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Loss for First Nations at SCC has silver lining

|Written By Judy van Rhijn
Loss for First Nations at SCC has silver lining
‘In this case, I maintain that at the Ontario Court of Appeal they actually won a new doctrine that I’ve entitled the doctrine of honourable management in the taking up of treaty lands,’ says Bill Gallagher.

The Supreme Court of Canada’s ruling in Grassy Narrows First Nation v. Ontario (Natural Resources) on July 11 ended a dispute that has played out in northern woodlots and in the courts for the last 15 years.

The First Nations of the Keewatin area maintained that Treaty 3, which dated back to when there was no provincial government in existence, could prevent the allocation of provincial logging licences inside their traditional area. They contended, unsuccessfully, that the federal government needed to be the principal player in the negotiations.

Bill Gallagher, a lawyer and author based in Waterloo, Ont., has followed the case closely. “In the Supreme Court, the overriding issue was which Crown comes to the table,” he says. “The Keewatin wanted Ottawa, but the court found that the proper evolutionary Crown to the treaty is Ontario. It’s the living-tree argument. That’s how the country has evolved.”

The case attracted the interest of other provinces, many of which have no culture of federal involvement. “Ontario First Nations are off the mark when they say it is a loss because they are not dealing with Ottawa,” says Gallagher.

“There are other provinces where if you said you had to have Ottawa at the table, you would be laughed out of the room. The history of Alberta, for instance, means that they would not tolerate Ottawa’s intrusion. This court challenge would not have been considered in other places.”

Despite the loss on this point, Gallagher believes the case handed the Keewatin and all First Nations a significant silver lining. “Typically, First Nations rarely leave court empty handed. In this case, I maintain that at the Ontario Court of Appeal they actually won a new doctrine that I’ve entitled the doctrine of honourable management in the taking up of treaty lands.” These are the lands beyond the reserve dealing with the expanded area First Nations in effect surrendered when they signed the treaty, he notes.

“When dealing with traditional lands where there is a legitimate right for the Crown to step in and take up land — such as for lumbering, mining, and infrastructure — First Nations have to receive the highest duty to consult and uphold the honour of the Crown,” says Gallagher.

“The whole idea of the treaties was to open up land for immigration and resource development, but this has become an area of conflict in the province. Along comes this doctrine of expanded duty to consult by a fairly knowledgeable court. The Court of Appeal was on their game on this. It was not overturned by the Supreme Court in any manner and it is noted in the judgment that Ontario accepts the doctrine and eagerly wishes to embrace it.”

Gallagher suggests the provincial government’s struggles with this issue in the past are likely behind its eagerness to adopt this doctrine. “There are huge areas of northern Ontario where explorers have been invited to leave because there has not been proper consultation. There are two or three lawsuits ongoing by prospectors against Ontario who can’t access land they’ve spent money to explore and a list of corporations that have been bought off or have settled in litigation of this nature. This province is still trying to get its resources section to function at a better level.”

Julie Abouchar, a partner at Willms & Shier Environmental Lawyers LLP in Toronto, says the decision underscores the responsibility of the provincial government in its fiduciary obligation and duty to consult. “That’s the key takeaway point,” she says.

“They always did have that duty, but it was not always clear. There were arguments about the federal government having responsibility under the Constitution regarding Indians and lands reserved for Indians. That was always hovering in the background in addition to the words of the specific treaty. Now the obligations on the province are clear.”

Abouchar notes the obligation will also apply to the federal government depending on which level of government is making the decision. “The federal government also has obligations under the Canadian Environmental Assessment Act and the Fisheries Act, although they have been eroded by recent legislative changes,” says Abouchar, who has observed a steady increase in involvement by the province on First Nations issues. “This decision is supporting that progress.”

When considering whether the province will be involved in every consultation from now on, Abouchar says this case doesn’t really answer that question. “The province is able to delegate procedural aspects of the consultation and certain acts in the process to resource developers. Generally, they do this without a lot of guidance as to how to do it, which has been a concern over the years. After [the] Keewatin [decision], the province has a very clear role and obligation for consultation. It will be harder for them just to have third parties do it without any oversight or involvement.”

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