Grassy Narrows First Nation V. Ontario (Natural Resources) – SCC Affirms Ontario’s Taking Up Of Treaty Lands For Resource Development Purposes

On July 11, 2014, the Supreme Court of Canada (SCC) released its decision in Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48. In a unanimous judgment written by Chief Justice McLachlin, the SCC upheld the decision of the Ontario Court of Appeal (ONCA) in Keewatin v. Ontario (Natural Resources), 2013 ONCA 158 in its entirety, confirming that valid provincial laws over forestry, mining, settlement and other matters continue to apply in Treaty 3 territory in Ontario and are entirely consistent with the terms of Treaty 3. Our analysis of the ONCA's decision and the background of this case is available here.

Grassy Narrows will be viewed as a positive decision from the perspective of government and industry, as it resolves considerable uncertainty that had been created by the lower court decision (2011 ONSC 4801). Based on its interpretation of Treaty 3, the lower court had suggested that Ontario could not "take up" lands in the Keewatin area of Ontario absent a two-step process requiring prior authorization of the federal government. This would have had the practical effect of essentially freezing Ontario's independent authority to regulate resource development on those lands, despite such matters falling squarely within its provincial jurisdiction in the Constitution Act, 1867.

Treaty 3 is one of Canada's historical "numbered treaties", also known as the land cession treaties. It was entered into in 1873 between Canada and the Saulteaux Tribe of the Ojibway Indians (Ojibway) in respect of lands in what is now northwestern Ontario and eastern Manitoba. Pursuant to the so-called "Harvesting Clause" in Treaty 3, the Ojibway surrendered their interest in the lands in exchange for certain benefits, including rights to hunt and fish, except on tracts "required or taken up for settlement, mining, lumbering or other purposes by [the] Government of the Dominion of Canada". The Appellants were members of the Grassy Narrows First Nation, descendants of the Treaty 3 signatories. Based on an historical interpretation of Treaty 3, they alleged that Ontario's issuance of a forestry licence on the Keewatin lands violated the Harvesting Clause.

SCC confirms Ontario's right to take up lands while limiting Treaty 3 harvesting rights

The SCC confirmed Ontario's exclusive authority to take up tracts of land in the Keewatin area so as to limit the Appellants' harvesting rights under Treaty 3. Although the federal government entered into...