The Supreme Court of Canada released its decision today in the Grassy Narrows/Keewatin case. In it, the Supreme Court has ruled that the province of Ontario has both the rights and the burdens of Treaty 3, including in particular the right to "take up" lands under the treaty, so long as consultation and accommodation occurs and treaty-protected rights to hunt, fish and trap are preserved. Contrary to the argument advanced on behalf of the First Nations, Canada's consent was not required before land could be "taken up" for development purposes.
The Court in a unanimous decision affirmed the decision of the Ontario Court of Appeal and found that Ontario has the power to take up the lands under Treaty 3 based on Canada's constitutional process, the interpretation of Treaty 3 and the legislation dealing with Treaty 3 lands. While the Court's decision is based in part on the specific facts related to Treaty 3, the Court's comments and guidance will have broad application to many other circumstances. In particular, the Court has underscored that both the federal government and provinces share in both the rights and the burdens of treaty obligations toward Aboriginal peoples.
BACKGROUND AND PROCEDURAL HISTORY
In 1873, certain Anishinaabe Nations negotiated and signed Treaty 3 in relation to an area of approximately 55,000 square miles located within what is now northwestern Ontario and southeastern Manitoba. The text of Treaty 3 contains a "harvesting clause" which provides for a right to harvest resources throughout Treaty 3 territory, subject to the right of the "Government of the Dominion of Canada" to "take up" lands for "settlement, mining, lumbering or other purposes."
At the time Treaty 3 was signed, and for a number of years afterwards, a portion of Treaty 3 territory was subject to a boundary dispute between Ontario and Canada. Other portions – called the Keewatin lands – were not subject to dispute but were under the control of the federal government. The boundary dispute was resolved in Ontario's favour, and Canada also later agreed to extend Ontario's boundaries to include the Keewatin lands as well, in 1912. Thereafter, the majority of Treaty 3 territory fell within Ontario's borders.
In 2005, the Grassy Narrows First Nation started an action against Ontario and the holder of a permit to clear-cut timber in the Keewatin lands. Grassy Narrows alleged that the forestry operations infringed its hunting and fishing rights under Treaty 3 and that only Canada (i.e. the federal government), not Ontario, had the jurisdiction to do so, and that Ontario required Canada's consent.
The Decision of the Ontario Superior Court
At trial, the Court considered whether Ontario had the authority to "take up" tracts of land for forestry so as to limit harvesting rights. The Court concluded that the harvesting clause was intentionally tailored by Canada's treaty commissioners to ensure a protective role continued between Canada and the Anishinaabe Nations of Treaty 3.
The trial judge also found that this demonstrated an intent for the rights of the Anishinaabe Nations under the harvesting clause to not be significantly interfered without the authorization of Canada. To the extent any authorizations issued by Ontario infringed rights contained within the harvesting clause, the trial judge reasoned, Grassy Narrows was correct that the consent of Canada was required. Taking up of land required a "two-step" process of approvals from both Ontario and Canada.
The trial judge also ruled that Ontario does not have the constitutional authority to infringe Treaty 3, under the constitutional division of powers; only Canada could do so, and only if the infringement could be justified.
The Decision of the Ontario Court of Appeal
The Court of Appeal held that the trial judge's conclusion that a two-step process was required to take up lands was "wrong in both law and fact."
First, the court commented that Treaty 3 was between the Anishinaabe Nations and the Crown, not between the treaty commissioners and the Anishinaabe Nations, and that any subjective intention by the treaty commissioners could not have any bearing on the interpretation of the treaty. In any event, the court further found that the trial judge's conclusion in this regard was unsupported by the evidence.
Second, by accepting that the text "Government of the Dominion of Canada" should be interpreted literally, the Court of Appeal held that the trial judge's decision would create a two-step process for taking up lands, a process which was not contemplated at the time of treaty negotiations and would create a "legalistic straitjacket" in Ontario. This, the court considered, "could undermine, rather than advance, reconciliation" as mandated by s. 35 of the Constitution Act, 1982. The court held that the power of Canada as beneficial owner to take up lands under the harvesting clause devolved to Ontario when the beneficial title of the Treaty 3 lands at issue was transferred to Ontario, and that Ontario, as the beneficial owner, now bears "the burden of the harvesting clause imposed by [Treaty 3]."
The Court of Appeal also held that the transfer of Treaty 3 lands required Ontario to recognize the rights under Treaty 3 to the same extent that Canada had recognized such rights. Ontario could only take up land under Treaty 3 to the same extent that Canada could validly do prior to the transfer. Accordingly, the court held, Ontario's taking up power was subject to the limitations and obligations flowing from the honour of the Crown and s. 35 of the Constitution Act, 1982. Ontario could therefore validly take up Treaty 3 lands, but not so far as to deprive the Anishinaabe Nations of a meaningful right to harvest in Treaty 3 territory.
ISSUES ON APPEAL IN THE SUPREME COURT OF CANADA
The central question in the appeal was whether Ontario has the power to "take up" lands under Treaty 3.
THE COURT'S DECISION
The decision of the Ontario Court of Appeal was unanimously upheld. The Supreme Court held that while Canada negotiated and signed Treaty 3, the promises made by the Crown under Treaty 3 were "promises of the Crown, not those of Canada" and that after the transfer of beneficial title over the Keewatin lands to Ontario, Ontario's constitutional authority over land dispositions and non-renewable resources also became subject to the obligations and promises Canada had made under Treaty 3.
With respect to the text of the harvesting clause, the Court held that the reference to "the Government of the Dominion of Canada" reflected "a concept that includes all government power" and reasoned that in light of the boundary dispute occurring in the historical backdrop of Treaty 3, that if the drafters had intended to include the two-step process proposed by Grassy Narrows, it would have been expressly provided for in its text. In this respect, the Court agreed with the Court of Appeal that the trial judge had made errors of fact.
The Court also held that Treaty 3 not including a two-step taking up process was consistent with how subsequent governments resolved the boundary dispute, and that the transfer of the Keewatin lands in 1912 confirmed that Ontario was to thereafter "stand in Canada's shoes with respect to the rights of the Indians," which included the promises made by Canada under Treaty 3.
The Court concluded on this issue by holding that today "Ontario and only Ontario has the power to take up lands under Treaty 3" and commented that this power is however "not unconditional." Rather, the taking up power must be exercised "in conformity with the honour of the Crown, and is subject to the fiduciary duties that lie on the Crown in dealing with Aboriginal interests" such as the duty to consult and accommodate. A proposed taking up also cannot leave the Anishinaabe Nations with no meaningful right to hunt. In this regard, the Court referred to its previous decision with respect to Treaty 8 in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69.
Finally, the Court commented on an argument that had been raised that provinces were precluded by the constitutional doctrine of interjurisdictional immunity from justifiably infringing treaty rights. In this regard, the Court held that the analysis in its recent decision in Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 was a "full answer" and that where it is alleged that a provincial taking up amounts to infringement, the analysis in R. v. Sparrow,  1 S.C.R. 1075 and R. v. Badger,  1 S.C.R. 771 governs the situation. The Supreme Court confirmed, as it had in Tsilhqot'in, that provinces do have the constitutional authority to infringe Aboriginal and treaty rights, if they can meet the onerous justification test.
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