Today’s decision in Grassy Narrows First Nation v. Ontario (Natural Resources) has positive implications for the ability of Goldcorp Inc. and other companies to continue to mine on land natives had ceded to Canada under treaty. Goldcorp operates Canada’s largest gold mine in Keewatin, the same region as the tract in the forestry dispute, and had intervened in the case.
It dealt with a large tract in northern Ontario that natives ceded under what became known as Treaty 3. The licence in the case had been granted to a predecessor of Resolute Forest Products Inc.
Grassy Narrows First Nation had contested the right of Ontario alone to grant licences, arguing the federal government should also be involved.
Under the treaty, the government was given the right to “take up” land for forestry, mining, and other uses and the First Nation retained the right to hunt and fish in those lands at least until that time.
“Federal supervision is not required by the Constitution,” Chief Justice Beverley McLachlin wrote in the decision.
Resource companies had nervously watched this decision after the Supreme Court came down in favour of British Columbia aboriginal groups in the June 26 decision in Tsilhqot’in Nation v. British Columbia, a land claims case in which natives also had sought to block forestry.
But that decision dealt with lands for which there was no treaty, and the language in Treaty 3 clearly provides for tracts of lands to be “taken up [by the government] for settlement, mining, lumbering or other purposes.”
That said, McLachlin did reiterate past language that the right of Ontario to take up this land was not unconditional and it is duty-bound to act honorably.
“These duties mean that for land to be taken up under Treaty 3, the harvesting rights of the Ojibway (natives) over the land must be respected,” she wrote.
Not every “taking up” will constitute an infringement of hunting and fishing rights, she said, but if the taking up leaves the Grassy Narrows Ojibway group with no meaningful right to hunt, fish or trap in areas where they used to do so, they could have a court case for treaty infringement.
The Grassy Narrows First Nation pledged to use all tools available to continue to fight.
It said in a statement that though Ontario had met with Grassy Narrows, it had not changed its plans meaningfully to take Grassy Narrows’ concerns into account.
“The impacts of past industrial activity, including hydro damming, mercury dumping, and clearcut logging, have put our rights in extreme peril and have had a grave impact on our health, culture, and livelihood,” it said.
“Further forced industrial logging could compound the existing industrial impacts leaving Grassy Narrows with no ability to meaningfully exercise our rights.”