Reposted from

Toronto, ON (March 20, 2013)
On March 18, 2013, the Ontario Court of Appeal released its unanimous decision reversing the positive and powerful trial judgment of Justice Mary Sanderson in the Keewatin case from Treaty 3 territory. This disappointing result came less than two months after lengthy oral argument in late January.

In the clearest possible terms, the harvesting clause of Treaty 3 makes the taking up of traditional lands for mining, lumbering and other related purposes subject to the consent of the “Government of the Dominion of Canada.” The trial Judge ruled that the Treaty meant what it said. At least in the Keewatin part of Treaty 3, the Province of Ontario did not have the unilateral right to authorize resource development that would have a negative impact on Treaty harvesting rights. Federal consent was also required. Even though this trial result was very positive for First Nations, it is shocking to note that the federal government supported the appeal brought by the Ontario Ministry of Natural Resources. The federal litigation stance is inconsistent with the honour of the Crown.

While the trial judge was painstaking in her review of history in order to understand the Treaty, the Court of Appeal seemed to be on automatic pilot in its rush to put Ontario and Canadian business interests back in control. According to the high Court, the Treaty did not mean what it said. The St. Catherine’s Milling case, decided by the British Privy Council over one hundred years ago, determined once and for all that the Province controls lands and resources after a Treaty is signed. The Province assumed control of the Keewatin territory with the provincial boundary extension of 1912, regardless of the terms of the Treaty. Provincial management remains subject to the constitutional duty to consult and accommodate First Nation rights and interests. The Court of Appeal simply refused to think outside the box of the St. Catherine’s Milling case.

Ontario Regional Chief Stan Beardy remarked as follows: “On behalf of First Nations in Ontario, I wish to express my disappointment with the Keewatin decision of the Ontario Court of Appeal. This was a unique opportunity for the Canadian judicial system to support the true spirit and intent of important Treaty rights. Instead, the Court fell back on dubious and one-sided jurisprudence from over 100 years ago. It seems that nothing has changed in Canada. The Canadian governments and their courts are wrong if they think this kind of dismissal will put First Nations in their place and create certainty in the resource development sector. Nothing could be further from the truth. As long as the spirit and intent of the Treaties are disrespected, the only result will be uncertainty and unrest.”

The Regional Chief went on to say: “First Nations have a sacred Treaty relationship with the Crown. It is our obligation to defend the spirit and intent of the Treaties. Canadian courts have an obligation to consider both sides of the Treaty relationship when issues of interpretation and implementation arise. If reasonable reconciliation is not possible, ongoing and costly conflict at the grassroots level is inevitable.”

The First Nation parties in the Keewatin case have the right to seek leave to appeal from the Supreme Court of Canada. The Regional Chief and the Chiefs of Ontario will continue to support the First Nations in their decision-making process.

The Chiefs of Ontario is a political forum, and a secretariat for collective decision making, action, and advocacy for the 133 First Nation communities located within the boundaries of the province of Ontario, Canada.