SCC Says Province has “Crown” Powers (and Obligations) in Traditional Aboriginal Treaties in Grassy Narrows First Nation v. Ontario (Natural Resources)
July 15, 2014
By Harvey Morrison, QC, at McInnes Cooper
On July 11, 2014, the Supreme Court of Canada confirmed that the “Crown” in historical treaties with First Nations groups includes both the provincial and the federal governments, and the provincial Crown has both the “Crown’s” obligations and rights under them – and can exercise these rights (subject to constitutional limitations) without the federal Crown’s prior approval.
Before Ontario’s Keewatin area became part of Ontario, the “Dominion of Canada” and certain Aboriginal groups entered into “Treaty 3”. In it, the Aboriginal groups surrendered their beneficial rights to lands in exchange for certain hunting and fishing rights on lands not “taken up” by the “Dominion of Canada”. In 1997, the Province issued a forestry license to a company for clear-cut forestry in the Keewatin area. In 2005, the Grassy Narrows First Nation (descendants of the Treaty 3 signatories) started a lawsuit asking the court to set aside the licence on the basis that the Province could not “take up” lands under the Treaty without the Government of Canada’s prior approval.
The SCC disagreed: Ontario, and only Ontario, had the power to “take up” lands under Treaty 3, so long as this process conformed with the honour of the Crown, and subject to the Crown’s fiduciary duties towards the Aboriginal group.
Although Treaty 3 only applies in Ontario, the SCC’s decision still has some relevance to Atlantic Canada:
- Peace and Friendship Treaties. In Treaty 3, the First Nations expressly surrendered land. In the “Peace and Friendship Treaties” into which the “Crown” and First Nations in Atlantic Canada entered after periods of warfare between the French and the English, the First Nations did not formally surrender lands but promised that they would not interfere with settlement.
- The “Crown”. The SCC’s reiteration that the “Crown” which entered into historical treaties with the Aboriginal group includes both the provincial and federal governments applies to all historical treaties – including the Peace and Friendship treaties. Provincial governments have the “Crown’s” powers, but are also bound by the Crown’s promises in traditional treaties, and must honour them in accordance with the “honour of the Crown” and its fiduciary duties towards the Aboriginal group.
Read the SCC’s decision in Grassy Narrows First Nation v. Ontario (Natural Resources) 2014 SCC 48 .
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Aboriginal Law Team to discuss this topic or any other legal issue.
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