GRASSY NARROWS X: AN ALTERNATIVE ARGUMENT.

• Author: Dul, Robert

I INTRODUCTION 35 II HISTORY OF THE DEFEATED ACTION 36 I THE DEFEATED KEEWATIN ARGUMENT IN CONTRAST TO THE ARGUMENT THAT FOLLOWS 41 II ANALYSIS OF THE LAW 43 I. Applicability of contract law to treaty interpretation in Canada 44 II. Doctrine of mistake 46 III. Ambiguity in contractual terms 48 IV. Negligent and fraudulent misrepresentation in contracts 49 III APPLICATION OF THE LAW TO THE FACTS 51 I. The application of contract law to the interpretation of Treaty 3 52 II. The doctrine of mistake in the current case 52 III. Ambiguity as it applies to this case 57 IV. Negligent and fraudulent misrepresentation 58 IV THE SUBSEQUENT PROCEEDING ON ESTABLISHING ABORIGINAL TITLE 60 V CONCLUSION 61 VI BIBLIOGRAPHY 63 VII APPENDIX 65 I INTRODUCTION

In this essay, I will use mechanisms of common law to advance an alternative argument, on behalf of Grassy Narrow First Nation, to that advanced in 2009 (1) and ultimately defeated in 2014. (2) My argument is premised on contract law, supplemented by common law principles of jurisprudence applied to sui generis Aboriginal contexts. My argument relies principally on the common law principles of mistake, ambiguity and misrepresentation, and the consequential voidable effect upon a contract. It is my stance that by utilizing contract law, this argument avoids falling prey to the formalities of federalism, as established in the Constitution Act, 1867, (3) which led to the complainant's 2014 defeat. The argument advanced in this manuscript will demonstrate the voidability of Treaty 3 vis-a-vis the Keewatin area. Once voided, no contractual authority will lie within the hands of the Crown to beneficial interest in the land. There being no tenable dispute about the Grassy Narrows First Nations occupying the treatied land prior to the enactment of Treaty 3, establishing Aboriginal title to the area will be a reasonably simple matter. (4) The end effect is that the First Nation community will be free to negotiate a new treaty with the Crown incorporating terms more suitable for contemporary contexts, or to retain title to the land and to the rights that flow therefrom as established in Tsilhqot'in. (5)

I will advance my argument by first providing a brief history of the defeated Grassy Narrows proceeding followed by an analysis of the salient common law, then an application of the law to the facts. Finally, I will briefly outline how the voidability of the treaty creates space for a claim to Aboriginal title.

II HISTORY OF THE DEFEATED ACTION

In 2000, Grassy Narrows First Nation sought judicial review to set aside tree farm licenses granted by the province of Ontario to Abitibi-Consolidated Inc. ("Abitibi") in 1997 for the clear cut logging of Crown land situated within Treaty 3 boundaries. The District Court refused the application, citing its lack of jurisdiction to rule on constitutional matters. (6) In 2003, the plaintiffs, Willie Keewatin, Andrew Keewatin Jr., and Joseph Fibster, members of the Grassy Narrows First Nation, were authorized to bring an action against Ontario's Minister of Natural Resources and Abitibi, on behalf of the members of the First Nation community. (7) In that proceeding, launched in 2005, the plaintiffs ("Keewatin") argued that clear-cutting practices by Abitibi on Treaty 3 land significantly interfered with their trap lines, and that by issuing tree farm licenses to Abitibi in 1997, the province contravened Indigenous harvesting rights as guaranteed by Treaty 3.

