Canada: Provincial Jurisdiction Confirmed Regarding Treaty Rights – Supreme Court Of Canada’s Keewatin Decision

In Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48 (Decision), also known as the Keewatin Decision, the Supreme Court of Canada (SCC) confirmed that provinces have the power to take up treaty lands for resource development projects and other purposes consistent with provincial jurisdiction. Where a province intends to take up treaty lands, it must consult with affected Aboriginal groups regarding the potential impact the project may have on the exercise of treaty rights, such as the rights to hunt, fish and trap. The Decision also confirms that provincial laws of general application apply to treaty lands, and that provincial governments can infringe treaty rights, where justified, all consistent with the SCC's June 2014 decision in Tsilhqot'in Nation.

The central question in the Decision was whether the Province of Ontario had the power to "take up" lands in the Keewatin area under Treaty 3 so as to limit the harvesting rights under the treaty, or whether it needed federal authorization to do so. The SCC unanimously dismissed the appeal and concluded that only Ontario has the power to take up lands under Treaty 3. This conclusion relied on the SCC's analysis of Canada's constitutional framework, the interpretation of Treaty 3 and its history, and the legislation dealing with Treaty 3 lands.

Brief Facts

Treaty 3 was signed in 1873 by treaty commissioners acting on behalf of the Dominion of Canada and Chiefs of the Ojibway. In exchange for their territory, the Ojibway received the right to harvest certain lands until such time as they were taken up for settlement, mining, lumbering or other purposes by the Government of the Dominion of Canada.

Treaty 3 territory covers approximately 55,000 square miles and includes the Keewatin area. In 1912, the Ontario Boundaries Extension Act extended Ontario's boundaries to include the Keewatin territory. Since that time, Ontario has issued licences for the development of these lands.

In 1997, Ontario issued a licence to a large pulp and paper manufacturer to carry out clear-cut forestry operations on Crown lands situated in the Keewatin area. The Grassy Narrows First Nation, descendents of the Ojibway signatories of Treaty 3, commenced an action in 2005 challenging the forestry licence on the basis that it violated their Treaty 3 harvesting rights.

The legal issue was whether Ontario can take up lands in the Keewatin area under Treaty 3, and limit harvesting rights, without federal authorization.

The trial judge held that the taking up of lands in the Keewatin area could only be done by a two-step procedure involving approval by both the federal and provincial governments. The Ontario Court of Appeal disagreed and allowed appeals of the trial judge's decision. The Court of Appeal found that Ontario's beneficial ownership of Crown lands within Ontario, combined with provincial jurisdiction over the management and sale of provincial public lands and the exclusive provincial power to make laws in relation to natural resources, provides Ontario with exclusive legislative authority to manage and sell lands within the Keewatin area.

The SCC upheld the Ontario Court of Appeal's decision and dismissed the appeal.

Decision

Although Treaty 3 was negotiated by the federal government, it is an agreement between the Ojibway and the Crown. The SCC concluded that both the federal and provincial government are responsible for fulfilling the treaty promises within their respective constitutional powers.

The SCC found that section 109 of the Constitution Act, 1867 gives Ontario the beneficial interest in the Keewatin lands and the resources on or under the lands. In addition, sections 92(5) and 92A give Ontario the power to take up lands in the Keewatin area under Treaty 3 for provincially regulated purposes, such as forestry. When the lands covered by Treaty 3 were determined to belong to Ontario, it became responsible for their governance with respect to matters falling under its jurisdiction, subject to the terms of the Treaty. Therefore, the SCC concluded that Ontario was not required to obtain federal approval prior to taking up the lands at issue under Treaty 3.

The SCC examined the words of the taking up clause and found that nothing in the text, or the well-documented history of the negotiation, contemplated a two-step process involving both levels of government. The right to take up land rests with the level of government that has jurisdiction under the Constitution. The Court noted that Ontario has exercised its power to take up lands for a period of over 100 years, without any objection by the Ojibway, which, while not determinative of the matters at issue, indicated that federal approval was never considered part of the Treaty.

The jurisdictional interpretation of the take up clause is consistent with the way subsequent governments dealt with the right to take up land under Treaty 3. The 1894 Agreement between Canada and Ontario expressly provided Ontario with the right to take up the lands by virtue of its control and beneficial ownership of the territory. Further, the 1912 transfer of lands confirmed that Ontario would stand in Canada's shoes with respect to the rights of the Indians in those lands. According to the SCC, the legislation did not constitute a transfer of Crown rights and obligations by Canada to Ontario, but a transfer of beneficial interest in the land. Having acquired the land, Ontario's constitutional power over lands within its boundaries entitled it to take up land, subject to the Crown's duties to Aboriginal peoples who had interests in the land.

Finally, the SCC indicated that Ontario's power to take up the Treaty 3 land is not unconditional. Any taking up of the land for forestry or other purposes must meet the conditions set out by the SCC in its 2005 decision of Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), including meeting the requirements of the Crown's duty to consult and, if appropriate, accommodate Aboriginal interests. If the taking up leaves the Ojibway with no meaningful right to hunt, fish or trap in relation to the territories over which they traditionally hunted, fished and trapped, a potential action for treaty infringement will arise. The SCC said "[w]hen a government —be it the federal or provincial government — exercises Crown power, the exercise of that power is burdened by the Crown obligations toward the Aboriginal people in question" (para 50).

Finally, the SCC confirmed that provinces can infringe treaty rights if the infringement can be justified under section 35 of the Constitution Act, 1982. The test for how the Crown can justifiably infringe was restated by the SCC in the context of Aboriginal title in its June 2014 decision of Tsilhqot'in Nation and focused on the government having a substantial and compelling legislative objective coupled with evidence that the government is minimally impairing the right and that the balancing of interests favours infringement.

Impacts for Resource Development

The Decision increases regulatory certainty for resource development occurring on lands subject to treaties between the Crown and Aboriginal groups. It confirms that provinces have the ability to take up lands for resource development projects within provincial jurisdiction. This gives provinces the tools to govern provincially regulated projects on treaty lands without the prior consent of the federal government.

The government is required to exercise Crown authority in conformity with the honour of the Crown when dealing with Aboriginal interests, including ensuring that the Crown's duty to consult is met. Where a province intends to take up lands for the purpose of a project within its jurisdiction, the Crown must inform itself of the impact the project will have on the exercise by First Nations of their rights to hunt, fish and trap, and communicate its findings to them. Such communication must be in good faith, and with the intention of addressing the First Nations' concerns. A potential action for treaty infringement will arise where government action leaves a First Nation with no meaningful right to hunt, fish or trap in relation to the territories over which its treaty applies and over which it has exercised these rights. This issue was recently addressed by the SCC in Tsilhqot'in regarding Aboriginal title, as discussed in our previous update Tsilhqot'in Decision: The Sky Is Not Falling.

Importantly, both the Decision and the SCC's earlier decision in Tsilqhot'in confirm that the SCC is balancing the constitutional protection afforded to Aboriginal and treaty rights with the ability of governments to govern and regulate the management of resources. What is clear from both decisions is that the ultimate burden of governing and balancing these interests does not rest with the courts, Aboriginal peoples or with industry, but rests fundamentally with the federal and provincial governments.

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