After Tsilhqot’in was argued at the Supreme Court, but before the decision was released, the question of the provinces’ power to infringe section 35 constitutional rights, that the “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed,” was again argued at the Supreme Court in the context of treaty rights as part of the Grassy Narrows appeal. The Supreme Court’s Grassy Narrows decision of July 2014 places a heavy legal burden on provincial governments when they seek to exploit Indigenous lands covered by the historical treaties of Canada. The challenge now is for First Nations to hold the provinces to account.
Between 1871 and 1923, Canada negotiated eleven numbered treaties with First Nations across the country, including the Anishinaabe of Treaty 3 in Northwestern Ontario and Eastern Manitoba. With slight variations, many of the treaties allowed for the “taking up” of lands for non-Indigenous settlement, mining, logging and other purposes. The primary issue in Grassy Narrows is what limits exist on Ontario’s ability to exercise the “taking up” clause in Treaty 3.
After the Ontario Court of Appeal overturned the trial decision in the case, Grassy Narrows First Nation and Wabauskang First Nation both appealed to the Supreme Court. I acted as counsel for Wabauskang. We argued that the Court of Appeal erred by failing to confirm the federal government’s role in implementing Treaty 3 based on both the specific wording of the treaty and Canada’s exclusive responsibility for First Nations under the constitution.
The Supreme Court confirmed Ontario’s unilateral authority to take up lands in the Keewatin area of Treaty 3 without federal government supervision. The court also confirmed Ontario has all the constitutional obligations of the Crown, is bound by and must respect the treaty, must fulfill treaty promises and must administer Crown lands subject to the terms of the treaty and First Nations’ interest in the land.
Consequently, Ontario’s exercise of its powers must conform with the honour of the Crown and is subject to the Crown’s fiduciary duties when dealing with Aboriginal interests. When lands are intended to be taken up by Ontario, the Province must consult and, if appropriate, accommodate First Nations interests beforehand. Ontario must also deal with First Nations in good faith and with the intention of substantially addressing their concerns. It cannot exclude the possibility of accommodation from the outset.
As explained in the Supreme Court’s 2005 Mikisew decision, if a “taking up” were to leave the First Nation with no meaningful right to hunt, trap or fish, a potential action for treaty infringement will arise. Finally, relying on its recent decision in Tsilhqot’in, the court held that if a “taking up” amounts to an infringement of the treaty, it is open to the Province to attempt to justify the infringement under the test laid down in Sparrow and Badger.
The basic requirements for justifying the infringement of Aboriginal title and for justifying the infringement of a treaty right are the same. First, the Crown must establish a compelling and substantial objective consistent with the Crown’s fiduciary obligations to Indigenous Peoples. For a government objective to be compelling and substantial, it must be considered from both the public and the Indigenous perspective. It must also further the goal of reconciliation of Indigenous Peoples’ rights and interests with the Crown’s assertion of sovereignty over Indigenous lands.
In addition, the Crown must establish that the infringement of the treaty right is necessary to achieve the compelling and substantial objective. It must demonstrate that the infringement minimally impairs the treaty right and that the benefits to the general public are not outweighed by the negative impacts on the First Nation. As with Aboriginal title, the provinces should be expected to seek First Nations’ consent for infringement of treaty rights. Without consent, authorizations may be quashed and damages awarded.
While technically a loss for Grassy Narrows and Wabauskang, the Grassy Narrows decision will most likely prove a powerful tool for ensuring that Ontario, and other provinces, respect treaty rights. The court was unequivocal that while Ontario can exercise its interests in Crown lands, its authority is subject to treaty and is burdened by the Crown’s constitutional obligations, including fiduciary obligations.
The decision should be read as a companion case to Tsilhqot’in. There the court confirmed that unless they can obtain First Nation consent, the provinces must justify infringements of Aboriginal title—an extremely heavy legal burden. Except for instances where lands are being “taken up,” meaning put to a visibly incompatible use, based on Grassy Narrows it is now arguable that the provinces must also obtain First Nations’ consent or justify infringements of treaty rights.
Ontario’s win in Grassy Narrows has come at a high cost. Ontario and other provinces can now expect to be held to higher standards when seeking to develop Indigenous lands. Where before they were able to argue that their obligations were restricted to the less onerous duty to consult, they are now liable for the heavy burden of justifying infringements of treaty rights.