Ontario Government Entitled To Exercise Crown Rights Under Treaty 3

INTRODUCTION

On July 11, 2014 the Supreme Court of Canada (the "SCC") released its decision in Grassy Narrows First Nation v Ontario (Natural Resources).1 The unanimous decision affirms the Ontario Court of Appeal judgement which held that the Province of Ontario does not require Government of Canada approval to develop certain lands surrendered by the Ojibway First Nation to the Crown under Treaty 3.2

BACKGROUND

In 1873, the Dominion of Canada concluded Treaty 3 with the Ojibway Chiefs for the surrender of approximately 55,000 square miles of land in what is now northwestern Ontario and eastern Manitoba. The Dominion of Canada needed to secure safe passage through these lands to promote settlement in western Canada and build the Canadian Pacific Railway. In exchange for surrendering the lands, the Crown granted the Ojibway reserve lands in the area. Treaty 3 also gave the Ojibway rights to harvest non-reserve lands in their traditional territory until those harvest lands were "taken up" for settlement, mining, lumbering or other purposes by the Government of the Dominion of Canada.3

In 1997, Ontario granted a timber licence to Abitibi-Consolidated Inc. (now known as Resolute FP Canada Inc.) to conduct clear-cut forestry operations on Crown lands situated in a portion of the Treaty 3 lands known as the Keewatin area. At the time Treaty 3 was concluded, the Keewatin area was under the exclusive control of Canada. However, it was subsequently annexed to Ontario through the enactment in 1912 of the Ontario Boundaries Extension Act.

In 2005, the Grassy Narrows First Nations (the "Grassy Narrows"), descendants of the Ojibway First Nation, brought an action to set aside the forestry licence on the basis that it violated their Treaty 3 harvesting rights.

JUDICIAL HISTORY

In 2006, a case management judge divided the trial into two phases. The first phase consisted of two threshold questions:4

Whether Ontario has authority to "take up" tracts of land within the Keewatin area so as to limit Treaty 3 harvesting rights? If the answer to the first question is no, does Ontario have authority under the Constitution Act, 1867 to justifiably infringe the appellants' treaty rights? The second phase of the trial will eventually involve a determination of the Grassy Narrows' claim that the specific forestry licenses at issue are invalid. This second phase of litigation has yet to commence.

The trial judge held that Treaty 3 established a two-step process for...