Supreme Court’s Grassy Narrows Verdict Dismays First Nations
The Assembly of First Nations and Grassy Narrows First Nation are displeased with with last week’s Supreme Court of Canada decision in the Grassy Narrows v. Ontario (Minister of Natural Resources) case.
In a 7-0 decision, the Court ruled that Ontario had the right to issue industrial loggers permits to operate on the Grassy Narrows First Nation’s traditional lands.
“I remain unconvinced that justice will be achieved through Canada’s domestic courts when it comes to the interpretation of our international Treaties,” said Perry Bellegarde, AFN Regional Chief for Saskatchewan, in a statement. “We are dismayed that the Supreme Court failed to recognize the First Nations’ understanding of Treaty 3 including First Nations’ jurisdiction over this territory. ”
The Assembly of First Nations, the national organization representing First Nations citizens in Canada, served as an intervener in the case.
Andrew Keewatin Jr. of Grassy Narrows First Nation, a Treaty No. 3 First Nation in Ontario, said his Nation will continue to fight.
“This has been a long fight, and while we are disappointed in today’s outcome, we will be continuing to fight to protect the health, welfare and culture of the people of Grassy Narrows using all the tools available to us. We believe Ontario and industry are morally and politically obliged to seek our consent before logging our lands,” Fobister told the CBC News.
From the Court’s judgement text, here’s how the case has unfolded since the first treaty was signed back in 1873:
In 1873, Treaty 3 was signed by treaty commissioners acting on behalf of the Dominion of Canada and Ojibway Chiefs from what is now Northwestern Ontario and Eastern Manitoba. The Ojibway yielded ownership of their territory, except for certain lands reserved to them. Among other things, they received in return the right to harvest the non‑reserve lands surrendered by them until such time as they were “taken up” for settlement, mining, lumbering, or other purposes by the Government of the Dominion of Canada. At the time that Treaty 3 was signed, a portion of land known as the Keewatin area was under the exclusive control of Canada. It was annexed to Ontario in 1912 and since that time, Ontario has issued licences for the development of those lands.
In 2005, the Grassy Narrows First Nation, descendents of the Ojibway signatories of Treaty 3, commenced an action challenging a forestry licence issued by Ontario to a large pulp and paper manufacturer and which authorized clear‑cut forestry operations within the Keewatin area.
The trial judge held that Ontario could not take up lands within the Keewatin area so as to limit treaty harvesting rights without first obtaining Canada’s approval. According to her, the taking‑up clause in the treaty imposed a two‑step process involving federal approval for the taking up of Treaty 3 lands added to Ontario in 1912
The Ontario Court of Appeal allowed the appeals brought before it. That court held that s. 109 of the Constitution Act, 1867 gives Ontario beneficial ownership of Crown lands within Ontario. That provision, combined with provincial jurisdiction over the management and sale of provincial public lands and the exclusive provincial power to make laws in relation to natural resources gives Ontario exclusive legislative authority to manage and sell lands within the Keewatin area in accordance with Treaty 3 and s. 35 of the Constitution Act, 1982.
At issue now was whether Ontario had the “power to take up lands in the Keewatin area under Treaty 3 so as to limit the harvesting rights under the treaty, or whether this is subject to Canada’s approval.”
The Supreme Court confirmed Ontario’s power.
The AFN disagrees. “Treaties were signed between the Crown and First Nations and as such First Nations do not recognize provincial authority over their lands and territories,” the AFN statement stated. “Today’s decision illustrates two important issues. First, it is essential that our Treaties, which are international in nature, be guided by international standards and mechanisms. Second, the ruling today reinforced the requirement of the Crown to consult and accommodate. Again, given the snail’s pace at which the provinces are moving on their duty to consult and accommodate, this also needs to be addressed according to international standards as affirmed in the United Nations Declaration on the Rights of Indigenous Peoples.”
The Grassy Narrows verdict comes on the heels of the Supreme Court’s historic judgment in the Tsilhqot’in First Nation case in British Columbia, in which the Court recognized a First Nation’s title to a specific piece of land.
In a unanimous 8-0 decision, the Supreme Court today granted the Tsilhqot’in First Nation title to more than 1,700 square kilometres of land in the interior of British Columbia.
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