Grassy Narrows First Nation v. Ontario (Natural Resources) [2014] S.C.C. 48

Tags:

Andrew Keewatin Jr. and Joseph William Fobister,

on their own behalf and on behalf of all other

members of Grassy Narrows First Nation                                                  Appellants

v.

Minister of Natural Resources, Resolute FP

Canada Inc. (formerly Abitibi‑Consolidated Inc.),

Attorney General of Canada and Goldcorp Inc.                                    Respondents

‑ and ‑

Leslie Cameron, on his own behalf and on behalf

of all other members of Wabauskang First Nation                                     Appellant

v.

Minister of Natural Resources, Resolute FP

Canada Inc. (formerly Abitibi‑Consolidated Inc.),

Attorney General of Canada and Goldcorp Inc.                                    Respondents

and

Attorney General of Manitoba, Attorney General of British

Columbia, Attorney General for Saskatchewan, Attorney

General of Alberta, Grand Council of Treaty # 3, Blood Tribe,

Beaver Lake Cree Nation, Ermineskin Cree Nation, Siksika

Nation, Whitefish Lake First Nation # 128, Fort McKay First

Nation, Te’mexw Treaty Association, Ochiichagwe’Babigo’Ining

First Nation, Ojibways of Onigaming First Nation, Big Grassy

First Nation, Naotkamegwanning First Nation, Métis Nation of

Ontario, Cowichan Tribes, represented by Chief William Charles

Seymour, on his own behalf and on behalf of the members of

Cowichan Tribes, Lac Seul First Nation, Sandy Lake First Nation

and Assembly of First Nations/National Indian Brotherhood                 Interveners

Indexed as:  Grassy Narrows First Nation v. Ontario (Natural Resources)

2014 SCC 48

File No.:  35379.

2014:  May 15; 2014:  July 11.

Present:  McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Wagner JJ.

on appeal from the court of appeal for ontario

                    Aboriginal law — Treaty rights — Harvesting rights — Interpretation of taking‑up clause — Certain lands subject to treaty annexed to Ontario after signature of treaty between Ojibway and Canada — Whether province has authority to take up tracts of that land so as to limit harvesting rights under treaty or whether it requires federal approval to do so — Constitution Act, 1867 , ss. 91(24) , 92(5) , 92A , 109 Constitution Act, 1982 , s. 35  — Treaty No. 3.

                    In 1873, Treaty 3 was signed by treaty commissioners acting on behalf of the Dominion of Canada and Ojibway Chiefs from what is now Northwestern Ontario and Eastern Manitoba. The Ojibway yielded ownership of their territory, except for certain lands reserved to them. Among other things, they received in return 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 the time that Treaty 3 was signed, a portion of land known as the Keewatin area was under the exclusive control of Canada. It 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, descendents 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 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. According to her, 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.

                    The Ontario Court of Appeal allowed the appeals brought before it. That court held that s. 109  of the Constitution Act, 1867  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 .

                    Held: The appeal should be dismissed.

                    The central question on this appeal is whether Ontario has the power to take up lands in the Keewatin area under Treaty 3 so as to limit the harvesting rights under the treaty, or whether this is subject to Canada’s approval.

                    Ontario and only Ontario has the power to take up lands under Treaty 3. This is confirmed by constitutional provisions, the interpretation of the treaty, and legislation dealing with Treaty 3 lands.

                    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.

                    Ontario’s power to take up lands under Treaty 3 is not unconditional.  When a government — be it the federal or a provincial government — exercises Crown power, the exercise of that power is burdened by the Crown obligations toward the Aboriginal people in question. Here, Ontario must exercise its powers in conformity with the honour of the Crown, and the exercise of those powers is subject to the fiduciary duties that lie on the Crown in dealing with Aboriginal interests. For Treaty 3 land to be taken up, the harvesting rights of the Ojibway over the land must be respected. Any taking up of land in the Keewatin area for forestry or other purposes must meet the conditions set out by this Court in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69. 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.

Cases Cited

                    Referred to:  Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; R. v. Horseman, [1990] 1 S.C.R. 901; St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46; Dominion of Canada v. Province of Ontario, [1910] A.C. 637; Smith v. The Queen, [1983] 1 S.C.R. 554; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Badger, [1996] 1 S.C.R. 771; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.

Statutes and Regulations Cited

Act for the settlement of certain questions between the Governments of Canada and Ontario respecting Indian Lands (1891) (U.K.), 54 & 55 Vict., c. 5, Sch., s. 1.

Act for the settlement of questions between the Governments of Canada and Ontario respecting Indian Lands (1891) (Ont.), 54 Vict., c. 3, Sch., s. 1.

Constitution Act, 1867 , ss. 91(24) , 92A , 92(5) , 109 .

Constitution Act, 1982 , s. 35 .

Ontario Boundaries Extension Act, S.C. 1912, c. 40, s. 2.

Treaty No. 3 (1873).

                    APPEAL from a judgment of the Ontario Court of Appeal (Sharpe, Gillese and Juriansz JJ.A.), 2013 ONCA 158, 114 O.R. (3d) 401, 304 O.A.C. 250, [2013] 3 C.N.L.R. 281, [2013] O.J. No. 1138 (QL), 2013 CarswellOnt 2910, setting aside a decision of Sanderson J., 2011 ONSC 4801, [2012] 1 C.N.L.R. 13, [2011] O.J. No. 3907 (QL), 2011 CarswellOnt 8900.  Appeal dismissed.

 

For complete Supreme Court Judgement

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14274/index.do

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