The Supreme Court of Canada says Ontario has the right to issue licences for logging on Grassy Narrows treaty land, a ruling that will come as a blow to the First Nations community.
In a 7-0 ruling released Friday, the high court dismissed the Keewatin appeal, ruling that Ontario has the right to “take up” lands in the treaty area in northwestern Ontario near Kenora, under provisions in Canada’s Constitution, and the interpretation of the treaty.
“Ontario and only Ontario has the power to take up lands under Treaty 3,” the Supreme Court said in its ruling, in a case that hinged on jurisdictional issues.
But in a significant caveat, the Supreme Court said if the taking up leaves Grassy Narrows with no meaningful right to hunt, fish, or trap in relation to the territories over which they’ve traditionally done so, a potential action for treaty infringement will arise.
The court noted that the province’s right to take up lands is subject to its duty to consult, and, if appropriate, accommodate First Nations’ interests beforehand, the Supreme Court said.
Treaty 3 was signed in 1873 between the Ojibway — of whom Grassy Narrows First Nation members are descendants — and agents acting on behalf of the Dominion of Canada.
A portion of land, known as the Keewatin area, was annexed to Ontario in 1912, and since then Ontario has issued licences for the development of these lands.
In 1997 Ontario’s Natural Resources minister issued a licence to a firm now known as Resolute FP Canada Inc., a large pulp and paper manufacturer, to carry out clear-cut operations on land in the Keewatin area.
In 2005 Grassy Narrows launched an action in a bid to set aside the forestry licence.
Grassy Narrows had argued at the Supreme Court that only Ottawa has the power to take up the land because the treaty promises were made between the Crown and First Nations.
The Supreme Court noted that nothing in the text or history of the treaty suggests there needs to be a two-step process requiring the federal government's approval.
In a statement Friday, Grassy Narrows said it would continue to “resist the expansion of unsustainable industrial logging in our territory.”
The community said the ruling doesn’t give the green light for clear cut logging in Grassy Narrows, but rather still requires that Ontario fulfil the duty to “meaningfully consult and accommodate Grassy Narrows in a way that upholds the honour of the Crown before making decisions that could impact our rights.”
Friday’s ruling comes on the heels of a historic judgment in the Tsilhqot'in case in British Columbia that changed the way governments must deal with First Nations over land where aboriginal title is claimed.
An Ontario Court of Appeal decision last year in Keewatin said the province has the right to mine and log on the treaty land and is the sole arbiter when it comes to managing its natural resources.
For over a decade, some Grassy Narrows members have maintained a blockade that prevents access to woodlots near their community.
The First Nation says scientific studies indicate that clear-cut logging in boreal watersheds raises mercury levels in fish above the Health Canada limit for safe human consumption.
It says recent clear-cut logging in Grassy Narrows territory has exacerbated the impact of mercury poisoning that began when a paper mill upstream in Dryden, Ont., dumped mercury between 1962 and 1970.
- With files from The Canadian Press