The Supreme Court of Canada granted a leave application filed by the Grassy Narrows First Nation, on behalf of its members, in the Keewatin appeal. This proceeding involves whether 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.

The March 2013 decision of the Ontario Court of Appeal (2013 ONCA 158) was summarized in our e-Newsletter of 8 May 2013. The trial decision was reported at [2012] 1 C.N.L.R. 13.

A summary of the case found on the SCC’s website was as follows:

Constitutional law ― Aboriginal law — Treaty rights — Interpretation of treaty — Division of powers — Power to take-up lands — Inter-jurisdictional immunity — Treaty made between Canada and applicants’ ancestors including clause providing entitlement to take up lands as required, subject to right to hunt and fish on lands — Applicants’ initiating action after Ontario issued licences for forestry operations on portion of lands subject to Treaty 3 and added to Ontario in 1912 — Trial judge holding that (i) Ontario did not have authority regarding treaty lands to take up tracts of lands so as to limit treaty hunting and fishing right, (ii) Ontario was required to obtain approval of federal government before proceeding in this manner, and (iii) Ontario did not have authority, under constitutional powers granted to it, to infringe applicants’ treaty right — Court of Appeal allowing appeal, holding that Ontario has exclusive jurisdiction over lands and concluding that Ontario was required to respect Treaty rights — Whether Court of Appeal erred in holding that Ontario’s jurisdiction over provincial lands and resources was exclusive of federal jurisdiction over “Indians and Lands Reserved for Indians” and that it is entitled to take up lands so as to infringe applicants’ treaty rights, without requiring Canada’s approval — Whether Court of Appeal erred in law by holding that doctrine of constitutional evolution operates to eliminate Canada’s responsibilities with respect to harvesting rights set out in Treaty — Whether Court of Appeal failed to pay appropriate deference to findings of fact of trial judge — Treaty 3

In 1873, Canada and the Ojibway entered into Treaty 3 in respect of a large tract of land situated in what is now northwestern Ontario and eastern Manitoba. That Treaty contained a “harvesting clause” by virtue of which the Ojibway retained the right to hunt and fish throughout the tract of land surrendered except on tracts “required or taken up for . . . lumbering or other purposes by [the Queen’s] said Government of the Dominion of Canada or by any of the subjects thereof duly authorized therefore by the said Government”. Both before and after this Treaty was concluded, there was a longstanding dispute between Canada and Ontario as to whether large portions of Treaty 3 lands fell within the boundaries of Ontario. Since 1912, all of the Treaty lands at issue are within the borders of Ontario.

In 2005, the Grassy Narrows First Nation launched an action after Ontario’s Minister of Natural Resources issued a sustainable forest licence enabling Abitibi-Consolidated Inc. to carry out clear-cut forestry operations on Keewatin Lands which fall within a portion of Treaty 3 territory added to Ontario in 1912. The First Nation sought a finding that Ontario had violated the Treaty 3 harvesting clause by significantly interfering with the applicants’ harvesting rights under the Treaty.

That action was divided into two phases, the first phase involving the trial of two questions of law: (1) Whether Ontario has the authority to exercise the right to “take up” tracts of land for forestry so as to limit the rights of members of the Grassy Narrows First Nation to hunt or fish as provided for in Treaty, and (2) If the answer is no, does Ontario have the authority under the Constitution Act, 1867 to justifiably infringe the rights of the applicants to hunt and fish as provided for in the Treaty?

The second phase of litigation has not yet commenced.

The Supreme Court of Canada granted the leave application with costs.

Scott Kerwin, Partner
Aboriginal Law


Scott Kerwin


Aboriginal Law