Ontario appeal decision on ‘taking up land’ may influence other provinces

The Ontario Court of Appeal says the province can “take up” land for mining and forestry without conducting separate consultation with the federal government.

On March 18, in Keewatin v. Ontario (Natural Resources) the Ontario Court of Appeal confirmed 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.

However, it is obliged to ensure its actions on behalf of the Crown are consistent with the promises made by the Crown to First Nations, which is to ensure the duty to consult and s. 35 rights.

“I think it’s a good decision in the sense that it provides greater certainty to everyone, essentially — to resource developers, government and First Nations. I think it’s positive in that sense,” says Terri-Lee Oleniuk, a lawyer with Osler Hoskin & Harcourt LLP in Calgary.

Oleniuk called the judgment “persuasive and well reasonsed” and likely to broadly apply in other jurisdictions in cases involving interpretation of the Constitution and treaties. It is only binding in Ontario.

At the Ontario Court of Appeal, opponents from companies such as Goldcorp appeared as well as other First Nations from different treaty areas.

“Of interest to us were the Treaty 6 First Nations intervening and making submissions to the nature resources transfer agreements and how it might apply out here,” says Oleniuk.

At issue in Keewatin was whether Ontario had the right to take up the Keewatin lands and thereby limit treaty harvesting rights without first getting federal government approval.

In 2005, the Grassy Narrows First Nation commenced an action to set aside approvals 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 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.

In its decision, the Ontario Court of Appeal noted the trial judge “made many errors” stating the original interpretation did not take into consideration that a two-step process involving consultation by both the province and the federal government is unnecessary, as the treaty right is protected.
. . . the trial judge’s interpretation produces a process that is unnecessary, complicated, awkward and likely unworkable. The two-step process is unnecessary to protect the Aboriginal Treaty harvesting right because when the Crown, through Ontario, takes up land, it must respect the Treaty right. When Ontario stepped into Canada’s shoes by virtue of the process of constitutional evolution, the legal standard that binds the Crown did not change and the Treaty right is fully protected. To require both levels of government to be engaged in a two-step process is, on its face, complicated and awkward. It is difficult to see how the process of consultation, which is required when the Treaty harvesting right is affected by taking up, would be improved by involving both levels of government.

The court also noted, “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.”

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