Law Times

lAw Times • April 30, 2012 FOCUS ON Aboriginal Law Keewatin closely watched Appeal court to hear landmark case this year A BY MICHAEL McKIERNAN Law Times in the northwestern Ontario area covered by Treaty 3 of 1873. Ontario has appealed the landmark ll eyes are on the Court of Appeal for Ontario as devel- opers and First Nations seek certainty on the future of provincially issued licences Keewatin v. Minister of Natural Resources decision that found the province lacked the authority to interfere with the har- vesting rights of the Grassy Narrows First Nation. The August 2011 decision, a more than 300-page ruling by Ontario Superior Court Justice Mary Sanderson, found that the federal government alone has the power to take up lands in a way that will restrict harvesting rights guaranteed under Treaty 3 even though a separate agreement in 1912 had transferred the land to Ontario. The litigation dates back to 1997 when The decision could have implications for land covered by other numbered treaties, says Robert Janes. the province issued a forestry licence to Abitibi-Consolidated Inc. only to have its validity challenged in a civil suit brought by Grassy Narrows. Abitibi subsequently sur- rendered its licence in 2008 after balking at the length of time negotiations would take. "To authorize uses that significantly interfere with treaty harvesting rights under the treaty, Ontario, or users of land already authorized by Ontario to use the land, must also obtain the authorization of Canada," wrote Sanderson in her decision. Canada opposed that position with its argument that the taking-up of lands should come under provincial jurisdiction. At the same time, counsel for Ontario warned it would be a "massive and unwarranted incur- sion into provincial proprietary and legisla- tive jurisdiction." Some observers fear the decision casts doubt over any licences and permits issued by the province since 1912 as no projects will have had federal approvals since none were thought necessary. "I don't know if I've seen another case involving a dispute over resource exploita- tion that puts it in terms of the constitutional division of powers between the federal gov- ernment and the provincial government," says Ralph Cuervo-Lorens, a partner at Blaney McMurtry LLP who regularly advis- es mining clients on matters such as environ- mental issues and aboriginal consultation. "You can see that now it' Nations and aboriginal groups to use the deci- sion in relation to mining in the same way as they've done it to forestry licences, which is going to change the landscape, I would think. Ontario cannot regulate that resource exploi- tation without going to the feds." Although the decision applies directly to Treaty 3, some observers have predicted sim- ilar challenges could follow in areas affected by other numbered treaties, particularly Treaty 9. It covers a vast swath of northern Ontario many times the size of the Keewatin lands and is home to chromium deposits believed to be the largest in the world. "There' with licences or planning to get licences in the Treaty 3 area is directly affected, Braithwaite, a partner at Fasken Martineau DuMoulin LLP. "The people who should be s open to First worried, but not quite as much, are those in Treaty 9. That' more mineral rights at stake there. It includes the Ring of Fire region where there has been a lot of interest recently. There' s important because there are of momentum to go forward there." s certainly a lot behalf of Grassy Narrows, agrees the deci- sion could have implications for land cov- ered by other numbered treaties. "Treaty 3 was a clear model for treaties 3 Robert Janes, who argued the case on 1905, may help the province avoid the need for federal approvals in that area. "Treaty 9 is slightly different but argu- ably not materially different. The nego- tiating process was different and there' slight language differences as well, but I'd be concerned if I was in Treaty 9, that's s for sure. The difficulty at this point is if an aboriginal group didn't like what was going on, they could go and apply for an injunction saying there' ity for it. They'd have to show that what's s no federal author- been happening has negatively affected their treaty rights, but you see the source of uncertainty for us when you haven't got all the licences you need to be doing what you're already doing. a wake-up call to the federal government about its duty to defend aboriginal rights and result in a deeper consultation process. "The federal government has always Janes says the decision should serve as " clusion that says the federal government really does have a protective role to play. Whether that'll translate into getting them to change behaviour or not is another question." The appeal court is expected to hear arguments in late 2012 on the case. But even if it upholds the decision, Braithwaite says he' through 7," he says. "They were negotiated in sequence and the dealings were all very similar. I think it also has messages about treaties 8 to 11, which really cover most of southern Canada east of B.C. So it is fair to say that while the history of each treaty is different and there' s a hierarchy of concern, so anyone " says Murray circumstances in each treaty negotiation, as well as different histories of constitutional amendments afterwards, it obviously will have a bearing on how the other numbered treaties will be interpreted. s certainly different the context of Treaty 9, which was signed more than three decades after Treaty 3 in According to Braithwaite, differences in " Recruiting? Post your position on GREAT RATES. GREAT REACH. GREAT RESULTS. Contact Sandy Shutt at sandra.shutt@thomsonreuters.com for details. www.lawtimesnews.com JobsInLaw 1/4 pg 5X.pdf 1 2/15/11 4:18:54 PM cial governments will work out a system of co-operation that allows development to go forward. "Going forward, there' s confident the federal and provin- be some federal-provincial co-operation on this as to who is delegated the responsibil- ity of monitoring and issuing these licences. They could pass a statute or issue cabinet orders. There' go about it. "I'm sure there'll be some sort of hack solution from the feds in order that these things will develop. It' s all sorts of ways they could nothing because everyone wants it devel- oped and the bands need jobs, so it' interests to facilitate an agreement, too. They derive a lot of benefit from it." s nonsensical to do s in their LT s going to have to taken a bit of a passive role in many areas and this decision suggests that that isn't really an appropriate response to aborigi- nal matters," he says. "The judge, looking at all the historical documents and case law, arrived at a con- PAGE 9

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