Keewatin v. Ontario (Natural Resources),2013 ONCA 158, Court of Appeal for Ontario (Sharpe, Gillese and Juriansz JJA), 8 March 2013

The Ontario Court of Appeal held that the Provincial Crown could authorize the taking up of lands within Treaty 3 for forestry purposes, notwithstanding the language of the Treaty which spoke only of the Dominion Government taking up land.

Facts

This was an appeal by Ontario, Canada and Resolute FP Canada Inc. (“Appellants”) from a judgment stating Ontario was not entitled to take up land subject to Treaty 3 for forestry purposes without first obtaining approval from the Government of Canada.

Treaty 3 was entered into by the Crown and the Ojibway of what is now North-Western Ontario in 1873. Pursuant to Treaty 3, the Ojibway surrendered their interest in certain lands in exchange for reserves, annuity payments and other benefits. Treaty 3 contains a “harvesting clause” by virtue of which the Ojibway retain the right “to pursue their avocations of hunting and fishing throughout the tract surrendered” except on tracts “required or taken up for settlement, mining, lumbering or other purposes by [the] Government of the Dominion of Canada”.

In 1873 the land covered by Treaty 3 was the subject of a dispute between the Federal Government and Ontario, with Canada maintaining that the entire area fell within the boundaries of the North West Territories, and Ontario asserting the majority of the Treaty lands fell within its borders.  In 1878, arbitrators appointed by Ontario and the Federal Liberal Government of Alexander Mackenzie found in favour of Ontario, but the award was rejected by Sir John A. Macdonald who was re-elected late in that year.  The dispute was then referred to the Privy Council, which affirmed the arbitrators’ award.  In the meantime, the Boundaries of Manitoba had been extended eastward in 1881.  The end result was that the great majority of the territory covered by Treaty 3 was within the boundaries of Ontario with small extensions into Manitoba in the southwest.  In the northwest, there was also an area that extended into the District of Keewatin, which was then part of the North West Territories.  In this case they were designated the “Keewatin Lands”.

In 1894, Canada and Ontario entered into an agreement, authorized by reciprocal legislation which, among other things, provided that with respect to lands “taken up for settlement, mining, lumbering or other purposes ... it is hereby conceded and declared” that as the lands belong to Ontario, the Indian harvesting rights “do not continue with reference to any tracts which have been, or from time to time may be, required to be taken up for settlement, mining, lumbering or other purposes by the Government of Ontario or persons duly Authorized by the said Government of Ontario”.

In 1912, the boundaries of Ontario were extended northward to include the Keewatin Lands.  The 1894 Agreement was not amended to authorize the Province’s taking up of lands within the territory added to the Province nor was any other federal-provincial agreement entered into that authorized Ontario to take up any locations within the Keewatin Lands.

In 1997, Ontario issued a sustainable forest license to Resolute FP (formerly Abitibi Consolidated), to carry out clear-cut forestry operations in certain parts of the Keewatin Lands. Grassy Narrows First Nation (the “Respondent”) launched an action seeking judicial review of the licence on the grounds that Ontario had no authority to licence forestry operations which would infringe the Treaty harvesting rights of the Respondents.

The trial judge had ruled in favour of the Respondents, finding that Ontario lacked the authority to take up lands within the Keewatin Lands without first obtaining federal approval. She reviewed the history of Treaty 3, noting that the Government of Canada needed the treaty more than the Ojibway because of its need to build a nationwide railway. She found the Ojibway relied on the federal government to implement and enforce the Treaty 3 promises. She found it was contemplated by the parties to Treaty 3 that the Government of Canada would need to police Ontario’s taking up of lands to preserve and protect Ojibway harvesting rights. She considered this a proper exercise of federal jurisdiction over Indians and land reserved for Indians under section 91(24) of the Constitution Act, 1867.  The decision was appealed.

Issues

  1. Did the trial judge err in determining that Ontario did not have the authority to “take up” tracts of land for forestry, within the meaning of Treaty 3, so as to limit the rights of the Plaintiffs to hunt or fish as provided for in Treaty 3?
  2. Did the trial judge err in finding that that the doctrine of interjurisdictional immunity applied, precluding Ontario from justifiably limiting or extinguishing the harvesting rights of the Respondents?

Holding

The appeal was allowed. The Court held that the answer to the first question was “yes” and that the second question did not require a response. It was determined that Ontario can take up land pursuant to Treaty 3 as a representative of the Crown, subject to fulfilling its duty to consult with the Aboriginal Peoples whose rights would be affected. Because the answer to the first question was in the affirmative, the Court did not find it necessary to discuss the second question in appeal.

Reasons

In coming to its decision, the Court undertook an extensive analysis of the first question by addressing three subsidiary issues:

  1. Did the trial judge err in holding that Ontario cannot authorize the taking up of land in the Keewatin Lands, within the meaning of the harvesting clause, without Canada’s approval or permission?
  2. Did the trial judge err in her interpretation of the 1891 Legislation, the 1894 Agreement and the 1912 Legislation?
  3. Does Ontario’s use of the taking up clause, short of infringement, engage s. 91(24)?

With regard to the first issue, the Court found that the trial judge erred in her conclusion that the harvesting clause did not allow Ontario to take up land under the Treaty without federal approval. The Court found that the judge’s reasoning belied the evidence presented as to the constitutional context in which the Treaty was signed. In particular, the Court referred to Ontario’s jurisdiction over the management of lands under section 109 of the Constitution Act, 1867, as well as the decision in St. Catherine’s Milling and Lumber Co v The Queen to provide legal direction as to the constitutional context in which Treaty 3 was signed:

St. Catherine’s Milling resolved a very hard fought battle between Canada and Ontario over valuable resources - which level of government had the right to profit from the resources and which level of government had the right to control the development and management of those resources. The Privy Council categorically denied Canada’s claim and clearly affirmed Ontario’s full jurisdiction to take up lands for development. Canada’s jurisdiction to legislate in relation to “Indians, and Lands reserved for the Indians” was said to be “not in the least degree inconsistent” with Ontario’s right to manage and benefit from the lands. [Emphasis in original.]
 
