Keewatin v. Minister of Natural Resources 2011 ONSC 4801 - Case Summary

Sandra A. Gogal, Toronto
Arsalan Shirazi, Articling Student, Toronto

Introduction

In a landmark 300+ page decision, the Ontario Superior Court of Justice held that the government of Ontario does not have the authority to interfere with harvesting rights of the Grassy Narrows First Nation under Treaty 3.

Background

Grassy Narrows First Nation brought an action against Ontario with respect to its jurisdiction to issue forestry licenses on the Keewatin lands, which allegedly interfered with their Treaty 3 harvesting rights.

Treaty 3 provided that only the federal government could take up lands subject to harvesting rights. The Minister of Natural Resources (“Ontario”) claimed the Keewatin lands were annexed to Ontario in 1912, which gave them the constitutional authority to take up the lands. The Attorney General of Canada (“Canada”) who was third party, concurred with Ontario (paragraph 1326).

Issues to be Decided

1. Could Ontario limit the Plaintiffs harvesting rights while exercising their jurisdiction under s. 109 of the Constitution to issue forestry licences?
2. If Ontario was not authorized under Treaty 3 to interfere with Aboriginal Rights, could they nevertheless infringe Treaty Harvesting Rights under the Sparrow test?

Justice Sanderson qualified question 2 and only considered whether Ontario had the authority to infringe via Sparrow and s.88 of the Indian Act and did not consider the question of whether Ontario had infringed the Plaintiffs’ harvesting rights and if that infringement could be justified under Sparrow.

Question 1 – Can Ontario restrict the Plaintiffs’ Rights by “taking up” the land via s.109 of the Constitution?

The court held that the interpretation of the Harvesting Clause of Treaty 3 does not give Ontario the constitutional authority to “substantially interfere with treaty harvesting rights.” Only the federal government has the authority to do so. “To authorize uses that significantly interfere with treaty harvesting rights under the treaty, Ontario, or users of the and already authorized by Ontario to use the land, must also obtain the authorization of Canada.”

In order to arrive at this decision, Justice Sanderson provided a detailed analysis in which she considered the principles of treaty interpretation and the application of those principles to the wording in the Harvesting Clause; the initial constitutionality of the Clause, and whether the aforementioned analysis still held up after the Keewatin lands were annexed to Ontario in 1912. The court further dismissed the application of the Mikisew decision which, in its view, differed on many grounds. One such difference noted by the court was that the Mikisew Cree in signing Treaty 8, agreed to geographical displacement of hunting rights whereas the Ojibway in Treaty 3 did not.

Question 2 – Could Ontario potentially infringe on Harvesting Rights as long as they can meet the infringement analysis in the case of Sparrow, if Treaty 3 itself, did not allow them to do so?

The doctrine of inter-jurisdictional immunity prevented Ontario from infringing upon Harvesting Rights as they were at the core of federal jurisdiction under s. 91(24) of the Constitution. Again the court cautioned that it was only considering the legal question related to the division of powers and did not apply the justifiable infringement test to the facts.

The issue was further defined:

1. Is a division of powers analysis appropriate here?  YES
   
   Ontario is constrained by the division of powers and is not free to exercise its proprietary rights without regard to the division of powers. The court dismissed Ontario’s argument that its power under s. 109 is regulated by the Honour of the Crown (duty to consult and accommodate) and s. 35 (any significant limitation on the right must be justified) not s. 91(24). “Treaty rights are protected by s. 91(24) as well as s. 35 and the Honour of the Crown.” Valid provincial legislation which does not touch on “core Indianness” applies ex proprio vigour. If a law does go to “core Indianness”, the impugned provincial legislation will not apply unless it is incorporated into federal law by section 88 of the Indian Act.
2. If yes, are the harvesting rights under Treaty 3 at the core of the federal s. 91(24) power?  YES
   
   Aboriginal and treaty rights fall within the protected core of federal jurisdiction.
3. Does inter-jurisdictional immunity apply to indirect interferences? YES
   
   The doctrine applies in any situation where there is a prima facie infringement of a core federal interest, whether direct or indirect. Ontario argued that the Crown Forests Sustainability Act did not directly regulate nor propose to regulate treaty harvesting rights, however, the court did not rule on whether its activities were sufficiently significant to constitute an infringement.
4. Does s. 88 of the Indian Act apply? NO
   
   Citing with approval the decision in Morris, the court affirmed, “where a provincial law of general application is found to conflict with a treaty in a way that constitutes a prima facie infringement, the protection of treaty rights prevails and the provincial law cannot be incorporated under s. 88.”

