On July 11, 2014, the Supreme Court of Canada ("SCC")
released its unanimous decision in Grassy Narrows First Nation
v. Ontario(Natural Resources), 2014 SCC 48. The
question before the SCC was whether the Province of Ontario or the
Federal government had authority to "take up" lands in
the Keewatin area under Treaty 3, which lands lay within the
In 1873, the Dominion of Canada and Ojibway Chiefs signed Treaty
3, which covers approximately 55,000 square miles across
Northwestern Ontario and Eastern Manitoba.
According to this treaty, the Ojibway yielded ownership over
certain lands on their territory. In exchange, Grassy Narrows First
Nation, descendents of the Ojibway, received the right to harvest
the surrounding non-reserve lands until such time that the Dominion
of Canada decides to take it up for "settlement, mining,
lumbering, or other purposes".
Jurisdiction over the Keewatin lands was transferred from the
Federal government to Ontario in 1912 through the Ontario
Boundaries Extension Act.
In 1997, the Minister of Natural Resources for Ontario granted
Abitibi-Consolidated, a large pulp and paper manufacturer, a
forestry licence for its clear-cut forestry operations within the
Keewatin area. As a result, the Grassy Narrows First Nation sought
a declaration setting aside this licence.
Lower Court Decisions
At trial, Justice Sanderson declared that Ontario could not take
up lands within the Keewatin area so as to limit treaty harvesting
rights without first obtaining the Federal government's
approval. The trial judge interpreted the treaty to mean that a
two-step governmental process was required in obtaining approval
with respect to taking up Treaty 3 lands. The trial judge also
found that the doctrine of interjurisdictional immunity did not
allow Ontario to infringe upon treaty rights.
On appeal, the court set aside the trial decision and determined
that section 109 of the Constitution Act, 1867
and sections 92(5) and 92A of the Constitution Act,
1982 provides jurisdiction and exclusive power to Ontario
with respect to natural resources.
The Grassy Narrows First Nation appealed to the SCC.
The issue before the SCC was "whether Ontario can take up
lands in the Keewatin area under Treaty 3 so as to limit the
harvesting rights under the treaty, or whether it needs.
The SCC found in favour of the Ontario. In its reasons, the SCC
held that Ontario alone has the exclusive jurisdiction over the
Treaty 3 lands for provincially regulated purposes:
... By virtue of ss. 109, 92A and 92(5) of
the Constitution Act, 1867, Ontario alone has the
ability to take up Treaty 3 land and regulate it in accordance with
the treaty and its obligations under s. 35 of the Constitution
Act, 1982. A two-step process involving federal approval for
provincial taking up was not contemplated by Treaty 3. (at para.
The SCC cautioned, however, that the exercise of Ontario's
exclusive jurisdiction is not limitless:
These duties mean that for land to be taken up under Treaty 3,
the harvesting rights of the Ojibway over the land must be
respected. Any taking up of the land for forestry or other
purposes must meet the conditions set out by this Court in
Mikisew. As explained in the Ontario Court of Appeal (at
paras. 206 – 12), the Crown's right to take up lands
under Treaty 3 is subject to its duty to consult and, if
appropriate, accommodate First Nations' interests beforehand
(Mikisew, at para. 56). This duty is grounded in the honour
of the Crown and binds the Province of Ontario in the exercise of
the Crown's powers. In taking up the lands, Ontario must
consult First Nations in a manner consistent with the honour of the
Crown and fiduciary duties relating to Aboriginal interests. It
must take into consideration the impact that any governmental
decision or taking an action that may have on the Ojibway's
treaty rights and to act in good faith when consulting with
Aboriginal groups. Citing its earlier decision in
Tsilhqot'in Nation v British Columbia, the SCC
confirmed that if the "taking up" amounts to an
infringement, Ontario will have to justify the infringement
pursuant to the Sparrow/Badger
The SCC in Grassy Narrows conclusively answered the
question of provincial regulation on treaty lands. In doing
so, the SCC held that Treaty 3 was made with the Crown, not
Canada. As such, both levels of government are responsible
within their respective areas of jurisdiction and control under the
division of powers. However, the SCC warned that such jurisdiction
and control is subject to constitutional limitations. In
respect of Canadian provinces' authority over lands and natural
resources, the SCC ruled that such exercise of authority must be in
keeping with the honour of the Crown and fiduciary duties relating
to Aboriginal interests.
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guide to the subject matter. Specialist advice should be sought
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
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