Keewatin et al. v. Ontario (Minister of Natural Resources) et al., (2014) 320 O.A.C. 102 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 15, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 320 O.A.C. 102 (SCC);2014 SCC 48;372 DLR (4th) 385;[2014] 2 SCR 447

Keewatin v. Ont. (2014), 320 O.A.C. 102 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] O.A.C. TBEd. JL.048

Andrew Keewatin Jr. and Joseph William Fobister, on their own behalf and on behalf of all other members of Grassy Narrows First Nation (appellants) v. Minister of Natural Resources, Resolute FP Canada Inc. (formerly Abitibi-Consolidated Inc.), Attorney General of Canada and Goldcorp Inc. (respondents)

Leslie Cameron, on his own behalf and on behalf of all other members of Wabauskang First Nation (appellant) v. Minister of Natural Resources, Resolute FP Canada Inc. (formerly Abitibi-Consolidated Inc.), Attorney General of Canada and Goldcorp Inc. (respondents) and Attorney General of Manitoba, Attorney General of British Columbia, Attorney General for Saskatchewan, Attorney General of Alberta, Grand Council of Treaty # 3, Blood Tribe, Beaver Lake Cree Nation, Ermineskin Cree Nation, Siksika Nation, Whitefish Lake First Nation # 128, Fort McKay First Nation, Te'mexw Treaty Association, Ochiichagwe'Babigo'Ining First Nation, Ojibways of Onigaming First Nation, Big Grassy First Nation and Naotkamegwanning First Nation, Métis Nation of Ontario, Cowichan Tribes, represented by Chief William Charles Seymour, on his own behalf and on behalf of the members of Cowichan Tribes, Lac Seul First Nation, Sandy Lake First Nation and Assembly of First Nations/National Indian Brotherhood (interveners)

(35379; 2014 SCC 48; 2014 CSC 48)

Indexed As: Keewatin et al. v. Ontario (Minister of Natural Resources) et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Wagner, JJ.

July 11, 2014.

Summary:

In 1873 Canada and the Chiefs of the Ojibway Indians entered into Treaty 3 whereby the Ojibway surrendered to Canada a large tract of land, including the Keewatin Lands, situated in what became northwestern Ontario and eastern Manitoba. The Treaty contained a harvesting clause which preserved the right of the Ojibway to hunt and fish on the surrendered land subject to a "taking up" clause. That clause allowed the Government of the Dominion of Canada to take up lands for settlement, mining, lumbering, etc. In 1912 most of the Treaty 3 lands, including the Keewatin Lands, became part of the Province of Ontario. In 1997, Ontario issued a sustainable forest licence which enabled Abitibi-Consolidated Inc., a large pulp and paper manufacturer, to carry out clear-cut forestry operations in certain parts of the Whiskey Jack Forest, which fell within the Keewatin portion of the Treaty 3 territory. In 2005, the Grassy Narrows First Nation commenced an action, alleging that on a proper meaning of the harvesting clause, any taking up of land by Ontario had to be first authorized by the Dominion of Canada. A case management judge divided the trial into two phases, with the first phase involving two issues:

"Question One: Does Her Majesty the Queen in Right of Ontario have the authority within that part of the lands subject to Treaty 3 that were added to Ontario in 1912, to exercise the right to 'take up' tracts of land for forestry, within the meaning of Treaty 3, so as to limit the rights of the plaintiffs to hunt or fish as provided for in Treaty 3?

"Question Two: If the answer to question/ issue 1 is 'no', does Ontario have the authority pursuant to the division of powers between Parliament and the legislatures under the Constitution Act, 1867 to justifiably infringe the rights of the plaintiffs to hunt and fish as provided for in Treaty 3?"

The Ontario Superior Court (Sanderson, J.), in a decision reported [2011] O.T.C. Uned. 4801, answered "no" to both questions, finding in favour of Grassy Narrows on every crucial issue. In particular, the court found that in the Keewatin Lands, Ontario could not take up land so as to limit harvesting rights without first obtaining Canada's approval (i.e., there was a two-step process). An appeal ensued. Abitibi-Consolidated Inc., the Minister of Natural Resources (Ont.) and the Attorney General of Canada) appealed. Several other groups intervened.

The Ontario Court of Appeal, in a decision reported 304 O.A.C. 250, allowed the appeals. The court held that the answer to question one was "yes" (i.e., Ontario had the right to "take up" lands and thereby limit harvesting rights without first obtaining Canada's approval respecting the Treaty 3 lands which became part of Ontario in 1912). It was therefore unnecessary to answer question two. The Grassy Narrows First Nation appealed.

The Supreme Court of Canada dismissed the appeal. The court concluded that Ontario had the authority to take up lands in the Keewatin area so as to limit the harvesting rights set out in Treaty 3. By virtue of ss. 109, 92A, and 92(5) of the Constitution Act, 1867, Ontario alone had the ability to take up Treaty 3 land and regulate it in accordance with the treaty and its obligations under s. 35 of the Constitution Act, 1982. A two-step process involving federal approval for provincial taking up was not contemplated by Treaty 3.