Implication for development:

This decision, unlike the usual challenge to resource development, is focused on the division of powers between the federal and provincial governments with respect to the ability to infringe Aboriginal and treaty rights. While the statements of law pertaining to the valid exercise of powers have broader application, the decision is specific to whether the province of Ontario had jurisdiction to issue forestry licences in parts of Treaty 3, identified as the Keewatin lands. The decision weighed heavily on the facts and the specific treaty promises made to the Ojibways. Consequently, the decision with respect to the two questions posed above, are restricted in its application to the Treaty 3 lands in Keewatin.

However, there are other historical treaties throughout Canada that use similar language relating to the power to “take up” lands and which may be similarly challenged. As a consequence, lands “taken up” pursuant to the exercise of provincial authority in these treaty territories may be questioned on the basis of jurisdiction.  

However, the court did not rule on whether the issuance of forestry licences significantly infringed upon the treaty harvesting rights and as noted by the court, “this will involve a complicated impact assessment.”

While it is likely that the decision will be appealed, the issuance of any type of licence in the Keewatin lands, must be assessed as to whether the decision to issue the licence will significantly affect harvesting rights. The implication of this case should be furthered assessed by developers who have permits issued in the Keewatin lands or who may be seeking to obtain permits in this area. The court gave little guidance other than to say that if the decision by the province to issue a permit has the ability to “significantly adversely affect” harvesting rights of the Ojibway in the Keewatin lands, Ontario must turn to Canada to enable it to significantly affect the right without the consent of the Ojibway. Meaningful consultation and impact assessments of project development are critical to assessing whether projects will significantly adversely affect such rights.

Outside the Keewatin lands, developers will need to review and interpret the treaty language which applies to their project to determine (i) the nature of the rights protected by the treaty and (ii) the appropriate regulatory agency with the jurisdiction to issue any permits which have the potential to significantly affect treaty rights. 

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New Draft Requirements for Aboriginal Consultation on Renewable Energy Projects

Sandra A. Gogal, Toronto
Michael Hook, Articling Student, Toronto

The Ontario Ministry of the Environment (MOE) has released a Draft Aboriginal Consultation Guide for preparing a Renewable Energy Approval Application ("Guide"). The Guide lays out the requirements for project proponents to consult with Aboriginal communities in the Renewable Energy Approval (REA) process. It also gives good practice tips for effective consultation.

At this point the Guide is a draft only, and it is unknown when it will come into effect.

Who is affected?

Proponents of renewable energy projects except waterpower projects, Class 2 wind projects and Class 1 and 2 solar projects will be required to follow the guidelines.

Proponents must consult with First Nation and Métis communities. It is important to recognize that each community will have a different culture, history, linguistic heritage, and prior dealings with the Crown and energy projects that will affect their views.

Why consult?

The Crown is required to consult Aboriginal communities when it is aware of an existing or asserted Aboriginal or treaty right, and it is considering taking action that may negatively affect that right. In the REA process, the Crown has delegated the consultation procedure to project proponents. The Guide details the process that, when it takes effect, proponents must follow in order to help the Crown to meet its consultation obligations.

Consultation is designed to pass information between the proponent and the community, and allow the proponent to take the community’s concerns into consideration in the planning process. The ultimate goal is to avoid, or at least to minimize, any adverse impact on treaty rights.

The MOE has discretion to require the proponent to take additional steps, or may do additional consultation itself. In this case, a formal Aboriginal consultation plan may be required.

The Process

Ontario Regulation 359/09 of the Environmental Protection Act sets out the minimum consultation process required of proponents. This table is a quick reference guide only.

Ontario Regulation 359/09 (REA) under the Environmental Protection Act

Draft Aboriginal Consultation Guide for preparing a REA Application

Conclusion

While the Guide provides a good starting point for understanding the consultation process, each REA application will have different requirements. Each case must be dealt with individually. Knowledge, experience and expertise are necessary to ensure a cost-effective consultation process.

For more information on the REA process, the duty to consult Aboriginal communities, or advice on environmental and Aboriginal legal issues, contact Sandra Gogal at 416.595.8574 or via email at sgogal@millerthomson.com.

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