Jocelyn Kearney of Norton Rose, one of the authors of IFC Performance Standards on Environmental and Social Sustainability: A Guidebook, writes about a recent key decision of the Ontario Court of Appeal that will have implications for the understanding of indigenous rights and the duty to consult in Canada. This development should be of interest to Equator Principles banks grappling with the meaning of Free Prior and Informed Consent, which is now part of the IFC Performance Standards requirements, which must be interpreted with consideration to the well developed legal concepts from which its meaning derives.
Background to the appeal
On March 18, 2013, the Court of Appeal released its highly anticipated decision in Keewatin v Ontario (Minister ofNatural Resources). Keewatin involved a challenge by Grassy Narrows First Nation to the decision of Ontario’s Minister of Natural Resources to issue a sustainable forest license to Abitibi-Consolidated Inc. The license allowed Abitibi to carry out clear-cut forestry operations in certain parts of Whiskey Jack Forest, which falls within the Keewatin portion of Treaty 3 territory (the Keewatin Lands).
Treaty 3 was entered into on October 3, 1873, between Canada and the Saulteaux Tribe of the Ojibway Indians in respect of a large tract of land situated in what is now northwestern Ontario and eastern Manitoba. Pursuant to the treaty, the Ojibway surrendered their interest in the lands in exchange for reserves, payments, and other benefits. At issue in Keewatin was a harvesting clause in the treaty, by which the Ojibway retained the right to hunt and fish throughout the surrendered lands, except on those tracts “required or taken up for the settlement, mining, lumbering or other purposes by [the] Government of the Dominion of Canada.” Grassy Narrows asserted that the license grant to Abitibi violated this harvesting right.
The appeal focused on whether Ontario had the right to take up the lands in question, thus limiting the Ojibway’s harvesting rights, without Canada’s approval. The trial judge, following an exhaustive examination of the historical context, legislative framework and treaty law, had held that Ontario did not have the right to take up lands under the treaty, and could issue authorizations under section 109 of Constitution Act, 1867 only so long as those authorizations did not substantially interfere with harvesting rights.
The trial judge held that to authorize uses that interfered with harvesting rights required the approval of the federal government, with whom Treaty 3 was made and to whom the “taking up” authority was expressly granted, a holding consistent with Canada’s jurisdiction under subsection 91(24) of the Constitution Act over “Indians, and Lands reserved for Indians.”
Constitutional evolution and Crown responsibility
A unanimous Court of Appeal disagreed with the trial judge’s conclusion, allowing the appeal.
Central to this disposition were a number of key findings. First, the Court of Appeal emphasized that the Ojibway’s treaty partner is the Crown, not any particular level of government: “Responsibility for respecting the Crown’s promises falls to be determined by the allocation of power under the constitution and the location of that responsibility evolves as the constitution evolves.” That the harvesting clause referenced the Dominion of Canada is simply reflective of Canada’s beneficial ownership of the Treaty 3 lands in 1873. Employing the doctrine of “constitutional evolution,” the Court of Appeal held that beneficial ownership of those lands had devolved to Ontario, together with the full power to take up lands and obligation to ensure that its actions on behalf of the Crown are consistent with the Crown’s treaty obligations. This “taking up” power is derived from the Constitution, not the treaty.
Second, the Court of Appeal disagreed with the trial judge’s interpretation of the treaty itself, which imposed a two-step federal and provincial approval process to taking up treaty lands. The Court of Appeal criticized this approach as cumbersome and unnecessary to protect the harvesting right. The Court of Appeal held that “[i]t is difficult to see how the process of consultation, which is required when the treaty and harvesting right is affected by taking up, would be improved by involving both levels of government” – a sensible conclusion given that the duty to consult residing with the Crown should not vary by level of government discharging the duty on behalf of the Crown.
The Court of Appeal also suggested that parallel consultation by the federal government might detract from a direct dialogue between the province and Treaty 3 First Nations, which is “key to achieving the goal of reconciliation.” Application of subsection 91(24) A third key, and perhaps most consequential, issue was the trial judge’s holding that Canada’s subsection 91(24) jurisdiction over “Indians” gives it a residual and continuing role in respect of Ontario’s use of the “taking up” provision. The Court of Appeal found the trial judge’s interpretation to be irreconcilable with binding case law. The Court of Appeal held that to expand subsection 91(24) to include a supervisory power over taking up of treaty lands would render illusory provincial jurisdiction over the disposition of management of public lands and forests within the province, clearly contrary to the decisions of the Privy Council and the Supreme Court of Canada in St. Catherine’s Milling and Smith, respectively.
Taking up and the duty to consult
The Court of Appeal also drew a distinction, drawing on the Supreme Court’s decision in Mikisew, between taking up that leaves no meaningful harvesting right in a First Nation’s traditional territories, from a taking up with a lesser impact. The former, it held, would infringe a First Nation’s treaty rights, grounding an action for treaty infringement, whereas the latter would not.
The Court of Appeal further noted that an action for infringement would not engage Canada in a supervisory role. Such an action would be brought against the infringing party directly (in this case, Ontario).
Given that the adequacy of consultation was not a dispositive issue on appeal, the Court of Appeal gave it little attention, merely noting, in obiter, that Ontario cannot take up lands so as to deprive signatory First Nations of a meaningful right to harvest in their traditional lands, and further that “honourable management” – likely a variation of the Crown’s duty to act honourably in its dealings with First Nations – requires that Ontario, as the government with authority to take up the Keewatin Lands, must consult with First Nations prior to take up, and accommodate their treaty rights where necessary.
The Keewatin decision results in a more workable framework for taking up treaty lands, requiring only one level of government to step into the shoes of the Crown and carry out its treaty responsibilities.
In respect of Treaty 3, this responsibility ultimately devolved to Ontario when the treaty lands were ceded to the province. The decision preserves the right of the provinces to manage their public lands, consequently confining the federal head of power over “Indians and lands reserved for Indians.”