Constitutional Law - Topic 202

Provinces - General - Lands, mines, etc. (Constitution Act, 1867, ss. 92(5) and 109) - [See first Indians, Inuit and Métis - Topic 4409.1 ].

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - [See second Indians, Inuit and Métis - Topic 4409.1 ].

Constitutional Law - Topic 6350

Federal jurisdiction (s. 91) - Indians and lands reserved for Indians - General - [See both Indians, Inuit and Métis - Topic 4409.1 ].

Constitutional Law - Topic 7051

Provincial jurisdiction (s. 92) - Non-renewable resources, forestry resources and electrical energy (s. 92A) - General - [See first Indians, Inuit and Métis - Topic 4409.1 ].

Constitutional Law - Topic 7055

Provincial jurisdiction (s. 92) - Nonrenewable natural resources, forest resources, electrical energy (s. 92A) - Forest resources - [See first Indians, Inuit and Métis - Topic 4409.1 ].

Indians, Inuit and Métis - Topic 4409.1

Treaties and proclamations - General - Limitations on - Treaty 3 respecting a large tract of land in what became Ontario and Manitoba, including the Keewatin Lands, contained a harvesting clause which preserved the Ojibway's hunting and fishing rights subject to a "taking up" clause - That clause allowed the Government of the Dominion of Canada to take up lands for settlement, mining, lumbering, etc. - In 1912 most of the Treaty 3 lands, including the Keewatin Lands, became part of Ontario - In 1997, Ontario issued a forest licence to a private company to clear cut on the Keewatin Lands - At issue was whether federal approval (i.e., Canada's approval) was required for Ontario to take up lands - The Supreme Court of Canada concluded that Ontario had the authority to take up lands in the Keewatin area so as to limit the harvesting rights set out in Treaty 3 - By virtue of ss. 109, 92A, and 92(5) of the Constitution Act, 1867, Ontario alone had the ability to take up Treaty 3 land and regulate it in accordance with the treaty and its obligations under s. 35 of the Constitution Act, 1982 - A two-step process involving federal approval for provincial taking up was not contemplated by Treaty 3 - See paragraphs 28 to 52.

Indians, Inuit and Métis - Topic 4409.1

Treaties and proclamations - General - Limitations on - The Supreme Court of Canada held that "... Ontario has the power to take up lands in the Keewatin area under Treaty 3, without federal approval or supervision. Provided it does so in a manner that respects the requirements set out in Mikisew [Cree First Nation v. Canada (SCC 2005)], doing this does not breach Treaty 3 harvesting rights. If Ontario's taking up of Keewatin lands amounts to an infringement of the treaty, the Sparrow/Badger analysis under s. 35 of the Constitution Act, 1982 will determine whether the infringement is justified ... The doctrine of interjurisdictional immunity does not preclude the Province from justifiably infringing treaty rights (Tsilhqot'in Nation v. British Columbia, 2014 SCC 44) ..." - See paragraph 53.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - [See first Indians, Inuit and Métis - Topic 4409.1 ].

Indians, Inuit and Métis - Topic 5430

Lands - Transfer of lands - Taking up of surrendered or reserve lands - [See both Indians, Inuit and Métis - Topic 4409.1 ].

Cases Noticed:

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 33].

R. v. Horseman, [1990] 1 S.C.R. 901; 108 N.R. 1; 108 A.R. 1, refd to. [para. 33].

St. Catherine's Milling and Lumber Co. v. R. (1888), 14 App. Cas. 46 (P.C.), refd to. [para. 33].

Dominion of Canada v. Province of Ontario, [1910] A.C. 637, refd to. [para. 34].

Canada v. Smith and Ontario (Attorney General) et al., [1983] 1 S.C.R. 554; 47 N.R. 132, refd to. [para. 34].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 37].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 52].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 53].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 53].

William v. British Columbia et al. (2014), 356 B.C.A.C. 1; 610 W.A.C. 1; 459 N.R. 287; 2014 SCC 44, refd to. [para. 53].

Tsilhqot'in Nation v. British Columbia - see William v. British Columbia et al.

Statutes Noticed:

An Act for the settlement of certain questions between the Governments of Canada and Ontario respecting Indian Lands (1891) (U.K.), 54 & 55 Vict., c. 5, generally [para. 14].

An Act for the settlement of questions between the Governments of Canada and Ontario respecting Indian Lands (1891) (Ont.) 54 Vict., c. 3, sect. 1 [para. 41].

Constitution Act, 1867, sect. 91(24) [para. 36]; sect. 92A, sect. 92(5), sect. 109 [para. 31].

Constitution Act, 1982, sect. 35 [para. 4].

Ontario Boundaries Extension Act, S.C. 1912, c. 40, sect. 2 [para. 43].

Treaty No. 3 (1973), generally [para. 11].

