The Supreme Court of Canada held that the Province of Ontario had the authority to take up lands for settlement, lumbering, mining, or other purposes within the boundaries of Treaty Number Three without first obtaining the approval of the Federal Government.

By the terms of Treaty 3, made in 1873, the Ojibway First Nations of what is now northwestern Ontario and of a very small area in what is now southeastern Manitoba, yielded ownership of their Aboriginal interests in approximately 55,000 sq. miles in return for guaranteed treaty rights.  Among those treaty rights, in the words of the text of the Treaty, was:

the right to pursue their avocations of hunting and fishing throughout the tract surrendered” … 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 therefore by the said Government.

The broad issue in the case was whether the Government of the Province of Ontario had the authority to take up lands and thus reduce the area in which the Ojibway exercised their treaty right to hunt and fish in light of this express treaty language.

When Treaty 3 was negotiated, the northern and western boundaries of the Province of Ontario were very much in dispute.  Ontario claimed a western boundary lying due north of the headwaters of the Mississippi River from the 49th parallel to the southern limit of the watershed of the Albany River system.  The federal government, on the other hand insisted that Ontario’s western boundary was located due north of the junction of the Mississippi and Ohio Rivers and the western and northern limits of the watershed of Lake Superior.  This dispute was ultimately resolved in Ontario’s favour by an 1878 arbitral award that was confirmed by a reference to the Judicial Committee of the Privy Council in London in 1884.  In 1891, the Privy Council’s decision was confirmed by reciprocal legislation: An Act for the settlement of certain questions between the Governments of Canada and Ontario respecting Indian Lands (1891) (U.K.), 54& 55 Vict., c. 5; An Act for the settlement of questions between the Governments of Canada and Ontario respecting Indian Lands (1891) (Ont.) 54 Vict., c. 3 (the “1891 Legislation”).  The 1891 Legislation incorporated a draft agreement between Canada and Ontario that was ultimately executed in 1894 (the “1894 Agreement”). Article 1 of the 1894 Agreement provided that as the disputed territory belonged to Ontario, “the rights of hunting and fishing by the Indians throughout the tract surrendered, not including the reserves to be made thereunder, do not continue with reference to any tracts which have been, or from time to time may be, required or taken up for settlement, mining, lumbering or other purposes by the Government of Ontario”.

A small portion of the Treaty 3 lands, referred to as the “Keewatin Area”, was, however, north of the lands claimed by Ontario in 1873.  After the transfer of Rupert's Land from the Hudson’s Bay Company to Canada in 1870, the Keewatin Area remained under the undisputed authority of Canada until 1912, when by the operation of the Ontario Boundaries Extension Act, S.C. 1912, c. 40 (the “1912 Legislation”) it, along with the lands stretching north to the shores of Hudson’s Bay, were added to Ontario.  After 1912, Ontario issued licences for the development of lands in the Keewatin Area.

In 1997, Ontario’s Minister of Natural Resources issued a licence to the corporate predecessor to Resolute FP Canada Inc., a large pulp and paper manufacturer, to clear-cut Crown lands situated within the Keewatin Area. In 2005, the Grassy Narrows First Nation launched an action to set aside the forestry licence on the basis that it violated their Treaty 3 harvesting rights.  In 2006, the action was divided into two phases.  The first phase was to deal with authority of Ontario to “take up” tracts of land within the Keewatin area under the terms of Treaty 3, and to infringe treaty rights in light of the Federal Governments exclusive authority in relation to Indians and lands reserved for Indians under the Constitution Act, 1867.  The second phase was to deal with the question of whether the forestry licence was a justifiable infringement of Grassy Narrows’ Treaty rights.  This appeal dealt only with the first phase of the trial.  The second phase has not yet commenced.

