Grassy Narrows v Ontario: A Legal Battle Against Logging Lost, The Political Fight Continues
In Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48, the Supreme Court of Canada (“SCC”) unanimously determined that Ontario has the jurisdiction under the Crown to take up land covered by the Ontario Boundaries Extension Act, SC 1912, c 40, s 2, Treaty No. 3 (1873) (“Treaty 3”), thus limiting First Nation harvesting rights. In the 1873 signing of Treaty 3, the Ojibway yielded ownership of their territory to Canada and received the right to harvest the non-reserve lands that they had yielded in exchange until such lands were “taken up” for settlement, industry, or other government purposes. This land (the Keewatin area) was later annexed to Ontario in 1912.
Descendants of the Ojibway, the Grassy Narrows First Nation has been at the forefront of legal and political action to regain control of traditional lands in Northwestern Ontario and Manitoba and stop logging activities in the area. In 1997, a forestry licence was issued by Ontario to Abitibi-Consolidated Inc. (now Resolute FB Canada Inc.), a large pulp and paper company, to clear cut in the area. In 2005, the Grassy Narrows brought forward an action to challenge this forestry licence in an effort to stop the logging.
Grassy Narrows was successful at the initial trial, as the trial judge determined that Treaty 3 spelled out a two-step process, which required federal approval for the taking up of the land. In addition, this two-step process was necessary given the limitations on harvesting rights that taking up lands would involve.
A case management order to divide the trial into two parts was made. The first part addressed two threshold questions: (1) Does Ontario have the authority to “take up” land within the Keewatin area such that Treaty 3 harvesting rights are limited? and (2) If the answer to the first question is no, does Ontario have the authority under the Constitution Act, 1867 to justifiably infringe the appellants’ treaty rights? The second phase of the trial had not yet commenced.
The trial decision was overturned at the Ontario Court of Appeal, as it was held that s. 109 of the Constitution Act, 1867 provides Ontario with ownership of crown lands in Ontario. When this is combined with the provincial jurisdiction in natural resources, it was determined that Ontario is entitled to sell the land.
This was also upheld at the Supreme Court level in the determination that Ontario can take up land under Treaty 3. The Court rejected the two-step approach of the trial judge, in finding that this approach was not supported by the text of Treaty 3. In addition, the SCC reasoned that despite Treaty 3 having been negotiated with the Federal government, both the provincial and federal governments are implicated in treaty agreements under the division of powers in the Constitution. The SCC pointed to sections 109, 92(5) and 92A of the Constitution Act, 1867 in determining that Ontario has the beneficial interest in the land for the purpose of taking up the Treaty 3 lands.
In their reasoning, the Court contextualized the signing of Treaty 3 in terms of a historical border dispute between Canada and Ontario over Ontario’s northern and western boundaries. This context was looked at to try to understand the intent of the parties at the time of the signing of the treaty and their interpretation of the taking up clause. The Court looked at an 1891 agreement, where it was found that Article 1 provided that the disputed territory belonged to Ontario,
the rights of hunting and fishing by the Indians throughout the tract surrendered, not including the reserves to be made thereunder, do not continue with reference to any tracts which have been, or from time to time may be, required or taken up for settlement, mining, lumbering or other purposes by the Government of Ontario (Schedule to 1891 Legislation (U.K.)).
The Supreme Court interpreted this clause to mean that Ontario was responsible for the taking up of Treaty 3 lands within the province.
The Court also noted that Ontario had no interest in the Keewatin lands at the time of the treaty signing, but that the 1912 Legislation extended Ontario’s borders to include the Keewatin area. This last point is seemed to be of little focus for the Court, however, as they do not spend much more of their judgment on the intent of the parties. If they had, it seems likely they would have had to acknowledge that the possibility of being subject to a different level of government was not something that the Ojibway would have contemplated at the time of the signing of the treaty.
What was contemplated, however, was the desire for the preservation of harvesting rights—also considered by Justice Sanderson at the trial level. Justice Sanderson held that the doctrine of interjurisdictional immunity prevents provinces from infringing treaty rights, as federal jurisdiction is paramount.
However, the Supreme Court did find that Crown obligations to First Nations are owed by both levels of government, and cited Haida Nation v British Columbia (Minister of Forests),  3 SCR 511, in this regard. The recognition that treaty obligations are owed by both levels of government should have lead to the two-step process that was outlined by the trial judge. However, the Supreme Court went on to specify that a change in the government responsible for regulating a right does not constitute a modification of a treaty, as per R v Horseman,  1 SCR 901.
Grassy Narrows Position
The position of Grassy Narrows was that the treaty was made with the Crown, thus it is the Crown that is obliged to act in accordance with the treaty. In addition, s. 91(24) of the Constitution Act, 1867, notes that Canada has a “residual and continuing role” in treaty lands, as it specifies that Canada has jurisdiction over “Indians, and Lands reserved for the Indians.” As such, Grassy Narrows, at paragraph 60 of their factum, argued that the two-step process enumerated by the trial judge is the double aspect doctrine restated:
To the extent that any taking up displaces or limits the federally promised treaty rights, both aspects of the land or resource must be addressed — the provincial aspect of the land qua proprietary rights and the federal aspect of the land as subject to a treaty right.
In this case, the argument is compelling—both the province and the federal government have a role to play in this particular Treaty given the subsequent annexation of the land to Ontario. As such, Grassy Narrows argued for a tri-partite agreement and a fulfillment of the ‘duty to consult’ affirmed by s. 35 of the Constitution, in which “the existing aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.”
As was noted, the Ojibway yielded their land, except for the lands reserved for them in exchange for the right to harvest and hunt on the lands. The harvesting rights were set out in the taking up clause as:
. . . they, the said Indians, shall have [the] right to pursue their avocations of hunting and fishing throughout the [said] tract surrendered as hereinbefore described . . . and 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 by any of the subjects thereof duly authorized therefor by the said Government. (6)
The Ojibway were promised harvesting rights on their lands, except on areas of land “taken-up.” However, how can these harvesting rights be meaningfully fulfilled if activities carried out on the taken-up lands interfere with harvesting rights? The Grassy Narrows First Nation has long protested the effects of development on their lands, which they argue has lead to environmental destruction and cases of mercury poisoning from the contamination of fish.
Further, Grassy Narrows argued—following the principles of treaty interpretation—it is necessary to look at the intention of the parties in the signing of the agreement. Grassy Narrows intended to negotiate with the Crown and to secure harvesting rights, they did not contemplate losing those rights or negotiating with other parties at the signing of the treaty.
Grassy Narrows further described the ‘honour of the crown’ standard of Aboriginal law requires the application of several principles: first, the crown must clearly and plainly express its intention to modify or extinguish a treaty; second, if a law impairs an Aboriginal right, it will be interpreted narrowly; third, legislation intended to protect Aboriginal people should be interpreted generously. Thus, any ambiguities in the law should be read in favour of Aboriginal people. Grassy Narrows cited Badger at para 41 and Siou at 1061 in these regards in paragraph 87 of their factum. As a result, the modification of the terms of the Treaty was a “fundamental change” in the nature of the right.
In light of the decision in Tsilhqot’in Nation v British Columbia, 2014 SCC 44, in which the Supreme Court recognized Aboriginal title, does this represent a step back for Aboriginal rights? Although the context of an existing treaty with Grassy Narrows is different than the situation present in Tsilhqot’in, the Supreme Court actually cited Tsilhqot’in in this case in finding that the doctrine of interjurisdictional immunity does not prevent the Province from infringing treaty rights if it would be “justified”(para 53). However, this leaves the state of the law in question. It seems this case has resulted unfairly for Grassy Narrows, as it has put them in a situation of having negotiated with a party who then ceased to be a party when it came to honouring the agreement.
As John Wilson noted in commentary on Tsilqot’in, rights can be justifiably limited only if they would serve purposes of reconciliation. Modifying the agreement so the intent of the Ojibway is no longer honoured does not serve to assist the goal of reconciliation. Despite this loss at the Supreme Court, the Grassy Narrows First Nation seems determined to protect the land from development and has affirmed their determination to continue blockades and the political fight.
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