Counsel:

Robert J.M. Janes and Elin R. Sigurdson, for the appellants, Andrew Keewatin Jr. and Joseph William Fobister, on their own behalf and on behalf of all other members of the Grassy Narrows First Nation;

Bruce McIvor and Kathryn Buttery, for the appellant, Leslie Cameron, on his own behalf and on behalf of all other members of the Wabauskang First Nation;

Michael R. Stephenson, Mark Crow and Christine Perruzza, for the respondent, the Minister of Natural Resources;

Christopher J. Matthews, for the respondent, Resolute FP Canada Inc. (formerly Abitibi-Consolidated Inc.);

Mark R. Kindrachuk, Q.C., and Mitchell R. Taylor, Q.C., for the respondent, the Attorney General of Canada;

Thomas F. Isaac, William J. Burden, Linda I. Knol and Brian P. Dominique, for the respondent, Goldcorp Inc.;

Heather Leonoff, Q.C., for the intervener, the Attorney General of Manitoba;

Paul E. Yearwood, for the intervener, the Attorney General of British Columbia;

Richard James Fyfe and Macrina Badger, for the intervener, the Attorney General for Saskatchewan;

Douglas B. Titosky, for the intervener, the Attorney General of Alberta;

Zachary Davis, Peter W. Hutchins and Jessica Labranche, for the intervener, the Grand Council of Treaty # 3;

Meaghan M. Conroy and Abram B. Averbach, for the interveners, the Blood Tribe, the Beaver Lake Cree Nation, the Ermineskin Cree Nation, the Siksika Nation and the Whitefish Lake First Nation # 128;

Karin Buss and Kirk Lambrecht, Q.C., Written submissions only, for the intervener, the Fort McKay First Nation;

Karey Brooks, for the intervener, the Te'mexw Treaty Association;

Donald R. Colborne, for the interveners, the Ochiichagwe'Babigo'Ining First Nation, the Ojibways of Onigaming First Nation, the Big Grassy First Nation and the Naotkamegwanning First Nation;

Jason Madden and Nuri G. Frame, for the intervener, the Métis Nation of Ontario;

David M. Robbins, Dominique Nouvet and Heather Mahony, for the intervener, the Cowichan Tribes, represented by Chief William Charles Seymour, on his own behalf and on behalf of the members of Cowichan Tribes;

David G. Leitch, for the interveners, the Lac Seul First Nation and the Sandy Lake First Nation;

Joseph J. Arvay, Q.C., and Catherine J. Boies Parker, for the intervener, the Assembly of First Nations/National Indian Brotherhood.

Solicitors of Record:

Janes Freedman Kyle Law Corporation, Vancouver, British Columbia and Victoria, British Columbia, for the appellants, Andrew Keewatin Jr. and Joseph William Fobister, on their own behalf and on behalf of all other members of the Grassy Narrows First Nation;

First Peoples Law, Vancouver, British Columbia, for the appellant, Leslie Cameron, on his own behalf and on behalf of all other members of the Wabauskang First Nation;

Attorney General of Ontario, Toronto, Ontario, for the respondent, the Minister of Natural Resources;

Aird & Berlis, Toronto, Ontario, for the respondent, Resolute FP Canada Inc. (formerly Abitibi-Consolidated Inc.);

Attorney General of Canada, Saskatoon, Saskatchewan and Vancouver, British Columbia, for the respondent, the Attorney General of Canada;

Osler Hoskin & Harcourt, Calgary, Alberta, Cassels Brock & Blackwell, Toronto, Ontario, for the respondent, Goldcorp Inc.;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervener, the Attorney General of Manitoba;

Attorney General of British Columbia, Victoria, British Columbia, for the intervener, the Attorney General of British Columbia;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervener, the Attorney General for Saskatchewan;

Attorney General of Alberta, Edmonton, Alberta, for the intervener, the Attorney General of Alberta;

Hutchins Légal inc., Montréal, Québec, for the intervener, the Grand Council of Treaty # 3;

MacPherson Leslie & Tyerman, Edmonton, Alberta and Calgary, Alberta, for the interveners the Blood Tribe, the Beaver Lake Cree Nation, the Ermineskin Cree Nation, the Siksika Nation and the Whitefish Lake First Nation # 128;

Henning Byrne, Edmonton, Alberta, and Shores Jardine, Edmonton, Alberta, for the intervener, the Fort McKay First Nation;

Janes Freedman Kyle  Law  Corporation, Vancouver, British Columbia, for the intervener, Te'mexw Treaty Association;

Donald R. Colborne, Victoria, British Columbia, for the interveners, the Ochiichagwe'Babigo'Ining First Nation, the Ojibways of Onigaming First Nation, the Big Grassy First Nation and the Naotkamegwanning First Nation;

Pape Salter Teillet, Toronto, Ontario, for the intervener, the Métis Nation of Ontario;

Woodward & Company, Victoria, British Columbia, for the intervener, the Cowichan Tribes, represented by Chief William Charles Seymour, on his own behalf and on behalf of the members of Cowichan Tribes;

Keshen & Major, Kenora, Ontario, for the interveners, the Lac Seul First Nation and the Sandy Lake First Nation;

Farris, Vaughan, Wills & Murphy, Vancouver, British Columbia, for the intervener, the Assembly of First Nations/National Indian Brotherhood.

This appeal was heard on May 15, 2014, before McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Wagner, JJ., of the Supreme Court of Canada. The following decision was delivered for the court, in both official languages, by McLachlin, C.J.C., on July 11, 2014.