Canada: Supreme Court Releases Decision In Keewatin

Last Updated: October 7 2014
Article by Cathy Guirguis and Senwung Luk

The Supreme Court of Canada released its decision today in Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 [referred to as Keewatin, in the courts below]. In a unanimous decision, the SCC dismissed the appeal and confirmed the Ontario Court of Appeal's decision that Ontario, not Canada, has the jurisdiction to take up land in Treaty 3.

The immediate reaction has been a lot of disappointment about the state of Canadian law that is reflected in this decision.

Background of the case

This claim began in 2005 by Grassy Narrows First Nation and trappers from the First Nation launching an action to have a forestry licence that was issued by Ontario set aside. The basis for that action was that the forestry licence violated Treaty 3 harvesting rights. The action was split into two parts. The first part to be determined included two questions: (1) does Ontario have the authority to take up tracts of land in what is referred to as the Keewatin area, so as to limited Treaty 3 harvesting rights? and (2) If the answer to the first question is no, does Ontario have authority under the Constitution Act, 1867 to justifiably infringe Grassy Narrow First Nation's' treaty rights?

This decision and all decisions to date have been about the first part of this action. The trial judge answered no to both questions, finding, based on the text of the Treaty, that Treaty 3 had been entered into by the Ojibway and Canada, and as such, only Canada had authority to take up lands in the Keewatin area. For Ontario to be able to take up lands, it had to obtain approval from the federal government. The trial judge also found that the province was prevented from infringing treaty rights, per the doctrine of interjurisdictional immunity under the Canadian constitution.

That decision was reversed by the Ontario Court of Appeal. They answered yes to both questions. This was confirmed by the Supreme Court's decision today: by virtue of the Canadian constitution, the interpretation of Treaty 3, and legislation dealing with Treaty 3 lands, the Supreme Court decided that Ontario has the authority to take up lands.

Taking Up Lands

The Supreme Court was clear in its decision that Ontario's power under Canada's constitution means that it can take up lands subject to Treaty 3, for provincial purposes including forestry, provided that it meet the legal requirements for 'taking up' lands. Those requirements, according to the Supreme Court, have already been set out in in MIkisew Cree First Nation v. Canada. The point being, that authority is not unconditional and Ontario is bound by the same legal requirements and fiduciary obligations when it takes up land that Canada would have been, e.g. the duty to consult and accommodate.

But a source of a lot of the disappointment about this decision is that the wrong question is being answered. The question should be: in light of the evidence that was brought in this case about the intentions of the Ojibway entering into Treaty 3, why is the taking up clause still in tact?

The evidence was clear that the Ojibway entered into the treaty based on the understanding that their way of life would not change – that is echoed by the Supreme Court's decision re-stating the trial judge's finding "that the Ojibway Chiefs who were key players in the negotiation of Treaty 3 were in no rush to make a deal. They were under no immediate threat, as settlers were only passing through their territory, not settling on it. They were only prepared to cooperate if they could retain their way of life, particularly their traditional hunting, fishing and trapping activities."(para. 8)

From the facts presented at trial (including expert testimony, and written records of oral exchanges), the judge found that the Ojibway were promised that their harvesting rights outside of the Dawson and CPR routes would continue forever without significant interference.

What flows logically from the evidence that was accepted at trial about the Ojibway Chiefs' intentions and understanding of the agreement being made with the Crown at that time is that the taking up clause as a whole is not valid. That is not the question that the Supreme Court answered here, but it is important to keep in mind when interpreting the decision that we do have. We need to continue asking questions about what was actually agreed to in Treaty.

What happened to consent?

Key to the question of what was agreed to in the Treaty is the role of consent in the process of reconciliation between Aboriginal and non-Aboriginal Canadians. In its decision two weeks ago in Tsilhqot'in Nation, the Supreme Court of Canada affirmed the Aboriginal title rights of the Tsilhqot'in Nation, in effect telling the provincial and federal governments that they cannot just assert that they own the lands of Aboriginal peoples. But even then, the Court found that in some circumstances, when the government has objectives that are substantial, compelling, and in the public interest, it can infringe on Aboriginal title rights, provided that it meets a series of conditions, such as that the infringement should not destroy the First Nation's lands for future generations, and that it should only take the minimum of what is necessary for the government's objective, and leave the rest for the First Nation.

