Supreme Court of Canada upholds Ontario’s right to issue development permits on aboriginal treaty land – by Drew Hasselback and Peter Koven (National Post – July 12, 2014)

The National Post is Canada’s second largest national paper.

Ontario’s natural resource companies welcomed a ruling Friday by the Supreme Court of Canada that confirms provinces have the authority to issue logging, mining and other development permits on aboriginal treaty lands.

In doing so, the high court rejected a claim from Grassy Narrows First Nation, which argued that Ontario needed the federal government’s approval before issuing a logging permit.

Had the Supreme Court ruled in favour of Grassy Narrows in the so-called Keewatin case, many permits issued in Ontario that did not involve the federal government could have been subject to challenge by First Nations.

“If the decision had gone the other way, and in light of [last month’s] Roger William case, there would have been great uncertainty with respect to aboriginal title, aboriginal treaties and aboriginal law in Ontario,” said Neal Smitheman, a partner at Fasken Martineau DuMoulin LLP, referring to the Supreme Court judgment in British Columbia that changed the way governments must deal with First Nations over land where aboriginal title is claimed.

Friday’s top court ruling involved the interpretation of Treaty 3, a 141-year-old agreement that covers about 142,000 square kilometres in what is now northwestern Ontario and eastern Manitoba. The treaty says the “Dominion of Canada” has the right to “take up” lands covered by the treaty for various economic purposes, like forestry and mining.

Grassy Narrows argued in court that a literal reading of the treaty meant that anyone seeking a development permit on treaty lands needs to go through a “two-step” approval, one from the province and one from Ottawa. All seven Supreme Court justices rejected that argument.

“Ontario alone has the ability to take up Treaty 3 land and regulate it in accordance with the treaty and its obligations,” Chief Justice Beverley McLachlin wrote. “A two-step process involving federal approval for provincial taking up was not contemplated by Treaty 3.”

Grassy Narrows said it was disappointed the court refused to recognize the “special role that the federal government has in protecting our Treaty 3 from provincial and corporate actions.”

Yet the court’s decision doesn’t grant the province carte blanche in issuing permits. Instead, it confirms that the Crown must consult with aboriginals and accommodate their needs before taking any action that infringes on native treaty lands.

For the rest of this article, click here: