By: Jennifer Hocking
PDF Version: The Keewatin Case: “Taking up” Lands under Treaty 3
Case commented on: Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48
On July 11, 2014, the Supreme Court of Canada issued its decision in the Grassy Narrows case (also known as Keewatin). The Court held that the province of Ontario has the power to “take up” lands surrendered under Treaty 3 so as to limit the Ojibway First Nation’s hunting and fishing rights within the Keewatin area of Treaty 3 in Northwestern Ontario. Based on the Court’s decision in Mikisew, this power is subject to the duty to consult, and, if appropriate, accommodate, First Nations interests (Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69). This duty is grounded in the honour of the Crown and binds the Province of Ontario in the exercise of the Crown’s powers (Keewatin at paras 50-51). A potential action for treaty infringement will arise if the taking up leaves the First Nation with no meaningful right to hunt, fish or trap in the territories over which they traditionally hunted, fished, and trapped (Keewatin at para 52). In cases where the taking up of lands by Ontario constitutes an infringement of treaty rights, an analysis based on section 35 of the Constitution Act, 1982 and the Sparrow and Badger decisions will determine whether the infringement is justified (R. v Sparrow, [1990] 1 SCR 1075; R. v. Badger, [1996] 1 SCR 771.) The doctrine of interjurisdictional immunity does not preclude the Province from justifiably infringing treaty rights (Tsilhqot’in First Nation v British Columbia, 2014 SCC 44, and for an earlier post on the Court’s handling of interjurisdictional immunity in Tsilhqot’in see here).
The Court’s analysis in Keewatin is based in part on sections 109, 92(5) and 92A of the Constitution Act, 1867. Pursuant to section 109, the Province of Ontario holds the beneficial interests in all lands in the province. Section 92(5) gives the provinces exclusive power over the “Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon” and section 92A gives the provinces exclusive power to make laws in relation to non-renewable natural resources, forestry resources, and electrical energy (Keewatin at para 31). Based in part on these sections, Ontario effectively replaced the federal government as the government that could take up lands pursuant to the terms of Treaty 3.
The Keewatin decision follows logically from the Horseman decision, in which the SCC held that the Alberta government could regulate hunting rights under Treaty 8, even though the treaty was signed by the federal government (R v Horseman, 1990 1 SCR 901). In Horseman, the operation of section 12 of the 1930 Natural Resources Transfer Agreement resulted in the Alberta government in effect replacing the federal government as the “Government of the country” with the right to regulate the treaty rights to hunt, fish and trap.
The Keewatin decision leaves an important question unanswered. The Court makes it clear that a taking up of lands that leaves a signatory First Nation with no meaningful right to hunt, fish or trap may constitute a potential infringement, and it would appear to be very difficult for the Crown to justify the taking up under those circumstances. However, the Court does not comment on whether taking up a significant portion of lands (but not the entire lands) over which a signatory First Nation traditionally hunted, fished or trapped would prima facie constitute an infringement of treaty rights. Future cases may address this issue as more and more lands become subject to forestry and mining tenures and to settlement.
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The Keewatin case also represents a lost opportunity.
Treaty No 3 is one of the few historical treaties that has a contemporaneous written record authorized by the Anihšin?p? First Nation, also known in English as the Eastern Salteaux Ojibway (Ojibway). They had engaged their own translator, Joseph Nolin, a Métis to record the Nolin Notes respecting the negotiating of Treaty No.3. After editing them, Treaty Commissioner Morris attached a copy to his Official Report of October 14, 1873 without comment. That version of the Nolin Notes is described by the Trial Judge Justice Sanderson as being in English, (Keewatin Trial 314) but Morris’s Official Report speaks of them being recorded in French (Keewatin Trial at 337).
The three remaining copies of Nolin Notes are in English with variations. One is attached to Morris’s Official Report as described by Justice Sanderson, one is with the Morris papers in the Archives of Manitoba – and one is in the possession of Allan Paypom, an Ojibway elder. This last one is unique in that it is signed by the Nolin brothers but the contents are significantly more limited and differ in focus. The Ojibway consider this to be the Paypom Treaty. There were of course oral histories of the Ojibway as to the negotiating of Treaty No. 3.
The Supreme Court described these documents as “historical accounts”:
[9] The negotiations lasted from October 1 to October 3, 1873. There are several historical accounts of the negotiations leading to the conclusion of the treaty: Morris’s official report on the making of the treaty, a record of discussions published in The Manitoban newspaper, handwritten notes prepared by Dawson during the negotiations, the notes taken on behalf of the Ojibway Chiefs by a Métis hired by them and a record of negotiations published in The Manitoba Free Press.
In short, they looked towards official English language record of Treaty No. 3 only. There was no elevated consideration of the Nolan Notes and no mention of the Paypom Treaty or Ojibway oral histories (i.e. Mikisew) to inform the interpretation of Treaty No 3. While it may not have made a difference, indeed it was unlikely to, a reference to Ojibway understandings may have gone a long way to advance the Court’s efforts to be “sensitive to the aboriginal perspective.”