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Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Aboriginal law - Treaty rights - Division of powers - Inter-jurisdictional immunity - Interpretation of treaty - Power to “take up” lands - Treaty including clause providing entitlement to “Government of the Dominion of Canada” to take up lands, subject to Ojibway’s right to hunt and fish on lands - Appellants’ initiating action after Ontario issued licences for forestry operations on portion of lands subject to treaty and added to Ontario in 1912 - Whether Court of Appeal erred in holding that Ontario has exclusive jurisdiction to take up lands within treaty territory so as to limit harvesting rights? - Whether Court of Appeal erred in setting aside trial judge’s interpretation of treaty and findings concerning intention of parties at time treaty negotiation? - Whether Court of Appeal erred in applying doctrines of evolution of treaty rights and devolution so as to modify the appellants’ harvesting rights? - Whether Court of Appeal erred in failing to consider whether Ontario’s provincial forestry legislation is constitutionally applicable insofar as it impairs Canada’s exclusive jurisdiction pursuant to s. 91(24) of the Constitution Act, 1867? - Treaty 3.

In 1873, Canada and the Ojibway entered into Treaty 3 in respect of a large tract of land situated in what is now northwestern Ontario and eastern Manitoba. That treaty contained a “harvesting clause” by virtue of which the Ojibway retained the right to hunt and fish throughout the tract of land surrendered except on tracts “required or taken up for . . . lumbering or other purposes by [the Queen’s] said Government of the Dominion of Canada or by any of the subjects thereof duly authorized therefor by the said Government”. Both before and after this Treaty was concluded, there was a longstanding dispute between Canada and Ontario as to whether large portions of Treaty 3 lands fell within the boundaries of Ontario. However, since 1912, all of the Treaty 3 lands at issue are within the borders of Ontario.

In 2005, the Grassy Narrows First Nation launched an action after Ontario’s Minister of Natural Resources issued a sustainable forest licence enabling Abitibi-Consolidated Inc. (now known as Resolute FP) to carry out clear-cut forestry operations on Keewatin Lands which fall within a portion of Treaty 3 territory added to Ontario in 1912. Grassy Narrows sought a finding that Ontario had violated the Treaty 3 harvesting clause by significantly interfering with the appellants’ harvesting rights under the Treaty. That action was divided into two phases, the first phase involving the trial of two questions of law: (1) Whether Ontario has the authority to “take up” tracts of land for forestry so as to limit the rights of members of the Grassy Narrows First Nation to hunt or fish as provided for in Treaty 3, and (2) If the answer to the first question is no, does Ontario have the authority, under the Constitution Act, 1867, to justifiably infringe the rights of the appellants to hunt and fish as provided for in the Treaty? The second phase of litigation has not yet commenced.

The Wabauskang First Nation, whose traditional territory includes Treaty 3 lands and whose members’ Treaty harvesting rights are affected by the same licenses and logging activities as Grassy Narrows, was added as party intervener in the Ontario Court of Appeal.

Lower Court Rulings