Aboriginal law: federal approval received by a province prior to the use of land
According to a Supreme Court of Canada judgement, rendered in July 2014, the promises made by the Crown and found within a treaty must be fulfilled by both levels of government. In consequence, the federal and provincial governments must exercise their powers in conformity with the honour of the Crown and the fiduciary duties applicable to the Crown when dealing with Aboriginal interests. (Première Nation de Grassy Narrows v. Ontario (Natural Resources), 2014 CSC 48).
THE FACTS
In 1873, via Treaty 3, the Ojibways, ascendants of Aboriginals who are today recognized as members of the Grassy Narrows First Nation, yielded ownership of their territory, except for certain lands that had been reserved for them, to the Dominion of Canada. In return, they received the right to harvest the yielded land situated outside their reserve until this land was used by the federal government for settlement, mining or lumbering.
In 1912, the yielded land was annexed to the province of Ontario.
In 2005, the Grassy Narrows First Nation took legal action in order to challenge a forestry licence issued, in 1997, by the province of Ontario to a large pulp and paper manufacturer.
The trail judge decided that Ontario could not use the land in question as to limit the harvesting rights granted to the First Nation by Treaty 3 without first obtaining Canada’s approval. The Ontario Court of Appeal instead held that the Constitutional Act of 1867 gives Ontario beneficial ownership of Crown lands situated within the province, and thus creates provincial jurisdiction over the management and sale of these lands and the exclusive provincial power to make laws in relation to Ontario’s natural resources. According to the Court of Appeal, the province could use the lands in question, in accordance with Treaty 3, and limit the First Nation’s harvesting rights without first obtaining Canada’s approval.
The latter judgement was appealed before the Supreme Court of Canada by the Grassy Narrows First Nation.
THE SUPREME COURT OF CANADA’S DECISION
After having considered the arguments invoked by both parties, the Supreme Court of Canada established the following principles:
1. Even if a treaty is negotiated by the federal government, both levels of government, in accordance with the separation of powers established by the Constitutional Act of 1867, are subject to the promises found in said treaty.
2. The concept of the Crown includes all government power.
3. The Constitution provides exclusive provincial power to manage and sell the lands located in a given province, as well as the power to create laws regarding the natural resources that are found within that province.
4. The province of Ontario can use the land as per Treaty 3 for any provincially regulated purpose, such as forestry, without first obtaining Canada’s approval.
5. The federal or provincial government exercising a Crown power must act in accordance with the honour of the Crown and the fiduciary duties that lie on the Crown when dealing with Aboriginal interests.
6. Any use of land by the Crown is subject to previous consultation of the First Nations implicated and the finding of appropriate accommodations, if necessary.
THE LESSONS TO BE LEARNED
1. The obligations established in a treaty must be fulfilled by both levels of government in accordance with the separation of powers provided by the Constitution.
2. A province that decides to make use of land, found within its territory but referred to by an Aboriginal treaty, does not need to first obtain federal approval Dubé Légal inc., Montréal Aboriginal law lawyers.
