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.


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

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.