Keewatin et al. v. Ontario (Minister of Natural Resources) et al., (2013) 304 O.A.C. 250 (CA)

• Judge: Sharpe, Gillese and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 18, 2013
• Jurisdiction: Ontario
• Citations: (2013), 304 O.A.C. 250 (CA);2013 ONCA 158

Keewatin v. Ont. (2013), 304 O.A.C. 250 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. MR.026

Andrew Keewatin Jr. and Joseph William Fobister on their own behalf and on behalf of all other members of Grassy Narrows First Nation (plaintiffs/respondents) v. Minister of Natural Resources (defendant/appellant) and Resolute FP Canada Inc. (formerly Abitibi-Consolidated Inc.) (defendant/appellant) and The Attorney General of Canada (third party/appellant)

(C54314; C54326; C54348; 2013 ONCA 158)

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

Ontario Court of Appeal

Sharpe, Gillese and Juriansz, JJ.A.

March 18, 2013.

Summary:

In 1873 Canada and the Sauleau Tribe 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. 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 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.

Constitutional Law - Topic 202

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

Constitutional Law - Topic 7051

Provincial jurisdiction (s. 92A) - Non-renewable resources - General - [See second 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 (1912 legislation) - In 1997, when Ontario issued a forest licence to a private company to clear cut on the Keewatin Lands, the following question arose: "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" - The Ontario Court of Appeal answered "Yes" to this question - Ontario's right to take up tracts in the Keewatin Lands flowed from the constitutional framework, as interpreted by the Privy Council in St. Catherine's Milling (1888), and the interpretation of the harvesting clause - Legislation in 1891 and a related 1894 agreement confirmed that right - The court's conclusion applied to all of the Treaty 3 lands within Ontario's boundaries (i.e., the "disputed lands"), not just the Keewatin Lands - See paragraphs 101 to 212, 221 and 222.

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 (1912 legislation) - In 1997, Ontario issued a forest licence to a private company to clear cut on the Keewatin Lands - At issue was whether federal approval was required for Ontario to take up lands - The Ontario Court of Appeal held that federal approval was not required - That conclusion was supported by constitutional principles - By virtue of s. 109 of the Constitution Act, 1867 (power over lands, mines, etc.), Ontario beneficially owned the public lands governed by Treaty 3 situated within its borders, and by virtue of s. 92(5), Ontario had exclusive legislative authority to manage and sell those public lands - Additional powers with respect to non-renewable natural resources, forestry resources and electrical energy were conferred on the provinces by s. 92A - Ontario's beneficial ownership, combined with the exclusive legislative authority to manage and sell the lands, embraced the things that would amount to taking up lands governed by Treaty 3 "for settlement, mining, lumbering or other purposes", including in the Keewatin Lands (i.e., once the beneficial interest in the lands passed to Ontario by virtue of s. 109, Canada lost the right to "take up" the lands) - See paragraphs 101 to 141.

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 1997, Ontario issued a forest licence to a private company to clear cut on the Keewatin Lands - At issue was whether federal approval was required for Ontario to take up lands - The Ontario Court of Appeal interpreted the harvesting clause, holding that federal approval was not required - The court held that the text of the harvesting clause plainly did not reflect or contemplate a two-step approval involving two levels of government for taking up tracts of land for settlement, mining, lumbering or other purposes (i.e., once the beneficial ownership of land was transferred to a province (e.g., the province did not need federal permission to take up lands)) - The text of the harvesting clause provided for taking up by one level of government - See paragraphs 142 to 155.

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 1997, Ontario issued a forest licence to a private company to clear cut on the Keewatin Lands - At issue was whether federal approval was required for Ontario to take up lands - The trial judge held that Ontario could not exercise the taking up clause without Canada's approval (i.e., a two-step authorization process had to be followed) - An appeal ensued - The Ontario Court of Appeal allowed the appeal, holding that the trial judge's finding that a two-step authorization process had to be followed was wrong in both law and fact - The court stated that the trial judge's factual finding that the Commissioners who negotiated the Treaty deliberately contemplated and intended a two-step authorization process and that Canada would have to authorize taking up by Ontario could not survive scrutiny even under the deferential "palpable and overriding" error standard - See paragraphs 156 to 172.

Indians, Inuit and Métis - Topic 4409.1

Treaties and proclamations - General - Limitations on - Treaty 3 respecting a large tract of land (including the Keewatin Lands, in what became Ontario and Manitoba 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 1891 reciprocal legislation was enacted respecting the selection and confirmation by Ontario of Treaty 3 reserves and a related 1894 agreement - In 1912 most of the Treaty 3 lands, including the Keewatin Lands, became part of Ontario (1912 legislation) - An issue arose as to the interpretation and application of the taking up clause - The Ontario Court of Appeal interpreted the 1891 legislation and agreement and the 1912 legislation in relation to Treaty 3, holding that Ontario had exclusive jurisdiction to administer ceded off-reserve lands for its sole benefit - Ontario's taking up power was, however, subject to the limitations and obligations flowing from the honour of the Crown and s. 35 of the Constitution Act, 1982 - See paragraphs 173 to 200.

