Jul 18, 2014

Last week in its ruling in Grassy Narrows First Nation v. Ontario (Natural Resources), the Supreme Court of Canada confirmed the power of the provinces to manage natural resources over lands subject to numbered treaties.

Keith Bergner, John Olynyk, Toby Kruger and Lauren Cook at Lawson Lundell get to the bottom line:

The decision reminds provincial governments that their power to take up lands under numbered treaties is subject to obligations rooted in the honour of the Crown. Where treaty rights may be affected by provincial decisions to take up land, the Provinces will have to ensure that the Crown’s duty to consult and accommodate has been discharged.

The Grassy Narrows decision follows shortly after the Supreme Court’s decision in the Tsilhqot’in Aboriginal title case. While the two cases deal with separate and distinct issues — provincial powers to take up lands under treaties (Grassy Narrows), vs. Aboriginal title in areas where no treaties have been signed (Tsilhqot’in) — in both cases the Supreme Court has confirmed the power of provincial governments to enact legislation within their constitutional sphere of natural resource management, subject to their constitutional duties to First Nations. Therefore, while the two cases arose in very different contexts, both cases confirm ongoing provincial powers over lands even where subject to Aboriginal claims and interests.

Cathy Guirguis and Senwung Luk are disappointed:

Key to the question of what was agreed to in the Treaty is the role of consent in the process of reconciliation between Aboriginal and non-Aboriginal Canadians. In its decision two weeks ago in Tsilhqot’in Nation, the Supreme Court of Canada affirmed the Aboriginal title rights of the Tsilhqot’in Nation, in effect telling the provincial and federal governments that they cannot just assert that they own the lands of Aboriginal peoples. But even then, the Court found that in some circumstances, when the government has objectives that are substantial, compelling, and in the public interest, it can infringe on Aboriginal title rights, provided that it meets a series of conditions, such as that the infringement should not destroy the First Nation’s lands for future generations, and that it should only take the minimum of what is necessary for the government’s objective, and leave the rest for the First Nation.

We would note that even this quite restrictive minimal infringement approach falls short of the widely recognized international law norm of “free, prior, and informed consent” (FPIC) – which means that the lands and resources of Aboriginal peoples, such as those that are guaranteed to them through treaty, are not to be taken from them without their consent. This standard has been recognized in international law instruments like the UN Declaration on the Rights of Indigenous Peoples, to which Canada is a signatory.

The Supreme Court’s treatment of Treaty 3 in its decision in Grassy Narrows falls far short of the FPIC standard, and does not even reach the level of protection for Aboriginal title rights that it found in Tsilhqot’in Nation.

Bruce McIvor sees it differently:

While technically a ‘loss’ for Grassy Narrows and Wabauskang, the decision will most likely prove a powerful tool for ensuring that Ontario, and other provinces, respect treaty rights.

The Court was unequivocal that while Ontario can exercise its interests in Crown lands, its authority is subject to Treaty and is burdened by the Crown’s constitutional obligations, including fiduciary obligations.

The decision should be read as a companion case to Tsilhqot’in (see my earlier comment). There the Court confirmed that unless they can obtain First Nation consent, the provinces must justify infringements of Aboriginal title—an extremely heavy legal burden.

Except for instances where lands are being taken up, i.e. put to a visibly incompatible use, based on Grassy Narrows it is now arguable that the provinces must also obtain First Nation consent or justify infringements of treaty rights.

Ontario’s ‘win’ in Grassy Narrows has come at a high cost.

Jennifer Taylor at Stewart McKelvey makes a broader point about the role of judges in Aboriginal law cases:

In Tsilhqot’in Nation, the Court upheld the trial judge’s conclusion on Aboriginal title, and made the point of saying that it was his role “to sort out conflicting evidence and make findings of fact. The presence of conflicting evidence does not demonstrate palpable and overriding error” (para 60). In Grassy Narrows, the appellate courts overturned the trial judge's findings of fact. The problem for the two appellate courts was really about a lack of historical evidence to support the

trial judge’s conclusion that there should be federal supervision over the taking up process. The Supreme Court therefore agreed with the Court of Appeal that the trial judge had made palpable and overriding errors in purporting to find certain facts from the historical evidence (see para 40).

In a way, all judges faced with an Aboriginal law case become historians. It’s always interesting to wonder if their legal and judicial training has prepared them for that unique role, whether the adversarial process is a suitable way for first-instance judges to sift through historical evidence, and what an alternative appellate standard of review might look like.