Keewatin v. Ontario (Natural Resources), 2013 ONCA 158

Introduction

On March 18, 2013, the Court of Appeal for Ontario (ONCA) issued its highly anticipated reasons in Keewatin v. Ontario (Natural Resources),1 unanimously allowing the appeals of Resolute FP Canada Inc. and the governments of Ontario and Canada. The decision clears up considerable uncertainty that resulted from the lower court decision (2011 ONSC 4801), which suggested that Ontario did not possess jurisdiction to "take up" lands in the Keewatin area of Ontario without prior authorization of the federal government, based on the trial judge's interpretation of a "harvesting clause" in Treaty 3. The ONCA confirmed that valid provincial laws over forestry, mining and other matters continue to apply in Treaty 3 territory in Ontario and are entirely consistent with the terms of Treaty 3.

Background

Treaty 3 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. 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" (Harvesting Rights). The pertinent clause stated:

Her Majesty further agrees with Her said Indians, that they, the said Indians, shall have [the] right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada, and saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government. [emphasis added] (Harvesting Clause)

The plaintiffs were members of the Grassy Narrows First Nation, descendants of the Treaty signatories. They applied for judicial review of a decision by Ontario's Minister of Natural Resources (Ontario) to issue a licence for clear-cut forestry activities to Resolute FP Canada Inc. (then Abitibi-Consolidated Inc.), alleging that the licence violated the Harvesting Clause. Two questions were put before the trial judge:

1. whether Ontario has authority to "take up" lands for forestry, within the meaning of the Harvesting Clause, so as to limit the Harvesting Rights (Question One); and

2. if the answer to Question 1 is "no," whether Ontario has the authority, pursuant to the constitutional division of powers between Parliament and the legislatures, to justifiably infringe the Plaintiffs' Harvesting Rights (Question Two).

   The trial judge answered "no" to both questions. In respect of Question One, she concluded that the Harvesting Clause had the effect of imposing a two-step process requiring the authorization of Canada in order for Ontario to "take up" lands throughout the Treaty 3 area. She also concluded that Canada's jurisdiction over "Indians, and Lands Reserved for the Indians" under s. 91(24) of the Constitution Act, 1867 gave Canada a residual right to authorize Ontario's taking up of its own lands. In respect of Question Two, the trial judge held that Ontario could not justifiably "infringe" the Harvesting Rights, which she determined were within federal jurisdiction under s. 91(24).

   The Decision

   The ONCA overturned the lower court's decision and answered "yes" to Question One, concluding that Ontario can avail itself of the "taking up" powers under Treaty 3, so as to limit the Plaintiffs' Harvesting...