands were "taken up" by the Crown.

The court emphasized that although Treaty 3 was negotiated by the federal government, it is an agreement between the Ojibway and the Crown. The level of government responsible for fulfilling the Crown's rights and obligations under Treaty 3 is determined by the division of powers set out in the Constitution. The Crown's obligations to First Nations, such as Grassy Narrows, are owed by both levels of government. Accordingly, references in Treaty 3 to "Her Said Government of the Dominion of Canada" simply reflect the level of government that had the beneficial interest in the Treaty 3 lands at the time the treaty was negotiated.

When the Keewatin Lands were added to Ontario in 1912, section 109 of the Constitution Act, 1867 became operative to provide Ontario with the beneficial interest in the Keewatin Lands and the resources on or under those lands. Sections 92(5) and 92A of the Constitution also provide exclusive jurisdiction to the provinces for the management of public lands and to make laws in relation to non-renewable natural resources, forestry resources and electrical energy.

The court rejected Grassy Narrows' argument that section 91(24) of the Constitution (which grants Canada exclusive jurisdiction over "Indians, and Lands reserved for Indians") creates a residual role for Canada in respect of the Treaty 3 lands. The court confirmed that provincial land use legislation can constitutionally affect treaty lands. This ruling is consistent with the SCC's recent decision in Tsilhqot'in Nation v. British Columbia (see June 2014 Blakes Bulletin: Supreme Court of Canada Releases Landmark Aboriginal Title Case).

Any taking up of land must respect the Ojibway harvesting rights provided for in Treaty 3. This means Ontario must comply with the duty to consult and, if appropriate, accommodate the First Nation's interests beforehand. Consultation "cannot exclude accommodation from the outset," meaning that the Crown (and proponents) must be willing to consider changes to their initial intentions, as a result of the consultation process. Further, if so much land is taken up that the Ojibway have no meaningful opportunity to exercise their harvesting rights, their treaty rights could be infringed. An action for infringement would be possible, subject to the Crown's establishment of justification under section 35 of the Constitution Act, 1982.

IMPLICATIONS

This decision confirms the validity of land authorizations issued by Ontario on Treaty 3 lands (subject to adequate consultation). It also resolves the question of whether it would be necessary for industry participants to go through a potentially cumbersome two-step process to obtain a land authorization.

This decision will likely not have an immediate impact outside of the Treaty 3 area since it was determined, in part, based on the unique historical context surrounding the Treaty 3 negotiations and the land transfers to Ontario that followed. However, two aspects of the decision are notable: first, the court took the opportunity to confirm (once again) the importance of consultation; and second, the court confirmed that the treaty involved the surrender by the Ojibway of their ownership of the land, an issue that has been raised in other litigation.

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.

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