Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.



Areas of Law: Aboriginal and Treaty Law; Constitutional Law; Natural Resource Law

~ Ontario has the right to take up lands in the Keewatin Treaty 3 area. The treaty was made between the Crown and the First Nations and Ontario became the pertinent representative of the Crown under the treaty once the lands were added to the province. Ontario administers and has beneficial ownership of the lands. There is no federal supervisory role over Ontario’s taking up of lands under the treaty or pursuant to section 91(24) of the Constitution Act.~

Background: In October of 1873, Canada and the Saulteaux (Ojibway) entered into Treaty 3 concerning a large section of land in what is now northwestern Ontario and eastern Manitoba. The Treaty was a surrender of interest in lands by the Ojibway in exchange for reserves, payments, and other benefits. The Treaty also includes a “harvesting clause”, which allows the Ojibway to continue hunting and fishing over the surrendered lands, with the exception of lands needed or used for settlement, mining, lumbering, or other purposes by the “Government of the Dominion of Canada”. The Treaty 3 lands approach 55,000 square miles. In 1873, Canada claimed ownership of all of the territory covered under the Treaty. Part of the land, the “Keewatin Lands”, was under Canada’s jurisdiction in 1873, while another tract was disputed with Ontario. Since 1912, all these Treaty lands, with the exception of a small area in Manitoba, have been within Ontario’s borders. In 1997, Ontario issued a sustainable forest license allowing Abitibi-Consolidated Inc. (now Resolute Forest Products) to conduct forestry operations in parts of the Whiskey Jack Forest, which is within the Keewatin Lands. Grassy Narrows applied for judicial review in 2003, seeking to have set aside all licenses, permits, plans, and work schedules which had been granted to Abitibi, alleging a violation of the harvesting clause of the Treaty. The judicial review was quashed but the plaintiffs launched an action in 2005 leading to a lengthy trial in 2009-2010, and to these appeals. The trial judge found in favour of Grassy Narrows on all important issues, specifically that in the Keewatin Lands, Ontario could not “take up” lands and thereby limit harvesting rights without clearing it with Canada first. The central issue on the appeals was whether the imposition of this two step process was correct under a proper interpretation of the Treaty or under Canada’s constitutional framework.

Appellate Decision: The appeals involve multiple parties: three appellants, six interveners, and the respondents. The primary appellant was the Minister of Natural Resources, Ontario, and the respondents were the Grassy Narrows First Nation. The judges Sharpe, Gillese and Juriansz JJ.A., found that there were many errors made by the trial judge and that the appeals had to be allowed. The Court concluded that the trial judge was in error in finding that the Treaty Commissioners agreed to a requirement that Canada would forever have the power to approve the “taking up” of lands. This is fundamentally at odds with Canada’s established constitutional framework. The Commissioners had no power to qualify Ontario’s constitutional rights and responsibilities. The Ojibway’s treaty partner was and is the Crown, not Canada. The Ojibway may rely on Treaty promises only insofar as they keep within the framework of the division of powers in the Constitution. The Court relied on St. Catherine’s Milling where it was held that the Commissioners had no power to depart from the division of powers and responsibilities spelled out in the Constitution, and therefore no authority to withhold from Ontario any beneficial ownership that the province gained when its borders were expanded. The Court also rejected the trial judge’s assertion that Canada retaining a role in the taking up process would advance reconciliation. They concluded that the exercise of provincial jurisdiction under sections 109, 92(5) and 92A the Constitution Act, 1867, without federal control under s. 91(24), actually facilitated direct dialogue between the province and Treaty 3 First Nations. The Court interpreted such dialogue as key to achieving the goal of reconciliation. The conclusion of the Court was that Ontario did have a right to take up lands in the Keewatin Treaty 3 areas based on the constitutional framework, and this right extends to all Treaty 3 lands in Ontario.


The Ontario Court of Appeal rendered its decision in the Keewatin matter remarkably quickly – less than eight weeks after an eight day hearing. I think all counsel expected a longer reserve, given that the trial reasons were over 300 pages (single-spaced) and there were a large number of issues to deal with. The decision of the unanimous court, however does not attempt to tackle all of Justice Sanderson’s “lengthy, detailed and complex reasons for judgment”. The court states that it is “neither necessary nor desirable” to “canvas all the issues and arguments”. Instead, they chose to focus on “the truly dispositive issues”. Indeed, the reasons are a succinct treatment of the core issues.

In essence, the court overturned one crucial finding of Justice Sanderson: that Alexander Morris, the head Treaty Commissioner, specifically added the words “the Government of the Dominion of Canada” to the ‘taking up’ clause in order to ensure that the federal government had to approve any significant limitation on harvesting rights even if the province owned the lands. The Court of Appeal found there was no direct evidence that he intended this and that, in any case, the Treaty was negotiated with the Crown, not Canada, and not Alexander Morris. Justice Sanderson made numerous, painstaking findings of fact that led her to this conclusion. Nonetheless, her conclusion as to Morris’s intention was, according to the Court of Appeal, “speculative” and “inconsistent with the available evidence”. Relying on Mitchell v. MNR, the court said “an unreasonably generous weighing of tenuous evidence will be set aside”.

