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SCC confirms Ontario’s ability to ‘take up’ lands under Treaty 3

Co-authored by Dan Collins

On 11 July 2014, the Supreme Court of Canada (SCC) released its decision in Grassy Narrows First Nation v Ontario (Natural Resources). The unanimous decision affirms the Ontario Court of Appeal judgment, which held that the Province of Ontario does not require Canadian government approval to develop certain lands surrendered by the Ojibway First Nation to the Crown under Treaty 3.

In 1873, the Dominion of Canada concluded Treaty 3 with the Ojibway chiefs for the surrender of approximately 55,000 square miles (142,450km²) of land in what is now north-western Ontario and eastern Manitoba. The Dominion of Canada needed to secure safe passage through these lands to promote settlement in western Canada and build the Canadian Pacific Railway. In exchange for surrendering the lands, the Crown granted the Ojibway reserve lands in the area. Treaty 3 also gave the Ojibway rights to harvest non-reserve lands in their traditional territory until those harvest lands were ‘taken up’ for settlement, mining, lumbering or other purposes by the government of the Dominion of Canada.

In 1997, Ontario granted a timber licence to Abitibi-Consolidated (now known as Resolute FP Canada) to conduct clear-cut forestry operations on Crown lands situated in a portion of the Treaty 3 lands known as the Keewatin area. At the time Treaty 3 was concluded, the Keewatin area was under the exclusive control of Canada. However, it was subsequently annexed to Ontario through the enactment in 1912 of the Ontario Boundaries Extension Act…

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