Negotiation of Treaty 3

The Supreme Court of Canada gave a brief history of the negotiation of Treaty 3:

[6] In 1868, Canada needed to complete a treaty with the Ojibway in order to fulfill its promise to build a transcontinental railway to the west and to establish an immigrant travel route across the Treaty 3 lands.
[7] Treaty negotiations were attempted in 1871 and 1872, but failed. In 1873, intent on securing agreement, Canada appointed three new treaty commissioners: Alexander Morris, a founder of Confederation and the Lieutenant Governor of Manitoba, Joseph Provencher, a federal Indian agent, and Simon Dawson, who supervised the construction of the Dawson Route.
[8] The trial judge found that the Ojibway Chiefs who were key players in the negotiation of Treaty 3 were in no rush to make a deal. They were under no immediate threat, as settlers were only passing through their territory, not settling on it. They were only prepared to cooperate if they could retain their way of life, particularly their traditional hunting, fishing and trapping activities.

[9] The negotiations lasted from October 1 to October 3, 1873. There are several historical accounts of the negotiations leading to the conclusion of the treaty: Morris’s official report on the making of the treaty, a record of discussions published in The Manitoban newspaper, handwritten notes prepared by Dawson during the negotiations, the notes taken on behalf of the Ojibway Chiefs by a Métis hired by them and a record of negotiations published in The Manitoba Free Press.

[10] On October 3, 1873, the parties signed Treaty 3. The Ojibway ceded the Treaty 3 territory to Canada in return for reserves, annuities, and goods. The treaty also provided that the Ojibway would retain harvesting rights on the non-reserve land within the Treaty 3 territory until the land was “taken up”.

The trial judge concluded that Ontario had no authority to take up lands within the Keewatin Area so as to limit harvesting rights without first obtaining Canada’s approval.   She found that the taking-up clause of Treaty 3 had imposed a two-step process involving federal approval for the taking up of Treaty 3 lands, and that neither the 1891 nor the 1912 Legislation had altered this process with respect to the Keewatin Area.  She also held that the doctrine of interjurisdictional immunity prevented provinces from infringing treaty rights, even if the infringement could be justified.

The Ontario Court of Appeal reversed these judgments, and Grassy Narrows was granted leave to appeal to the Supreme Court of Canada. 

Chief Justice McLachlin, speaking for a unanimous Court, rejected the trial judge’s conclusion that the terms of Treaty 3 required federal involvement in the authorization of private parties to utilize lands ceded by Treaty 3.  Instead she held that Ontario, and Ontario alone, had the power to take up such lands, basing her conclusion on the provisions of the Canadian Constitution, the terms of Treaty 3, and the provisions of the 1891 and 1912 Legislation.

Constitutional Provisions

The Chief Justice found that section 109 of the Constitution Act, 1867 established conclusively that Ontario holds the beneficial interest in the Keewatin lands and the resources on or under those lands. In addition, she held that s. 92(5) (provincial legislative power over the “Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon”) and s. 92A (provincial legislative power over non-renewable natural resources, forestry resources, and electrical energy) of the Constitution Act 1867 gave Ontario the power to take up lands in the Keewatin area under Treaty 3 for provincially regulated purposes, such as forestry.  She added:

[32] The view that only Canada can take up, or authorize the taking up of, lands under Treaty 3 rests on a misconception of the legal role of the Crown in the treaty context. It is true that Treaty 3 was negotiated with the Crown in right of Canada. But that does not mean that the Crown in right of Ontario is not bound by and empowered to act with respect to the treaty.

[33]      … it is abundantly clear that the Commissioners who represented Her Majesty, whilst they had full authority to accept a surrender to the Crown, had neither authority nor power to take away from Ontario the interest which had been assigned to that province by the Imperial Statute of 1867. ...

[35] The promises made in Treaty 3 were promises of the Crown, not those of Canada. Both levels of government are responsible for fulfilling these promises when acting within the division of powers under the Constitution Act, 1867.  Thus, when the lands covered by the treaty were determined to belong to the Province of Ontario, the Province became responsible for their governance with respect to matters falling under its jurisdiction … subject to the terms of the treaty.  It follows that the Province is entitled to take up lands under the treaty for forestry purposes. ...

