Canada: Supreme Court Confirms Ontario Has Crown Rights And Burdens Under Treaty 3

Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48


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.


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.


The central question in the appeal was whether Ontario has the power to "take up" lands under Treaty 3.


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, [1990] 1 S.C.R. 1075 and R. v. Badger, [1996] 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.

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.

Events from this Firm
8 Nov 2016, Seminar, Ottawa, Canada

The prospect of an internal investigation raises many thorny issues. This presentation will canvass some of the potential triggering events, and discuss how to structure an investigation, retain forensic assistance and manage the inevitable ethical issues that will arise.

22 Nov 2016, Seminar, Ottawa, Canada

From the boardroom to the shop floor, effective organizations recognize the value of having a diverse workplace. This presentation will explore effective strategies to promote diversity, defeat bias and encourage a broader community outlook.

7 Dec 2016, Seminar, Ottawa, Canada

Staying local but going global presents its challenges. Gowling WLG lawyers offer an international roundtable on doing business in the U.K., France, Germany, China and Russia. This three-hour session will videoconference in lawyers from around the world to discuss business and intellectual property hurdles.

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.