The Supreme Court of Canada has upheld the right of the province of Ontario to license forestry operations on Treaty 3 lands, without the approval of the federal government. In so doing, the court refused an appeal by Grassy Narrows First Nation designed to protect its harvesting rights against the licensed operations – Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48

However, Ontario’s right to “take up lands” is subject to its duty to consult and accommodate and must not leave the First Nation with no meaningful right to hunt, fish or trap in relation to the territories over which they traditionally hunted, fished, and trapped.

The case

Ojibway Chiefs from what is now Northwestern Ontario and Eastern Manitoba entered into Treaty 3 in 1873. By that Treaty, the Ojibway yielded ownership of certain territory in return for the right to harvest the non‑reserve lands surrendered by them until such time as they were “taken up” for settlement, mining, lumbering, or other purposes by the Government of the Dominion of Canada.

At that time, a portion of land known as the Keewatin area was under the exclusive control of Canada. That land was annexed to Ontario in 1912 and since that time, Ontario has issued licences for the development of those lands.

In 2005, the Grassy Narrows First Nation, descendants of the Ojibway signatories of Treaty 3, commenced an action challenging a forestry licence issued by Ontario to a large pulp and paper manufacturer and which authorized clear‑cut forestry operations within the Keewatin area.

The Trial Decision

The trial judge held that Ontario could not take up lands within the Keewatin area so as to limit treaty harvesting rights without first obtaining Canada’s approval. The taking‑up clause in the treaty imposed a two‑step process involving federal approval for the taking up of Treaty 3 lands added to Ontario in 1912.

Appeal to the Ontario Court of Appeal

The Ontario Court of Appeal allowed the appeals brought before it. That court held that s. 109 of the Constitution Act, 1867 expressly gives Ontario beneficial ownership of Crown lands within Ontario.

That provision, combined with provincial jurisdiction over the management and sale of provincial public lands and the exclusive provincial power to make laws in relation to natural resources gives Ontario exclusive legislative authority to manage and sell lands within the Keewatin area in accordance with Treaty 3 and s. 35 of the Constitution Act, 1982.

Appeal to the SCC

The Supreme Court of Canada agreed with the Ontario Court of Appeal and dismissed the appeal.

First, although Treaty 3 was negotiated by the federal government, it is an agreement between the Ojibway and the Crown.

Both levels of government are responsible for fulfilling the treaty promises when acting within the division of powers under the Constitution. Sections 109, 92(5) and 92A of the Constitution Act, 1867 establish conclusively that Ontario holds the beneficial interest in the Keewatin lands and has exclusive power to manage and sell those lands as well as to make laws in relation to the resources on or under those lands. Together, these provisions give Ontario the power to take up lands in the Keewatin area under Treaty 3 for provincially regulated purposes such as forestry.

Further; s. 91(24) of that same Act does not give Canada the authority to take up provincial land for exclusively provincial purposes.

Second, nothing in the text or history of the negotiation of Treaty 3 suggests that a two‑step process requiring federal supervision or approval was intended. The text of the taking‑up clause supports the view that the right to take up land rests with the level of government that has jurisdiction under the Constitution. The reference in the treaty to Canada merely reflects the fact that the lands at the time were in Canada, not Ontario.

Lastly, legislation subsequent to the signature of the treaty and which dealt with Treaty 3 lands confirmed Ontario’s right to take up that land by virtue of its control and beneficial ownership of the territory. It did not amend the terms of Treaty 3.

However, there are limits to Ontario’s power to take up lands under Treaty 3. Per Chief Justice McLachlan, delivering the judgment of the court, at paragraph 52

Where a province intends to take up lands for the purposes of a project within its jurisdiction, the Crown must inform itself of the impact the project will have on the exercise by the Ojibway of their rights to hunt, fish and trap, and communicate its findings to them. It must then deal with the Ojibway in good faith, and with the intention of substantially addressing their concerns (Mikisew, at para. 55; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 168).  The adverse impact of the Crown’s project (and the extent of the duty to consult and accommodate) is a matter of degree, but consultation cannot exclude accommodation at the outset. Not every taking up will constitute an infringement of the harvesting rights set out in Treaty 3. This said, if the taking up leaves the Ojibway with no meaningful right to hunt, fish or trap in relation to the territories over which they traditionally hunted, fished, and trapped, a potential action for treaty infringement will arise (Mikisew, at para. 48).