We would note that even this quite restrictive minimal infringement approach falls short of the widely recognized international law norm of "free, prior, and informed consent" (FPIC) – which means that the lands and resources of Aboriginal peoples, such as those that are guaranteed to them through treaty, are not to be taken from them without their consent. This standard has been recognized in international law instruments like the UN Declaration on the Rights of Indigenous Peoples, to which Canada is a signatory.

The Supreme Court's treatment of Treaty 3 in its decision in Grassy Narrows falls far short of the FPIC standard, and does not even reach the level of protection for Aboriginal title rights that it found in Tsilhqot'in Nation.

As we mentioned earlier in this post, the evidence was clear that the Ojibway entered into the treaty based on the understanding that their way of life would not change – and that the Supreme Court agreed that this was the basis under which the Ojibway signatories entered into this agreement.

As we also mentioned earlier, the trial judge had found as evidence that the Ojibway would continue to exercise their rights without significant interference on all lands outside of the Dawson Route and the CPR corridor. That doesn't add up to a consensus that the Crown would then be able to interfere with their rights by "taking up" lands. So there was no understanding from the Ojibway signatories that the treaty rights to harvesting they were supposed to enjoy in perpetuity would be subject to "taking up", such as for lumbering.

Therefore a better question that the Court could have addressed was whether it was a legitimate way of treaty-making for the "taking up" text to have been inserted into Treaty 3 in this manner. Is this kind of imposition a good way of encouraging reconciliation between Aboriginal and non-Aboriginal Canadians?

Where does this leave us?

As set out by the Supreme Court, the province is authorized to allow lumbering on the lands on which the Anishnabe signatories of Treaty 3 have harvesting rights. The province is allowed to do this if it follows the rules laid out in the earlier Mikisew Cree case, which obligates the Crown to consult and accommodate Aboriginal peoples where their treaty rights might be infringed by government action. The Supreme Court also laid out that where the government action leaves the First Nation with "no meaningful right" to harvest, it would be able to argue that its Treaty rights were being trampled on and that the courts should intervene.

Duty to consult and accommodate

It is important to remember that the rights laid out in the Mikisew Cree and Haida Nation cases put a duty on the Crown to consult an Aboriginal community with respect to actions that may affect their rights, but also to accommodate them to avoid impacts upon their rights.

"No meaningful right" remaining

As the Supreme Court held, if government action leaves the Aboriginal community with no meaningful right left, the courts are to step in to stop this kind of infringement. As has been found in previous decisions like Mikisew Cree and West Moberly, even if the Treaty sets out a harvesting right across the whole of a treaty territory, it does not mean that a treaty rights holder exercises her rights meaningfully if she has to travel an unreasonable distance in order to exercise that right. Meaningful exercise of a right means being able to exercise the right in the way that she always has, or wants to. Intensive destruction of a local area can therefore render a harvesting right meaningless.

Moreover, the Court found that the right that the First Nations signatory had agreed to in Treaty 3 was a right to continue sustaining their livelihoods through traditional harvesting. That establishes a substantial core for what the "meaning" of the treaty right is. So, if there is not enough forest habitat left to sustain wildlife to provide for, let's say, 90% of a community's food needs, would that constitute leaving the community with no meaningful right? The question remains open and we would suggest the First Nations signatories have a strong argument in their favour.

The Supreme Court left aside the question of whether the lumbering permitted out by Ontario rose to the level of leaving "no meaningful right". This is an open question that will have to be determined in a different context. This is not the end of the story, but part of how we will deal with the next questions: what does a "meaningful right" include? Given the strong findings on what the rights of the First Nations signatories are, what kinds of Crown activities will be permitted there? And, ultimately, how should the Crown be behaving so that it lives up to the Treaty as the signatories understood it, and to its role in preserving an honourable relationship between Aboriginal and non-Aboriginal Canadians?

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.

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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

    By clicking Register you state you have read and agree to our Terms and Conditions