The court placed a lot of emphasis on the St. Catherines Milling, which specifically said that treaty commissioners could not alter the division of powers or allocation of responsibilities between the federal and provincial governments. Accordingly, even if Morris did have the intention Sanderson J. ascribed to him, he didn’t have the authority to limit Ontario’s powers. The appellants had always believed that St. Catherine’s Milling was the complete answer on the issue of Ontario’s sole power to take up lands, and the Court of Appeal evidently agrees.

On the question of keeping treaty promises, the court agreed with the appellants that the provincial Crown has the same section 35 duties to consult and accommodate that are outlined by the Supreme Court of Canada in Mikisew. The court also found that it is only when takings-up limit harvesting to such an extent that there is no meaningful right remaining that there will be an infringement . An action for infringement can then be brought but this still would not engage Canada in a supervisory role.

The decision will have significance in other areas of Canada, as it counters arguments (made by several of the intervenors in Keewatin) to the effect that the federal government should always be engaged whenever treaty rights are at issue pursuant to its section 91(24) jurisdiction. The court cited the Supreme Court of Canada decision in the Reference re Securities Act case of 2011 on this point stating that “a federal head of power” can’t “eviscerate provincial legislative competence”. In other words, provincial land ownership is not qualified by section 91(24).

As the language in Treaty 3 is similar or identical to most of the numbered treaties, the Keewatin decision should be persuasive in interpreting the taking up clauses of those treaties. Although the court said it was not necessary to consider the interplay of the Natural Resources Transfer Agreements with the numbered treaties, its findings are a good base to any future arguments in this area.


2). b). COMMENT BY COUNSEL FOR THE INTERVENOR, GOLDCORP INC., William Burden, Brian P. Dominique, and Linda I. Knol:

The decision of the Court of Appeal confirms that, since 1912, the Government of Ontario (“Ontario”) has the authority to take up lands in Keewatin governed by Treaty 3 for settlement, mining, lumbering or other purposes without the involvement or supervision of the Government of Canada (“Canada”). In reaching this decision, the Court confirmed several important principles of constitutional and aboriginal law, and provided an important measure of certainty for private proponents that conduct business in the Keewatin territory.

First, the Court upheld 125 years of case law that held the Crown’s authority to take up lands does not come from a treaty; rather, it comes from the Constitution Act, 1867. This was first decided by the Privy Council in 1888 in St. Catherine’s Milling and Lumber Co. v. The Queen, was reiterated by the Privy Council in 1902 in Ontario Mining Co. v. Seybold, and was confirmed by the Supreme Court of Canada in 1983 in Smith v. The Queen. Under section 109 of the Constitution Act, 1867, Ontario beneficially owns the public lands within its borders, and under section 92(5) of the Constitution Act, 1867, Ontario has exclusive legislative authority to manage and sell those public lands. Accordingly, when Canada annexed the Keewatin lands to Ontario in 1912, the authority to take up such lands governed by Treaty 3 passed from Canada to Ontario.

Second, the Court held that the Ojibway’s Treaty partner is the Crown, not any particular level of government. Thus, when Canada annexed the Keewatin lands to Ontario, Ontario “stepped into the shoes” of Canada for purposes of Treaty 3. Key to the Court’s decision was its ruling that Ontario’s authority to take up lands governed by Treaty 3 is subject to the rights guaranteed to the Ojibway in Treaty 3. In other words, when Ontario takes up Treaty 3 lands, Ontario must respect Treaty 3 rights.

Third, the Court of Appeal held that the test for infringement and the consultation process that was set out by the Supreme Court of Canada in its 2005 decision of Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) applies to Ontario’s taking up lands in Keewatin. In Mikisew, the Supreme Court of Canada explained how the existence of a take up clause in a treaty is relevant to determining if taking up of lands infringes a treaty harvesting right. Specifically, if the treaty provides that the First Nation’s right to hunt and fish is limited to lands that are not taken up from time to time for settlement, mining, lumbering and other purposes, then the taking up of lands will not infringe the First Nation’s treaty harvesting right if: (i) as a substantive matter, the Crown does not take up so much land that the right to hunt and fish in the First Nation’s traditional territories is rendered meaningless; and (ii) as a procedural matter, there is appropriate consultation with the First Nations that may be affected by the taking up.

Accordingly, when taking up lands in Keewatin, Ontario cannot take up so much land so as to deprive the Ojibway of a meaningful right to harvest in their traditional territories. In addition, Ontario must consult with the Ojibway concerning the taking up of lands, and Ontario must accommodate the Ojibway’s treaty rights whenever they are sufficiently impacted by the taking up of lands. In fulfilling these obligations, Ontario is not subject to Canada’s supervision.

For private proponents that conduct business in the Keewatin territory, the decision of the Court of Appeal brought a welcome measure of certainty. It confirms that the patents and licenses that have been issued by Ontario since 1912 and under which private proponents have been operating will not be rendered invalid due to Canada’s non-involvement in the issuance of such patents and licenses.

It also confirms that the consultation and accommodation process set out in Mikisew applies to the taking up of lands in Keewatin or other Ontario grants of right that interfere with treaty rights. This emphasizes the need for private proponents to obtain the advice of experienced counsel early in any process of Crown taking up or grant of right in order to shepherd the effective conduct and management of consultation and accommodation between the Crown and Aboriginal parties, and to facilitate timely and satisfactory outcomes.

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