Environmental, Indigenous and Natural Resources Blog

In a decision being widely reported as a victory for aboriginal interests, the Ontario Superior Court of Justice has issued its reasons in Keewatin v. Ontario (Minister of Natural Resources), 2011 ONSC 4801.  The case turns on wording of the “taking up” clause in Treaty 3, one of the historic treaties in Ontario that were negotiated in the late 1800s and early 1900s.  (In general terms, Treaty 3 covers the extreme southwestern corner of Ontario, west of Lake Superior towards the Manitoba border.)  The issue arose in the context of logging activities authorized by the Province, which were alleged to potentially affect the treaty harvesting rights of members of the Grassy Narrows First Nation, a signatory to Treaty 3.

The “taking up” or harvesting rights clauses in most historic treaties contain wording to the effect that the rights apply throughout the lands subject to the treaty.  However, the wording of the taking up clause in Treaty 3 differs importantly: it says that the rights apply throughout the treaty area “… 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 any of the subjects thereof duly authorized therefore by the said Government”.  The italicized words were the focus of the case: did they mean that only the federal government could authorize the use of lands that would interfere with the exercise of treaty rights, or could the Province of Ontario also authorize such uses of lands?

In short, the trial judge held that the “savings clause” in Treaty 3 should be interpreted literally, as this was consistent not only with the First Nations’ understanding of what was promised, but also with the intention of the federal government officials who negotiated Treaty 3.  The trial judge held that Ontario does not have the power to authorize activities which significantly interfere with Treaty 3 harvesting rights.  For activities which do significantly interfere, the judge held that the federal government must be involved in authorizing the activity, due to the express wording of Treaty 3.

The decision dealt only with the legal question of the Province’s jurisdiction to significantly interfere with Treaty 3 rights.  No determination was made as to whether the forestry activities in question actually do significantly interfere — that will be determined in future steps in the litigation if it proceeds.  In addition, no formal order has yet been made by the court, which invited submissions from the parties on that point.

However, there is no doubt the decision is a significant one.  It significantly limits the Province’s jurisdiction to authorize natural resource development activities that would impact on Treaty 3 rights.  It also significantly expands the potential jurisdiction of the federal government over activities in the Treaty 3 area that would otherwise be subject to provincial jurisdiction only — such as decisions to authorize forestry, mining or other provincially-regulated resource development activities.  For developers with interests in the Treaty 3 area, the decision will create great uncertainty as to the validity of tenures and authorizations issued by the Province of Ontario over the past 100+ years.

Although no announcement has been made, it is widely expected that the trial decision will be appealed to the Ontario Court of Appeal and eventually to the Supreme Court of Canada; therefore the trial judge’s comments are not necessarily the last word on the meaning of the Treaty 3 taking up clause.