Canada: Supreme Court Clarifies Provincial Aboriginal Consultation Responsibilities When Issuing Resource Permits In "Keewatin" And Applies "Tsilqot’in" Infringement Test

The Supreme Court of Canada's recent decision in Grassy Narrows First Nation v Ontario (Natural Resources) (also known as "Keewatin") underscores once again the Crown's duty to consult. It asserts the need for provinces and territories to consult early with Aboriginal communities and not wait for a resource project proponent to reach a deal with the community. The Supreme Court's decision, released on July 11, 2014, also dealt with infringement of treaty rights – and specifically the Grassy Narrows First Nation and Wabauskang First Nation's harvesting rights under Treaty 3. The Supreme Court applied the test used by the Court in its June 26 decision in Roger William (on behalf of the Tsilhqot'in Nation) v BC.


Treaty 3 and the Keewatin Lands

When Canada was expanding westward and settlers traveled along a route through Northwestern Ontario and Eastern Manitoba, it sought to ensure safe travels through Ojibway lands. In 1873, Treaty 3 was negotiated between the Chiefs of the Ojibway and the Dominion of Canada.

The Ojibway yielded ownership (according to Canada) or negotiated land sharing (according to the Ojibway) of the Treaty 3 territory to Canada in return for reserve lands, annuities and goods. The Ojibway retained harvesting rights on non-reserve land within the Treaty area until the land was "taken up" for settlement, mining, lumbering, or other purposes by the Government of the Dominion of Canada or any of its duly authorized subjects.

Treaty 3 territory covers a large portion of Northwestern Ontario and Eastern Manitoba, known as the Keewatin lands. At the time the Treaty was signed, the Keewatin lands were under the jurisdiction of the Government of Canada. Since 1912, these lands, except for a small area in Manitoba, have been part of Ontario.

The Grassy Narrows First Nation (Grassy Narrows) is located within the Keewatin lands. Wabauskang First Nation (Wabauskang) also has traditional territory within the Keewatin lands.

Litigation Respecting the Abitibi/Resolute Forestry Operations Licence

In 1997, the Ontario Minister of Natural Resources (MNR) issued a licence to Abitibi-Consolidated Inc., now Resolute FP Canada Inc. (Resolute), to carry out forestry operations on Crown lands within the Keewatin lands. In 2005, Grassy Narrows commenced litigation against the provincial and federal governments and Resolute alleging that the licence violated their Treaty 3 harvesting rights (Keewatin).

Grassy Narrows argued that, absent federal authorisation, Ontario could not "take up" lands (i.e., issue permits) within the Keewatin lands under Treaty 3 so as to limit the harvesting rights protected under the Treaty. Grassy Narrows also argued that Ontario did not have the authority to infringe the Grassy Narrows' treaty rights under the Constitution Act, 1867 (Constitution).

Lower Court Decisions and the Two-Step Process

The trial judge agreed with Grassy Narrows that Ontario could not take up lands within the Keewatin lands without first obtaining federal government approval. Further, the trial judge found that the doctrine of interjurisdictional immunity allowed only the federal government, not the provinces, to infringe treaty rights. This became known as the two-step process.

The Ontario Court of Appeal rejected the two-step process set up by the trial judge (see "Landmark Keewatin Ruling Overturned"). Federal approval was not required prior to issuing provincial permits. The Court did not consider whether interjurisdictional immunity prevented provincial infringement on treaty rights.

Grassy Narrows and Wabauskang appealed to the Supreme Court of Canada (SCC).

The Supreme Court of Canada Decision

Two-Step Process Rejected

The SCC unanimously upheld the Court of Appeal decision, rejecting the two-step process and concluding that, "Ontario and Ontario alone has the power to take up lands under Treaty 3". However, the SCC determined that the power to take up lands is not unconditional and that the Province is bound by the duties attendant on the Crown.

Ontario's authority to take up the lands is derived from both agreements and constitutional provisions. The division of powers set out in the Constitution determines the respective powers and obligations of the federal and provincial levels of government. When Ontario's borders were expanded to include the Keewatin lands, Ontario also became responsible for the promises made between the Crown and the Ojibway under Treaty 3 when acting within its constitutional powers.

