Law Times

Law Times • OctOber 27, 2014 Page 11 www.lawtimesnews.com Grassy Narrows leaves big divide First Nations critical, others say it clarifies land issues by arshy mann Law Times W hen the Supreme Court of Canada ruled in favour of the government in Grassy Narrows First Nation v. Ontario (Natural Resources), it provided clarity on the issue of land title in areas governed by numbered treaties and paved the way for more resource develop- ment in the province. The case, now largely over- shadowed by Tsilhqot' in Nation v. British Columbia, gave the Ontario government the right to take up non-reserve lands gov- erned by Treaty 3 that encom- passes a chunk of northwestern Ontario. The Ontario government had provided a forestry licence for non- reserve lands to a company over the objections of the Grassy Nar- rows First Nation, which main- tained the federal government alone had the right to take up those lands. But in a unanimous deci- sion, the Supreme Court found the treaty was with the Crown and not the federal government. "What the court does is come to a pretty common sense ap- proach that's consistent with the Constitution and relies in large part on the doctrine of the in- divisibility of the Crown," says Jason Annibale, a lawyer at Mc- Millan LLP. "Whether the band was negoti- ating with Her Majesty in Right of Canada or Her Majesty in Right of Ontario, it really is the same thing: the Crown is the Crown regardless of whether it's the province or the federal government." Many First Nations groups, including the Assembly of First Nations, were unhappy with the decision. "I remain unconvinced that justice will be achieved through Canada's domestic courts when it comes to the interpretation of our international treaties," wrote Perry Bellegarde, the AFN's re- gional chief for Saskatchewan, in a release after the decision. "We are dismayed that the Su- preme Court failed to recognize the First Nations' understanding of Treaty 3, including First Na- tions' jurisdiction over this ter- ritory." Annibale sees the decision as a solidification of the status quo. "I see this as just a confirma- tion of existing constitutional principles and a confirmation of the framework in which consul- tation can happen," he says. "If somebody wants to do a resource-based project within provincial jurisdiction, the net- net of all this is that the prov- ince regulates that, they regulate these projects without having to go get the consent of the federal government," says Mark Mc- Mackin, a Toronto-based real estate lawyer. Annibale points out that while the decision gave Ontario the right to take up these lands, the government is still subject to certain constraints. "Ontario's power to take up lands under Treaty 3 is not uncon- ditional," wrote Chief Justice Bev- erley McLachlin in the ruling. "When a government — be it the federal or a provincial gov- ernment — exercises Crown power, the exercise of that power is burdened by the Crown obli- gations toward the Aboriginal people in question." She went on to note that where a province tends to take up lands, the Crown "must inform itself of the impact the project will have on the exercise of the Ojibway of their rights to hunt, fish and trap, and communicate its find- ing to them." The Crown must then make a good-faith effort to substantially address the First Nation's concerns. In his practice, Annibale says he doesn't see much resistance from governments or resource- based companies when it comes to engaging in meaningful con- sultations with First Nations. McMackin believes the deci- sion paves the way for a more direct relationship between re- source companies and First Na- tions in Ontario. "Essentially, what it's done in my view is really open up a dia- logue between First Nations com- munities as stakeholders and re- source-based companies," he says. "And I think it opens up the opportunity to streamline the process and make business hap- pen a little quicker without a lot of red tape and backlog between two levels of government." While McMackin says he un- derstands why many First Na- tions groups were unhappy with the decision, he hopes resource- based companies will engage more fully with them. "This paves the way for work- ing together and not having a third body of government over- ruling or holding things up in that sense," he says. Annibale says the decision is likely to have an impact beyond just Treaty 3 lands. "I don't think it's restricted to just Treaty 3," he says. "I think the principles that they're talking about here are transferable." The decision could have a sig- nificant impact on how the gov- ernment deals with developing the Ring of Fire, a major mineral deposit in northern Ontario that has been a government priority for years. Those lands fall largely under the purview of Treaty 9. "I think what it really clarifies is that Ontario's open for busi- ness," says McMackin. "So many of the provinces and territories are tied up in these rather taxing disputes that are retarding the ability to move forward on some of these resource-based projects." LT FOCUS 'I see this as just a confirmation of existing constitutional principles and a confirma- tion of the framework in which consulta- tion can happen,' says Jason Annibale. 1-888-667-5151 or www.stewart.ca ON The title insurer that puts you front row, centre Putting the legal community front and centre has made us the #1 choice with Canadian lawyers for over a decade. While other title insurers go head to head with you for your business, Stewart Title does not support programs that reduce or eliminate the lawyer's role in real estate transactions. Instead, we focus on what matters to you: • unsurpassed policy coverage • competitive pricing • underwriting expertise At Stewart Title, we keep real estate transactions where they belong – in your office! Untitled-3 1 6/3/11 11:24:18 AM

• Cover