Treaty 3 was entered into in 1873 after two failed negotiations by the Dominion government with the Ojibwe predecessors of the Grassy Narrows First Nation in 1871 and 1872. (8) The British Crown's interest in securing a pact with the Ojibwe was embedded in establishing a secure railway route connecting British Columbia to the colonial settlements in the east, unhampered by Indigenous populations who felt dishonored by the incursion. At the time Treaty 3 was signed by the Ojibwe Chiefs, much of Treaty 3 land was the focus of a dispute between the governments of Canada and Ontario. The dispute arose out of unsettled territorial boundaries between the province and the Dominion, and the consequential jurisdictional control the disputed areas were claimed to be under. The area of concern to the plaintiffs ("Keewatin land") was conclusively under the claimed control of Canada at the time, and not part of the disputed area. (9) Subsequent to the signing of Treaty 3, Canada and Ontario entered into a provisional agreement in 1874 regarding the disputed borders, and Ontario's position as holding beneficial interest was accepted by arbitration in 1878. Later that year, re-elected Prime Minister John A. MacDonald refused to acknowledge the 1878 arbitration decision and, although it was affirmed by the Privy Council in 1884, he asserted that the federal government had beneficial ownership of the disputed area because it was the signatory to the treaty. (10) Notwithstanding this assertion, the matter of beneficial ownership in Crown lands in general, and within the disputed area specifically, was resolved in Ontario's favor in 1889 through applying the mechanisms of federalism as established by the Constitution Act, 1867. (11) Although the Keewatin lands had not been part of this disputed area, they were geographically proximal, and the uncertainty demonstrated by the colonial government is contextually significant. In 1912 Ontario's borders were statutorily extended to include the Keewatin lands. (12)

Treaty 3 contains a "Harvesting Clause" that ostensibly assures the Aboriginal signatories, the associated community and their descendants of their right to maintain their traditional practices of hunting and fishing on treaty lands, save for areas that may be 'taken up' for colonial purposes. The Harvesting Clause reads:

"...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." (13) (Emphasis added). The plaintiff's argument, supported at the trial level (14) but ultimately rejected by the Ontario Court of Appeal ("ONCA") and the Supreme Court of Canada ("SCC"), hinged on the Treaty 3 Ojibwe signatories' understanding that the reference to the Dominion was a reference to the government of Canada specifically. The Aboriginal community was bargaining with the government of Canada, not the government of Ontario; consequently, the province did not have authority to 'take up' lands under the treaty. It was the plaintiff's position that any 'taking up' of lands within the treaty area requires the involvement of and authorization from the federal government. (15) Treaty rights are constitutionally protected under s. 35(1) (16) and "[o]nly the federal government, the government specifically charged with their welfare under the Constitution, had jurisdiction in 1873 and has jurisdiction today to limit... these Rights." (17)

At each judicial level of the proceeding, the courts did not disagree that on its plain meaning the Ojibwe predecessors of the Grassy Narrows First Nation entered into Treaty 3 with the government of Canada. (18) It logically follows that the Ojibwe understood they were bargaining with the government of Canada, not that of Ontario. This position is supported by the trial judge's findings of fact in Keewatin v. Ontario (Minister of Natural Resources), 2011 ONSC 4801 (19) and was not specifically disputed nor overturned at the higher courts on appeal. Nevertheless, the Keewatin argument failed because the Ojibwe's understanding was found to be immaterial to the legal functioning of federalism. (20)

The Ontario Court of Appeal found that "[t]he harvesting clause has to be interpreted within the constitutional framework established by the Constitution Act, 1867, the case law elaborating those provisions, and other relevant constitutional principles (21) - a finding supported by the Supreme Court of Canada. "[A] lthough Treaty 3 was negotiated by the federal government, it is an agreement between the Ojibway [sic] and the Crown. The level of government that exercises or performs the rights and obligations under the treaty is determined by the division of powers in the Constitution." (22)

Under the federalist regime, both the provincial and Dominion governments are circumscribed by the unitary nature of the Crown; therefore, the Ojibwe were legally found to be bargaining with the Crown, not with any particular head of government. The authority for 'taking up' treaty lands flowed to the province once those lands were legislatively extended to provincial jurisdiction in 1912. This rendered resource exploitation and management as represented by sections 92(5), 92A and 109 of the Constitution Act, 1867 (23) applicable to the Keewatin area under treaty 3. (24)

The ONCA and SCC decisions were premised largely on authority flowing from St. Catharines Milling and Lumber Co. v. R. (25) ("St. Catharines") Although the dispute at the centre of St. Catharines did not involve an Aboriginal claimant, the finding of the Privy Council was instrumental in establishing constitutional repercussions on treaty land. That case involved the same Treaty 3 land area as referenced earlier, the beneficial interest in which was disputed prior to 1912 between the governments of Canada and Ontario. The government of Canada issued timber licenses to a lumber company so that it might harvest one million feet of lumber from that land. The government of Ontario sought an injunction and damages against the company, declaring that the company had not received lawful authority for so harvesting. The question to be answered was which head of...