On March 18, 2013, the Ontario Court of Appeal confirmed that Ontario has the right to “take up” Crown land for mining and forestry without federal authorization. This ruling confirms that in exercising its rights and powers as beneficial owner, Ontario is not subject to federal consent when taking up Crown land for resource projects. Nevertheless, Ontario is legally obliged to ensure that its actions on behalf of the Crown are consistent with the promises made by the Crown to First Nations.
In 2005, the Grassy Narrows First Nation commenced an action to set aside approvals that Ontario had granted to Abitibi-Consolidated Inc. to carry out forestry operations in the Keewatin lands governed by Treaty 3. For various reasons, the trial judge found that Ontario did not have the right to take up the Keewatin lands within the boundaries of Treaty 3 without receiving authorization from the federal government.
At issue in Keewatin v. Ontario (Natural Resources) was whether Ontario had the right to take up the Keewatin lands and thereby limit treaty harvesting rights without first obtaining the federal government’s approval. Treaty 3 covers an area of approximately 88,000 square kilometres, located almost entirely in Ontario, and contains a “harvesting clause” that retains the First Nation right “to pursue their avocations of hunting and fishing throughout the tract surrendered” except on tracts “required or taken up for settlement, mining, lumbering or other purposes by [the] Government of the Dominion of Canada.” Treaties 6, 7 and 8 each contain a similar harvesting clause and several Treaty 6 First Nations were granted intervener status in the appeal.
The Court found that the trial judge made “many errors” and overturned the lower court decision, concluding that Ontario does have the authority to take up all lands governed by Treaty 3. By virtue of various sections in the ConstitutionAct, 1867, provinces have beneficial ownership of all land, including treaty land, within their borders, exclusive jurisdiction to manage and sell public lands belonging to them and additional powers with respect to non-renewable natural resources, forestry resources and electrical energy. The combined result of these provisions provides Ontario with the right to take up provincial land and fulfill the Crown obligation to consult with First Nations in accordance with Section 35 of the Constitution Act, 1982, without any supervision or authorization from the federal government.
Significance for Resource Developers
This decision largely confirms that provinces have exclusive jurisdiction to take up Crown land for natural resource development and can fulfill the honour of the Crown and the duty to consult without federal approval. The Court noted that, “leaving meaningful constitutional space for the exercise of provincial jurisdiction…without federal control … fosters direct dialogue between the province and Treaty 3 First Nations. Such dialogue is key to achieving the goal of reconciliation.”
Although a number of Treaty 6 First Nations intervened, identifying similarities between Treaty 3 and Treaty 6 and making submissions regarding the Natural Resources Transfer Agreements, the Court declined to comment on those aspects because it was unnecessary for the purposes of determining the appeal.