[37]      Section 91(24) does not give Canada the authority to take up provincial land for exclusively provincial purposes, such as forestry, mining, or settlement. Thus, s. 91(24) does not require Ontario to obtain federal approval before it can take up land under Treaty 3.  While s. 91(24) allows the federal government to enact legislation dealing with Indians and lands reserved for Indians that may have incidental effects on provincial land, the applicability of provincial legislation that affects treaty rights through the taking up of land is determined by Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, and s. 35 of the Constitution Act, 1982.

Interpretation of Treaty 3

The Chief Justice then pointed out that there was nothing in the text of the Treaty or in the record of negotiations that suggested that any two-step process was required before lands could be taken up for forestry, mining, or other purposes:

[39] The clause does not contemplate a two-step process involving both levels of government. It only refers to the Government of the Dominion of Canada. The treaty, as discussed, was between the Crown — a concept that includes all government power — and the Ojibway. The reference to Canada reflects the fact that the lands at the time were in Canada, not Ontario. Canada and Canada alone had beneficial ownership of the lands and therefore jurisdiction to take up the lands. This said, Treaty 3 was negotiated against the backdrop of a boundary dispute between Ontario and Canada. The possibility of provincial acquisition of the lands was patent. It follows that if the drafters of the treaty wanted Canada to have a continuing supervisory role in taking up lands under the treaty, the treaty would have said this.

She endorsed the Court of Appeal’s view that the trial judge had committed overriding and palpable errors in her factual finding that a two-step federal and provincial process was required before lands could be taken up.

[40]      First, there is no evidence that Morris communicated to the Ojibway any intention to require a two-step process, or that he intentionally drafted the taking-up clause to require such a process — assuming that Morris’s subjective intention is even relevant here. Second, there is no evidence that the Ojibway intended or insisted upon a two-step process. Third, a provisional boundary agreement reached by Canada and Ontario in 1874 to deal with the administration of the treaty lands pending the settlement of the boundary dispute reflects an understanding that the right to take up lands attached to the level of government that enjoyed beneficial ownership of those lands.  Indeed, the agreement provided that if the provisional boundary was subsequently determined to be wrong, the government found to have jurisdiction over the lands would ratify any patents that had been issued by the other government. Lastly, while not determinative, I would note that Ontario has exercised the power to take up lands for a period of over 100 years, without any objection by the Ojibway. This also suggests that federal approval was never considered part of the treaty.

Legislation Dealing With Treaty 3 Lands

The 1894 Agreement between Canada and Ontario, incorporated in the 1891 Legislation, provided that:

1. With respect to the tracts to be, from time to time, taken up for settlement, mining, lumbering or other purposes and to the regulations required in that behalf, as in the said treaty mentioned, it is hereby conceded and declared that, as the Crown lands in the surrendered tract have been decided to belong to the Province of Ontario, or to Her Majesty in right of the said Province, the rights of hunting and fishing by the Indians throughout the tract surrendered, not including the reserves to be made thereunder, do not continue with reference to any tracts which have been, or from time to time may be, required or taken up for settlement, mining, lumbering or other purposes by the Government of Ontario or persons duly authorized by the said Government of Ontario; and that the concurrence of the Province of Ontario is required in the selection of the said reserves.

Chief Justice McLachlin commented:

[42] This expressly provides that Ontario has the right to take up the lands. Again, there is no mention of any continuing supervisory role for Canada in the process, or any two-step federal/provincial process. I agree with the Court of Appeal that the 1894 Agreement confirmed Ontario’s right to take up Treaty 3 land by virtue of its control and beneficial ownership of the territory. It did not amend Treaty 3.

With specific reference to the Keewatin Area, which was not dealt with in the 1894 Agreement, the 1912, Ontario Boundaries Extension Act provided:

2. ...
(a) That the province of Ontario will recognize the rights of the Indian inhabitants in the territory above described to the same extent, and will obtain surrenders of such rights in the same manner, as the Government of Canada has heretofore recognized such rights and has obtained surrender thereof, and the said province shall bear and satisfy all charges and expenditure in connection with or arising out of such surrenders;
(b) That no such surrender shall be made or obtained except with the approval of the Governor in Council;
(c) That the trusteeship of the Indians in the said territory, and the management of any lands now or hereafter reserved for their use, shall remain in the Government of Canada subject to the control of Parliament.