Relying on Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, and subsequent decisions, the SCC reiterated that both provincial and federal governments are responsible for fulfilling the promises and satisfying the honour of the Crown.

The appellants argued that the federal government has jurisdiction over "Indians, and Lands reserved for the Indians" under section 91(24) of the Constitution and therefore has the authority to approve the taking up of provincial land. Rejecting this view, the SCC referred to Mikisew Cree First Nation v Canada (Minister of Canada Heritage), 2005 SCC 69. The SCC stated that, although section 91(24) allows the federal government to enact legislation dealing with Indians and reserves that may have some incidental effects on provincial land, it does not allow the federal government to approve taking up land for provincial purposes.

The SCC also noted that Ontario has been exercising its power to take up lands through permits and authorisations on Crown lands for over 100 years without any objection. The SCC stated that this suggests that federal approval is not a necessary element of taking up lands under Treaty 3.

Limits on the Power To Take up Land

The SCC stated that, when taking up lands under Treaty 3, Ontario must "exercise its powers in conformity with the honour of the Crown and the exercise of those powers is subject to the fiduciary duties that lie on the Crown in dealing with Aboriginal interests" .

Therefore, prior to issuing permits and authorizations, Ontario must respect Ojibway Treaty harvesting rights under Treaty 3.

Ontario must also fulfill its duty to consult and accommodate. Potential impacts on Treaty rights are considered an infringement. Any permit or legislation infringing Treaty rights must be justified, as set out by the SCC on June 26, 2014 in Roger William (on behalf of the Tsilhqot'in Nation) v British Columbia, 2014 SCC 44 (Roger William/Tsilhqot'in) (see "Supreme Court of Canada Grants Tsilhqot'in Aboriginal Title in William").

In Roger William/Tsilhqot'in, the SCC determined that infringement may be justified if the Crown can establish a "compelling and substantial" objective consistent with its fiduciary duty owed to the Aboriginal group and has consulted the Aboriginal group. Of significance was the SCC's assertion that the "compelling and substantial objective" must be considered from both Aboriginal and public perspectives. In addition, such an objective must further the goal of reconciliation with Aboriginal groups.

As in Roger William/Tsilhqot'in, the SCC determined in Keewatin that the interjurisdictional immunity argument did not apply. Moreover, it found that the doctrine of interjurisdictional immunity in no way precludes Ontario from applying the infringement test prior to issuing permits and authorisations.

Significance of Keewatin

Impacts on Provinces and Territories

Together with the Roger William/Tsilhqot'in case, the SCC's decision in Keewatin sets significant sign posts for provinces and territories moving forward.

Provinces and territories may need to step up consultation activity rather than relying on proponents to make deals with Aboriginal people. Prior to issuing permits and authorizations which have the potential to infringe rights, they must meaningfully consult with Aboriginal people on potential impacts on their rights. Provinces and territories must also meet their fiduciary duty and uphold the honour of the Crown in their relationships with Aboriginal people. This is not necessarily the "burden" that some commentators have described. It results from the unique relationship between Aboriginal people and the Crown. It arises from treaties signed by early Canadians when they asserted sovereignty over lands where Aboriginal people had already been living and exercising sovereignty. The treaties are no less important than the Constitution in defining Canada.

The SCC in Keewatin also stated

Not every taking up will constitute an infringement of the harvesting rights set out in Treaty 3. This said, 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 (Mikisew, at para. 48).

What remains unclear is how to interpret an infringement in terms of a "meaningful right to hunt, fish or trap". No doubt this will be the subject of future litigation.

Impacts on Proponents

Where does this leave proponents? It is more important than ever that proponents engage early with Aboriginal people in partnerships and when seeking consent for activities that could impact Aboriginal or Treaty rights. These activities provide the greatest certainty to move important resource projects forward. While provinces and territories may delegate some procedural aspects of consultation, they should be taking a leading role in defining their expectations for meaningful consultation.

Julia Paillé, Summer Law Student, assisted with the preparation of this article.

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.

Julie Abouchar
Charles Birchall
John J.P. Donihee
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
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
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 (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

To Use 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.


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.


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