All eyes on the Supreme Court as another First Nations decision looms

OTTAWA – The federal Conservatives are anxiously awaiting a Supreme Court decision on a challenge of the Ontario government’s right to permit industrial logging on a First Nation’s traditional lands.

The ruling, scheduled for Friday, 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.

Now all eyes are again on the high court as it is set to rule on the long-running legal odyssey of the Grassy Narrows First Nation.

The Ontario case is different from the one involving the Tsilhqot’in First Nation in that it involves treaty land, not aboriginal title.

But the lawyer for Grassy Narrows says a decision in the First Nation’s favour could get Ottawa more involved in provincial resource development.

“If the decision is in favour of Grassy Narrows, then essentially the provincial government has two major hurdles to get over before it can authorize resource development,” lawyer Robert Janes said earlier this week.

“The federal government will really have to be at the table. That’s going to require a major re-think of the way that a lot of resource development is done in Ontario and potentially other places in Canada.”

The Grassy Narrows First Nation appealed after Ontario’s highest court ruled in March 2013 that the province has the right to “take up” treaty land for forestry and mining.

Only Ottawa, they argued, has the power to take up the land because the treaty promises were made between the Crown and First Nations.

The Supreme Court’s decision should clarify the roles of the federal and provincial governments when it comes to resource development on treaty land.

Dominique Nouvet, who specializes in aboriginal law, said she doesn’t think the Grassy Narrows case will have the same impact across the country as did the Tsilhqot’in case.

“I don’t think that a decision in Grassy Narrows’ favour would have nationwide implications of the same significance,” Nouvet said.

That’s partly because of the wording of Treaty 3, which is one of — if not the only — numbered treaty that refers to the “taking up” power being reserved for the Dominion of Canada, she noted.

But a ruling in favour of Grassy Narrows would give the federal government a bigger role in negotiations between First Nations and the provinces on resource projects, she said.

“It would essentially ensure that Canada is involved, at least on an initial basis, until some decision-making process is worked out, because Canada’s consent would be required for any significant interferences with Grassy Narrows’ treaty rights in the Keewatin territory,” Nouvet said.

The tiny community from northwestern Ontario has spent more than a decade in court fighting the province’s decision to issue a licence for clearcut operations in parts of the Keewatin portion of Treaty 3 territory.

The First Nation says scientific studies indicate that clearcut logging in boreal watersheds raises mercury levels in fish above the Health Canada limit for safe human consumption.

It says recent clearcut 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.

The odds appear to be against Grassy Narrows, however. The Supreme Court heard their case only two months ago. The remarkably quick turnaround — which includes time spent translating the decision into French — may not auger well for the First Nation.

Still, the Supreme Court surprised many by recognizing the Tsilhqot’in First Nation’s claim to aboriginal title, and it could do so again with the Grassy Narrows case.

The Supreme Court’s unanimous decision on the Tsilhqot’in case recognized, for the first time in Canada, aboriginal title to a specific tract of land and set a historic precedent affecting resource rights.

The Tsilhqot’in case essentially made it easier for First Nations to establish title over lands that were regularly used for hunting, fishing and other activities prior to contact with Europeans.

The decision places a greater burden on governments to justify economic development on aboriginal land.

But title is not absolute. Development can still occur on titled land without aboriginal consent in cases where development is pressing, substantial and meets the Crown’s fiduciary duty, the high court ruled.

The Fraser Institute published a paper Thursday that says the Tsilhqot’in ruling will cast a cloud of uncertainty over all current and future development projects in the province.

“Over the longer term, it will result in an environment of uncertainty for all current and future economic development projects that may end up being recognized as on aboriginal title lands,” it says.

“Needless to say, this judgment is a real game-changer.”

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