Chief Justice Mclachlin commented:

[44] The 1912 transfer of lands confirmed that Ontario would stand in Canada’s shoes with respect to the rights of the Indians in those lands (s. 2(a)). The reference to the “rights of the Indian inhabitants” in s. 2(a) includes the harvesting rights under Treaty 3. As the Court of Appeal said, “[t]his condition contemplates, therefore, that Ontario could take up Keewatin lands under the treaty only to the same extent that Canada could validly do so prior to 1912” (para. 198). Section 2(b) provided that Canada’s approval was required for the surrender of Aboriginal rights — not the taking up of land pursuant to the taking-up clause. The evidence at trial was that the reference to the surrender of rights is a reference to lands not ceded by treaty (at para. 1082). Finally, s. 2(c) provided that the trusteeship of Indians and the management of reserved lands would remain with the Government of Canada, subject to the control of Parliament.

[45] In my view, this legislation means that the federal government would remain responsible for Indians and lands reserved to Indians under its power over Indians pursuant to s. 91(24) of the Constitution Act, 1867, but that the taking up of other lands within the territory would be for the Province of Ontario alone. Nothing in the legislation contemplates a two-step process involving both levels of government.

[47]      …[T]he wording of s. 2(a) in the 1912 Legislation constitutes an explicit acknowledgement that Ontario could henceforward do whatever Canada had done before it, i.e. take up lands. The fact that the words “taking up” were not used in the 1912 Legislation does not diminish the import of s. 2(a).

[48] Nor did transferring to Ontario the right to take up lands within the Keewatin area amend Treaty 3, as the appellants suggest. The treaty allowed for the taking up of land by the beneficial owner of the land — after 1912, this was Ontario. Changing the beneficial owner of the land and the emanation of the Crown responsible for dealing with the lands conveyed did not amend the treaty.

The Honour of the Crown

In reaching the conclusion that Ontario had the unilateral power to authorize the taking up of lands under Treaty 3, the Chief Justice was careful to add that the power was not unconditional. In exercising its jurisdiction over Treaty 3 lands, the Province of Ontario was bound to act in conformity with the honour of the Crown, and was subject to the fiduciary duties that lie on the Crown in dealing with Aboriginal interests. This meant that for land to be taken up under Treaty 3, the harvesting rights of the Ojibway over the land must be respected, and was subject to the Crown’s duty to consult and, if appropriate, accommodate First Nations’ interests beforehand.  She added:

[52] Where a province intends to take up lands for the purposes of a project within its jurisdiction, the Crown must inform itself of the impact the project will have on the exercise by the Ojibway of their rights to hunt, fish and trap, and communicate its findings to them. It must then deal with the Ojibway in good faith, and with the intention of substantially addressing their concerns … . The adverse impact of the Crown’s project (and the extent of the duty to consult and accommodate) is a matter of degree, but consultation cannot exclude accommodation at the outset. Not every taking up will constitute an infringement of the harvesting rights set out in Treaty 3. This said, if the taking up leaves the Ojibway with no meaningful right to hunt, fish or trap in relation to the territories over which they traditionally hunted, fished, and trapped, a potential action for treaty infringement will arise … .

Interjurisdictional Immunity

Based upon the reasoning of the Court in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, Chief Justice McLachlin concluded that the doctrine of interjurisdictional immunity had no application to Ontario’s constitutional capacity to authorize the taking up of lands under Treaty 3.  The constitutional limits applicable to the Province in that regard were those imposed by the Honour of the Crown and section 35 of the Constitution Act, 1982.

Conclusion

The appeal was accordingly dismissed.  Prior to the hearing of the appeal, the Grassy Narrows First Nation had been granted an advanced costs award.  With the consent of Ontario and in the absence of opposition from Canada, costs of the appeal were also awarded to the appellant Wabauskang First Nation.

Author

Kenneth J. Tyler 
KTyler@blg.com
604.640.4185

Expertise

Aboriginal Law