Grassy Narrows First Nation v. Ontario (Natural Resources)

In Grassy Narrows First Nation v. Ontario (Natural Resources), the Supreme Court of Canada (“SCC”) unanimously ruled that the Government of Ontario has the authority to “take up” land in the Keewatin Territory so as to limit First Nations' harvesting rights under Treaty 3 without requiring the approval of Canada. The SCC further held that provinces have the authority to infringe treaty harvesting rights if the infringement can be justified under s. 35 of the Constitution Act, 1982

Under the terms of Treaty 3, the First Nation signatories agreed to surrender their title and rights to approximately 55,000 square miles of land (subject to lands reserved for their use), including the Keewatin Territory. The Keewatin Territory is situated in northwestern Ontario. It comprises approximately 40 per cent of the land that is subject to Treaty 3. Treaty 3 gave the First Nation signatories the right to hunt and fish (harvest) throughout the surrendered territory except on land that is “required or taken up for settlement, mining, lumbering or other purposes” by the “Government of the Dominion of Canada.” 

In 1873, at the time that Treaty 3 was entered into, Canada controlled the Keewatin Territory. Canada annexed the Keewatin Territory to Ontario in 1912. Ontario has administered the Keewatin Territory since that annexation, and has taken up lands without the involvement or authorization of Canada by, for example, issuing land patents, establishing municipalities, recording mining claims, and issuing mining leases and timber licenses. 

In 1997, Ontario issued a sustainable forestry license to Abitibi-Consolidated Inc. (“Abitibi”, a predecessor to Resolute FP Canada Inc.), which authorized Abitibi to carry out clear-cut forestry operations in parts of the Keewatin Territory. In 2000, Grassy Narrows First Nation commenced a proceeding to challenge that sustainable forestry license on the basis that it infringed their harvesting rights under Treaty 3. 

In August 2011, the Ontario Superior Court of Justice held that (i) Ontario does not have the authority to take up land in the Keewatin Territory if the taking up would significantly interfere with Treaty 3 harvesting rights unless Canada first approved the taking up; and (ii) Ontario does not have the authority to infringe Treaty 3 harvesting rights even if the infringement can be justified under s. 35 of the Constitution Act, 1982

In March 2013, the Court of Appeal for Ontario overturned the decision of the Superior Court. The Court of Appeal held that Ontario does have the authority to take up lands in the Keewatin Territory so as to limit the First Nations' harvesting rights, and that such taking up by Ontario does not require Canada's approval. The Court of Appeal declined to opine on whether Ontario has the authority to infringe Aboriginal treaty rights if the infringement can be justified under s. 35 of the Constitution Act, 1982

On July 11, 2014, the SCC upheld the Court of Appeal's decision that Ontario has the authority to take up lands in the Keewatin Territory so as to limit the First Nations' harvesting rights without the approval of Canada. Central to the SCC's decision is its conclusion that Treaty 3 is a treaty between the First Nation signatories and the Crown, not between the First Nation signatories and Canada. As Crown representatives, both Canada and Ontario are responsible for fulfilling the Treaty 3 promises within their respective spheres of jurisdiction as established by the Constitution Act, 1867

Section 109 of the Constitution Act, 1867 gives Ontario beneficial ownership over the lands within its boundaries, and sections 92A and 92(5) give Ontario the authority to administer the lands within its boundaries by, for example, issuing mining and forestry licenses. Taken together, these sections give Ontario – and only Ontario – the authority to take up lands in the Keewatin Territory for settlement, mining, forestry and other provincial purposes. 

The SCC confirmed its 2005 decision in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) that the Crown's authority to take up treaty lands is not unconditional. Treaty harvesting rights must be respected. Accordingly, when taking up Treaty 3 lands (i) Ontario has the duty to consult with the First Nations that may be affected by the taking up, and to accommodate their interests when appropriate; and (ii) Ontario cannot take up so much Treaty 3 land that the First Nations' right to harvest in their traditional territories becomes meaningless. If the Crown takes up so much land that the right to harvest is rendered meaningless, then a potential action for treaty infringement may arise. 

Consistent with its recent decision in Tsilhqot'in Nation v. British Columbia, in which the SCC overturned prior case law in holding that provinces have the authority to justifiably infringe Aboriginal rights, the SCC held that provinces have the authority to infringe treaty harvesting rights if the infringement can be justified under s. 35 of the Constitution Act, 1982 in accordance with the test established by the SCC in R. v. Sparrow and R. v. Badger

Robert Janes and Elin Sigurdson of JFK Law Corporation represented the appellants Andrew Keewatin Jr. and Joseph William Fobister, on their own behalf and on behalf of all other members of the Grassy Narrows First Nation. 

Bruce McIvor and Kathryn Buttery of First Peoples Law Corporation represented the appellant Leslie Cameron, on his own behalf and on behalf of all other members of the Wabauskang First Nation. 

Michael Stephenson, Peter Lemmond, Mark Crow and Christine Perruzza of the Attorney General of Ontario represented the respondent the Minister of Natural Resources. 

Christopher Matthews of Aird & Berlis LLP represented the respondent Resolute FP Canada Inc. (formerly Abitibi-Consolidated Inc.). 

Mark Kindrachuk and Mitchell Taylor of the Attorney General of Canada represented the respondent the Attorney General of Canada. 

Thomas Isaac of Osler, Hoskin & Harcourt LLP and William Burden, Linda Knol, Brian Dominique and Erin Craddock of Cassels Brock & Blackwell LLP represented the respondent Goldcorp Inc. 

Michael Connor and Heather Leonoff of the Attorney General of Manitoba represented the intervener the Attorney General of Manitoba. 

Paul Yearwood of the Attorney General of British Columbia represented the intervener the Attorney General of British Columbia. 

Richard Fyfe and Macrina Badger of the Attorney General for Saskatchewan represented the intervener the Attorney General for Saskatchewan. 

Douglas Titosky of the Attorney General of Alberta represented the intervener the Attorney General of Alberta. 

Peter Hutchins, Zachary Davis, Robin Campbell and Jessica Labranche of Hutchins Legal Inc. represented the intervener Grand Council of Treaty # 3. 

Meaghan Conroy and Abram Averbach of MacPherson Leslie & Tyerman LLP represented the interveners the Blood Tribe, the Beaver Lake Cree Nation, the Ermineskin Cree Nation, the Siksika Nation and the Whitefish Lake First Nation # 128. 

Karin Buss and Kirk Lambrecht of Henning Byrne LLP represented the intervener the Fort McKay First Nation. 

Karey Brooks of JFK Law Corporation represented the intervener the Te'mexw Treaty Association. 

Donald R. Colborne represented the interveners the Ochiichagwe'Babigo'Ining First Nation, the Ojibways of Onigaming First Nation, the Big Grassy First Nation and the Naotkamegwanning First Nation. 

Jason Madden and Nuri Frame of Pape Salter Teillet represented the intervener the Métis Nation of Ontario. 

David Robbins, Dominique Nouvet and Heather Mahony of Woodward & Company represented the intervener the Cowichan Tribes, represented by Chief William Charles Seymour, on his own behalf and on behalf of the members of Cowichan Tribes. 

David Leitch of Keshen & Major represented the interveners the Lac Seul First Nation and the Sandy Lake First Nation. 

Joseph Arvay and Catherine Boies Parker of Farris, Vaughan, Wills & Murphy LLP represented the intervener the Assembly of First Nations/National Indian Brotherhood.