Two weeks after the highly publicized Tsilhqot'in v. British Columbia decision, the
Supreme Court of Canada has released another prominent decision in
the area of Aboriginal law. The issue in Grassy Narrows
First Nations v. Ontario (also referred to as Keewatin v.
Ontario) was a narrow but important one – does a
province (rather than the federal government) have the authority to
approve logging, mining and other activities on Crown lands that
are subject to treaty rights? The Court's answer can be
summarized as "yes, but only if the province has met its duty
What is the significance of the case to industry?
The stakes in the case were high - a ruling against the province
would have cast doubt on the validity of provincial approvals for
forestry, mining and other activities on Crown lands that were
surrendered by treaty. By rejecting that outcome, the Court has
provided a pragmatic framework for dealing with surrendered
lands, while ensuring that provinces respect treaty rights.
This ruling should allow industry participants to breathe a little
easier knowing that existing provincial approvals on surrendered
lands are valid, provided the province's duty to consult has
What was the issue in Grassy Narrows?
The dispute in Grassy Narrows arose from a licence
issued in 1997 by the provincial government to a forestry company,
Resolute FP, to carry out clear-cut operations on Crown lands
surrendered by the Ojibway under Treaty 3.
Treaty 3 was signed in 1873 between Canada and the Ojibway
Chiefs from what is now Northwestern Ontario and Eastern
Manitoba. As part of Treaty 3, the Ojibway retained a right
to hunt and fish on the surrendered lands except where taken up by
Canada for "settlement, mining, lumbering or other
purposes". A portion of the surrendered lands (known as the
Keewatin area) became part of Ontario in 1912.
The court was asked whether Ontario needed the approval of the
federal government to "take up" lands within the Keewatin
area that would limit the Ojibway's treaty harvesting rights.
In 2011, an Ontario trial judge determined that the taking-up
rights in Treaty 3 imposed a two-step process that required both
the approval of the federal and provincial governments before land
could be taken up. The decision was overturned by the Ontario
Court of Appeal and ended up before the Supreme Court of Canada for
What did the Supreme Court of Canada decide?
The Court determined that the province of Ontario has the right
under Treaty 3 to take-up lands without federal approval. Although
Treaty 3 was negotiated by the federal government, it is an
agreement between the Crown – a concept that includes all
government power in Canada – and the Ojibway.
Therefore, Treaty 3 binds whichever level of government has the
constitutional power to exercise or perform the rights and
obligations of the Crown under the treaty. Since 1912, the province
of Ontario has had the exclusive authority under the Constitution
to take up lands for forestry, mining and settlement in the
Keewatin lands. Indeed, the Court recognized that the province had
exercised that power for nearly 100 years without objection from
Are there limits on the Ontario government's ability to
take up lands?
While the province does not need federal approval to take up
lands in the Keewatin area, the province is obligated to respect
the harvesting rights of the Ojibway over the land.
Consequently, the right to take up lands under Treaty 3 is subject
to the duty to consult and, if appropriate, accommodate Aboriginal
To fulfil its duty to consult, the province must first inform
itself of the impact of a particular project on the Ojibway's
harvesting rights, and then deal with the Ojibway in good faith
with the objective of substantially resolving any concerns. If
a taking-up would leave the Ojibway with no meaningful right to
hunt, trap or fish, it will amount to an infringement of Treaty 3
that will need to be justified using the three criteria set out by
the Court in prior decisions (most recently in
Tsilhqot'in)(i) the duty to consult and accommodate
has been fulfilled, (ii) the actions are backed by a compelling and
substantive objective, and (iii) the actions are consistent with
the Crown's fiduciary obligation to the group. In this respect,
the decision is a confirmation of the Court's past rulings on
the duty to consult and does not break new ground.
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.
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