The Question Behind: What are the Limits on Provincial Jurisdiction over Treaty Lands?

By Bruce McIvor

When Britain’s highest court rendered its decision in St. Catherine’s Milling in 1888 it left unanswered “questions behind” the primary issue before it.

The Privy Council held that Treaty 3, concluded in 1873 between the Anishinaabe and Canada, put the underlying interest in the land in the hands of the Ontario provincial government. Left undecided was what, if any, continuing role there is for the federal government to ensure the protection of treaty rights when the province seeks to use the land. After 125 years, the Supreme Court’s recent decision to grant Grassy Narrows First Nation and Wabauskang First Nation leave to appeal in Keewatin brings the question to the fore. (See my earlier posting for a summary of the Court of Appeal decision).

The Jurisdictional Issue

Between 1871 and 1923, Canada negotiated 11 numbered treaties with First Nations across the country, including the Anishinaabe of Treaty 3 in northwestern Ontario and eastern Manitoba. With slight variations, each treaty allowed for the ‘taking up’ of lands for non-Indigenous settlement, mining, lumbering and other purposes. The primary issue in Keewatin is what limits exist on Ontario’s ability to access or exercise the taking up clause in Treaty 3.

The issue raises questions of profound constitutional importance. Under the Constitution Act, 1867, the Crown’s law-making authority is divided between the federal and provincial governments. The federal government has exclusive authority to make laws affecting “Indians and Lands reserved for the Indians.” The Supreme Court has confirmed that Canada’s exclusive authority limits the application of provincial laws that affect rights guaranteed in a treaty without a taking up clause. Does the same rule apply to a historical treaty with a taking up clause? By raising the question, Keewatin has the potential to reset the relationship between Treaty First Nations and provincial governments throughout most of Canada.

The Duty to Consult Issue

The second issue in Keewatin is the application of the Supreme Court’s 2005 decision in Mikisew Cree where the Court held that not every taking up of land under treaty requires government to justify a treaty right infringement. Instead, the Court held that government must meet the less onerous obligations of the duty to consult and accommodate. The question in Keewatin is whether (short of rare situations where no ability to exercise a treaty right would remain), government is ever obligated to justify the infringement of a treaty right when it takes up land under a historical treaty, or whether it only needs to consult and perhaps accommodate First Nations.

The Treaty Interpretation Issue

The final issue in Keewatin goes to the application of the Court’s treaty interpretation principles set out in the 1999 Marshall decision. In Marshall, the Court recognized the challenges faced by First Nations trying to establish their rights under the historical treaties and adapted the rules of interpretation to allow for greater flexibility and sensitivity. At the same time, Justice Binnie cautioned that these generous rules of interpretation “should not be confused with a vague sense of after the fact largesse.” Ever since, at least from the perspective of many First Nations, lower courts have seized on Justice Binnie’s warning to neutralize the Marshall treaty-interpretation principles. The Supreme Court in Keewatin will be asked to clarify the application of Justice Binnie’s caution.

Why it Matters

For Treaty First Nations across the country, it is hard to over-emphasize the importance of the Keewatin appeal. My client, Wabauskang First Nation, summed it up for the Supreme Court as follows:

The historical treaties are living documents. The ongoing fulfillment of their solemn promises is both the challenge and the virtue of Canada. The Applicant asks this Court for direction as to where the Aboriginal peoples of Canada are to look to ensure that the spirit and intent of the treaty promises made to their ancestors are fulfilled.

Grassy Narrows' Leave to Appeal Factum

Wabauskang's Leave to Appeal Factum

Ontario's Response

Canada's Response

Resolute's Response

Grassy Narrows' Reply

Wabauskang's Reply

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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