We conclude that the trial judge’s finding that the Commissioners who negotiated Treaty 3 qualified Ontario’s constitutional rights and responsibilities by agreeing to a requirement that Canada interpose itself and approve the “taking up” of lands is fundamentally at odds with this established constitutional framework and cannot be sustained.

On this basis, the Court then turned to Treaty 3 and the interpretation of the harvesting clause. In its view, it could not find an interpretation requiring federal approval for the taking up of land. In fact, the Court found that Ontario had the same ability as the federal government to take up land as a representative of the Crown in Canada under the Treaty:

The Ojibway’s Treaty partner is the Crown, not Canada. Canada is not a party to the Treaty. The Treaty promises are made by the Crown, not by a particular level of government. The Ojibway may look to the Crown to keep the Treaty promises, but they must do so within the framework of the division of powers under the constitution. As was specifically held in St. Catherine’s Milling, Canada, Morris and the other Commissioners who negotiated the Treaty had no authority to depart from the constitution’s allocation of powers and responsibilities and no power to deprive Ontario of the beneficial ownership that devolved to the province when Ontario’s borders were expanded.

In discussing the second issue, the Court looked at several statutes that were adopted after Treaty 3 was signed to determine whether the trial judge’s finding had a sufficient basis in law. In particular, the Court looked at legislation enacted by both Ontario’s Legislative Assembly and Parliament in 1891 settling the question of jurisdiction over Indian Lands in Ontario (“1891 Legislation”), an Agreement on the same issues that was executed by Ontario and the federal government in 1894 (1894 Agreement”), as well as legislation passed in 1912 which settled Ontario’s boundaries and asserted that most land in the Keewatin District would be situated in Ontario (1912 Legislation”). Looking at the trial judge’s conclusion of federal approval for taking up lands under the harvesting clause with the relevant provisions of these statutes, the Court found that the 1891 Legislation and the 1894 Agreement merely confirmed Ontario’s right to take up under Treaty 3 without Canada’s approval or permission in the Disputed Territory, and that “once the Keewatin Lands became part of Ontario in 1912, Ontario stepped into the shoes of Canada for the purposes of Treaty 3’s harvesting clause in the Keewatin Lands.”

With regard to the third subsidiary issue, the Court’s conclusion that Ontario has jurisdiction to take up lands pursuant to the harvesting clause in Treaty 3 rendered its discussion of the issue very brief. The Court relied on the Supreme Court’s reasons in Canada Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) to support its conclusion that Ontario had jurisdiction to take up Crown land without being subject to the federal approval under the latter’s jurisdiction over Indians and Indian land under section 94(24) of the Constitution Act, 1867:

The trial judge appears to consider that federal jurisdiction over treaty rights, which properly comes within s. 91(24) jurisdiction, encompasses a continuing role for Canada in respect of the taking up of lands for provincial purposes in lands ceded by treaty.
 
With respect, such an expansion of s. 91(24) jurisdiction would render illusory provincial jurisdiction over the disposition and management of public lands and forests under ss. 109, 92(5) and 92A [of the Constitution Act, 1867]. As we have already explained, this would be contrary to the decision of the Privy Council in St. Catherine’s Milling and that of the Supreme Court of Canada in Smith [v Canada, [1983] 1 SCR 554]. It would also be contrary to the Supreme Court’s emphasis on balanced federalism and the interdiction that “a federal head of power cannot be given a scope that would eviscerate a provincial legislative competence”.
 
Turning to Mikisew, the trial judge’s conclusion that Canada has a residual s. 91(24) supervisory authority over Ontario’s use of the taking up clause is at odds with the principles set out by the Supreme Court of Canada in that case.
 
It is important to distinguish between a provincial taking up that would leave no meaningful harvesting right in a First Nation’s traditional territories from a taking up that would have a lesser impact than that. The former would infringe the First Nations’ treaty rights, whereas the latter would not. Where it is claimed that a taking up will infringe a treaty right, Mikisew makes it clear that the remedy is to bring an action for treaty infringement: see para. 48. An action for infringement does not engage Canada in a supervisory role.

Finally, the Court also elaborated upon the consequences that would attach to Ontario’s right to take up land. In essence, the Court was careful to point out that Ontario’s jurisdiction in this area is subject to the same obligations outlined in the Treaty, as well as in its fiduciary duty as the Crown to the Aboriginal Peoples whose rights would be infringed or affected in taking up land. In other words, the Court stressed that any taking up of land by Ontario would come with the duty to consult Aboriginal Peoples and accommodate harvesting rights that may be affected.

Therefore, the appeal was allowed.

The decision can be found here:
http://www.ontariocourts.ca/decisions/2013/2013ONCA0158.htm

Jennifer Radford, Partner
Ottawa Office
Direct Tel: 613.787.3595
Direct Fax: 613.230.8842
Email: jradford@blg.com

Kenneth J. Tyler, Partner
Aboriginal Law
BLG Vancouver
604-640-4185
ktyler@blg.com

Author

Kenneth J. Tyler 
KTyler@blg.com
604.640.4185

Other Author

Jennifer Radford

Expertise

Aboriginal Law