Ontario’s ‘win’ in Grassy Narrows comes at a high cost – by Bruce McIvor (Troy Media – July 13, 2014)


Bruce McIvor is Principal of First Peoples Law Corporation .

VANCOUVER, BC, Jul 13, 2014/ Troy Media/ – The Supreme Court of Canada’s recent Grassy Narrows (Keewatin) decision places a heavy legal burden on provincial governments when they seek to exploit Indigenous lands covered by the historical treaties of Canada. The challenge now is for First Nations to hold the provinces to account.

What the case was about?

Between 1871 and 1923, Canada negotiated 11 numbered treaties with First Nations across the country, including the Anishinaabe of Treaty 3 in northwestern Ontario and eastern Manitoba. With slight variations, each treaty allowed for the ‘taking up’ of lands for non-Indigenous settlement, mining, lumbering and other purposes. The primary issue inGrassy Narrowsis what limits exist on Ontario’s ability to exercise the taking up clause in Treaty 3.

After one of the longest and most thorough treaty interpretation trials in Canadian history, Justice Mary Anne Sanderson of the Ontario Superior Court of Justice confirmed the Anishinaabe understanding that Treaty 3 was made with Canada, not Ontario. This, coupled with Canada’s exclusive responsibility for “Indians, and lands reserved for the Indians” under the Constitution, meant that only Canada can issue forestry authorizations that significantly affect the exercise of treaty rights.

A unanimous Ontario Court of Appeal disagreed. Relying heavily on the Privy Council’s 1888 decision in St. Catherine’s Milling, the Court held that Ontario’s ownership of Crown lands in Treaty 3 left no role for the federal government in land-use decisions affecting treaty rights. To involve Canada, said the Court, would create an “unnecessary, complicated, awkward and likely unworkable” process.

Grassy Narrows First Nation and Wabauskang First Nation both appealed to the Supreme Court. They argued that the Court of Appeal erred by failing to confirm the federal government’s role in implementing Treaty 3 based on both the specific wording of the treaty and Canada’s exclusive responsibility for First Nations under the Constitution. But the Supreme Court confirmed Ontario’s unilateral authority to take up lands in the Keewatin area of Treaty 3 without federal government supervision.

The Court also confirmed Ontario has all the constitutional obligations of the Crown, is bound by and must respect the
Treaty, must fulfill treaty promises and must administer ‘Crown’ lands subject to the terms of the Treaty and First
Nations’ interest in the land.

Consequently, Ontario’s exercise of its powers must conform with the honour of the Crown and is subject to the
Crown’s fiduciary duties when dealing with Aboriginal interests.

When lands are intended to be taken up by Ontario, the province must consult, and if appropriate accommodate, First Nation interests beforehand. Ontario must also deal with First Nations in good faith and with the intention of substantially addressing their concerns. It cannot exclude the possibility of accommodation from the outset.

For the rest of this column, click here: http://www.troymedia.com/2014/07/13/ontarios-win-in-grassy-narrows-has-come-at-a-high-cost/