Ontario Civil


Aboriginal Peoples

TREATIES
Finding that two-step authorization process had to be followed was wrong in both law and fact

This was appeal of trial judge’s decision that defendant Ontario did not have right to take up land and limit harvesting rights without first obtaining Canada’s approval. In 1873, Canada and Ojibway entered into treaty 3 in respect of large tract of land. By entering into treaty 3 Ojibway surrendered interest in land in exchange for reserves, payments and other benefits. Treaty 3 contained harvesting clause by virtue of which Ojibway retained right to pursue hunting and fishing throughout surrendered tracts except on tracts that were required or taken up for settlement, mining, lumbering or other purposes by government of Canada. Since 1912, almost all of treaty 3 territory had been within borders of Ontario. Plaintiffs were members of Grassy Narrows First Nation. In 1997, Ontario issued sustainable forest licence that enabled defendant A.C., large pulp and paper manufacturer, to carry out clear-cut forestry operations on certain land that fell within portion of treaty 3 territory. Plaintiffs applied for judicial review to set aside licences, permits, management plans and work schedules Ontario granted to A.C.. Divisional Court quashed application for judicial review but permitted plaintiffs to bring action raising same issues. Trial judge determined that Ontario did not have authority within part of land subject to treaty 3 to exercise right to take up tracts of land for forestry such as to limit rights of plaintiffs to hunt or fish as provided for in treaty 3. Trial judge determined that Ontario did not have authority pursuant to division of powers to justifiably infringe rights of plaintiffs to hunt and fish as provided for in treaty 3. Appeal allowed. Trial judge’s finding that commissioners who negotiated treaty 3 qualified Ontario’s constitutional rights and responsibilities by agreement to requirement that Canada interpose itself and approve taking up of land was fundamentally at odds with established constitutional framework and could not be sustained. Ojibway’s treaty partner was Crown not Canada. Canada was not party to treaty. Treaty promises were made by Crown and not by particular level of government. Commissioners who negotiated treaty had no authority to depart from constitution’s allocation of powers and responsibilities and had no power to deprive Ontario of beneficial ownership that devolved to province when boarders were expanded. Taking up clause also had to be interpreted in light of process of constitutional evolution. What changed with constitutional evolution was level of government on whose advice Crown acted. Trial judge erred in failing to apply governing constitutional principles in interpreting taking up clause. Trial judge’s interpretation could be not be reconciled with text of harvesting clause. Text of clause did not contemplate two-step approval involving two levels of government for taking up tracts of land for settlement, mining, lumbering or other purposes. Trial judge’s interpretation produced process that was unnecessary, complicated and likely unworkable. Two-step process was unnecessary to protect aboriginal treaty harvesting right because when Crown, through Ontario, took up land it must respect treaty right. Trial judge erred in law in interpreting taking up clause. Trial judge’s finding that two-step authorization process had to be followed was wrong in both law and fact. Trial judge erred in finding that Canada’s s. 91(24) of Constitution Act, 1982, jurisdiction over Indians gave Canada residual and continuing role in respect of Ontario’s use of taking up provision. Ontario was not subject to federal supervision in carrying out its obligations.

Keewatin v. Ontario (Minister of Natural Resources) (Mar. 18, 2013, Ont. C.A., Robert J. Sharpe J.A., E.E. Gillese J.A., and R.G. Juriansz J.A., File No. CA C54314, C54326, C54348) Decision at 206 A.C.W.S. (3d) 246 was reversed.  226 A.C.W.S. (3d) 617.

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