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 1997, Ontario issued a forest licence to a private company to clear cut on the Keewatin Lands - At issue was whether federal approval was required for Ontario to take up lands - The trial judge held that Ontario could not exercise the taking up clause without Canada's approval, holding that s. 91(24) of the Constitution Act, 1867, over Indians gave Canada a residual and continuing role in respect of Ontario's use of the taking up provision - An appeal ensued - The Ontario Court of Appeal held that the trial judge's conclusion was erroneous and Ontario was not subject to federal supervision in carrying out its obligations - See paragraphs 201 to 212.

Indians, Inuit and Métis - Topic 4410

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

Statutes - Topic 531

Interpretation - General principles - Law is always speaking - [See Statutes - Topic 2617 ].

Statutes - Topic 2402

Interpretation - Interpretation of words and phrases - General principles - Avoidance of absurdity - [See Statutes - Topic 2617 ].

Statutes - Topic 2617

Interpretation - Interpretation of words and phrases - Modern rule (incl interpretation by context) - Harmonization of statutes (incl. presumption of coherence) - At issue was the interpretation of 1912 federal and provincial reciprocal legislation whereby an area called the Keewatin Lands (federal territory) became part of the Province of Ontario - The Ontario Court of Appeal interpreted the 1912 legislation, relying on three principles of statutory interpretation: (1) the presumption of harmony, coherence and consistency between statutes dealing with the same subject matter; (2) the presumption that the legislature does not intend to produce absurd consequences; and (3) the interpretive maxim that "the law shall be considered as always speaking" - See paragraphs 193 to 196.

Cases Noticed:

St. Catherine's Milling and Lumber Co. v. The Queen (1888), 14 A.C. 46 (P.C.), refd to. [para. 66].

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. 89].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 1990 CanLII 104, refd to. [para. 93].

Dominion of Canada v. Province of Ontario, [1910] A.C. 637, refd to. [para. 125].

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. 129].

R. v. Smith - see Canada v. Smith and Ontario (Attorney General).

Canada v. Smith and Ontario (Attorney General) et al., [1983] 1 S.C.R. 554; 47 N.R. 132, refd to. [para. 130].

Ontario Mining Company Ltd. et al. v. Seybold et al., [1903] A.C. 73, refd to. [para. 131].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.), [2005] 2 S.C.R. 220; 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 2005 SCC 43, refd to. [para. 137].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 137].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 137].

R. v. Secretary of State for Foreign and Commonwealth Affairs; Ex parte Indian Association of Alberta, [1982] 1 Q.B. 892; [1982] 2 All E.R. 118 (C.A.), refd to. [para. 138].

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. 151].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 151].

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. 154].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 162].

R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867; 275 N.R. 201; 206 Nfld. & P.E.I.R. 304; 618 A.P.R. 304; 2001 SCC 56, refd to. [para. 194].

Sharbern Holding Inc. v. Vancouver Airport Centre Ltd. et al., [2011] 2 S.C.R. 175; 416 N.R. 1; 306 B.C.A.C. 1; 516 W.A.C. 1; 2011 SCC 23, refd to. [para. 194].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 196].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2009] 1 S.C.R. 222; 384 N.R. 203; 2009 SCC 9, refd to. [para. 228].

Statutes Noticed:

Constitution Act, 1867, sect. 91(24) [para. 104]; sect. 92(5) [para. 107]; sect. 92A [para. 109]; sect. 109 [para. 106].

Constitution Act, 1982, sect. 35 [para. 105].

Treaty 3, generally [para. 1, Appendix A].

North West Angle Treaty, Number Three (October 3, 1873) - see Treaty 3.

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates (1st Sess. 39th Parl. No. 2) (February 27, 1912), p. 3906 [para. 139].

Hansard - see Canada, Hansard, House of Commons Debates.

Counsel:

Michael R. Stephenson, Mark R. Crow, Peter R. Lemmond, and Candice Telfer, for the appellant, the Minister of Natural Resources;

Gary N. Penner and Barry M. Ennis, for the appellant, the Attorney General of Canada;

Christopher J. Matthews, for the appellant, Resolute FP Canada Inc.;

William J. Burden, Thomas F. Isaac and Linda I. Knol, for the intervener, Goldcorp Inc.;

Robert J.M. Janes, Karey Brooks and Elin Sigurdson, for the respondents;

Bruce Stadfeld McIvor, for the interveners, Big Grassy First Nation, Ochiichagwe'Babigo'ining Ojibway Nation, Ojibways of Onigaming First Nation, Naotkamegwanning First Nation, and Shoal Lake #40 First Nation, and Leslie Cameron on his own behalf and on behalf of all other members of Wabauskang First Nation;

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

David G. Leitch and Travis Moffatt, for the intervener, Lac Seul First Nation;

Abram Averbach, for the interveners, Ermineskin Cree Nation, Muskeg Lake Cree Nation #102, Whitefish (Goodfish) Lake First Nation #128 and Samson Cree Nation.

These appeals were heard on January 14-18 and 21-23, 2013, before Sharpe, Gillese and Juriansz, JJ.A., of the Ontario Court of Appeal. The following decision was released by the court on March 18, 2013.