Supreme Court rules against Grassy Narrows First Nation in first phase of logging dispute with the province

From TBay

One more Grassy court decision still to come

Tuesday, July 15, 2014

Some statements in your editorial on the Supreme Court of Canada's decision in the Grassy Narrows case are misleading (The Grassy Decision, July 13). It is not correct that the Grassy Narrows First Nation "has now lost claim to control the forest around it." Nor did the court give Ontario "renewed permission to set the rules on mining and forestry."

The Grassy Narrows case was divided into two phases. In the first phase, the court had to decide the threshold question of whether Ontario has the authority to take up land under Treaty 3, or whether that authority belongs to the federal government. In the decision released on Friday, the court held that only Ontario, and not the federal government, may take up land under Treaty 3.

The second phase of the case hasn't happened yet. In the second phase, the court will decide the substantive question of whether the logging licences to engage in clear-cutting granted by Ontario unjustifiably infringe the First Nations' harvesting rights under Treaty 3. There will need to be another trial to answer this question. In other words, the court did not approve Ontario's clear-cutting licences in the decision released on Friday.

The authority to take up land is not unconditional. The court affirmed that when taking up land, Ontario must uphold the honour of the Crown and must respect First Nations' harvesting rights under Treaty 3.

Karen Drake
Assistant professor, Faculty of Law
Lakehead University
Thunder Bay


AFN press release

Assembly of First Nations Responds to Supreme Court of Canada Keewatin Decision

OTTAWA, July 11, 2014 /CNW/ - The Assembly of First Nations (AFN) today commented on the Supreme Court of Canada's decision in Andrew Keewatin Jr. et al. v. Minister of Natural Resources et al. (Ont.), a case dealing with Treaty No. 3 rights and the ability of the Province of Ontario to take up lands subject to the Ojibways' right to hunt and fish in this territory. Treaty No. 3 covers areas of northwestern Ontario and parts of eastern Manitoba. The Supreme Court ruled that only Ontario has the power to take up lands under Treaty No. 3.

AFN Regional Chief for Saskatchewan Perry Bellegarde, who holds the Treaty portfolio for the AFN, stated, "I remain unconvinced that justice will be achieved through Canada's domestic courts when it comes to the interpretation of our international Treaties.  We are dismayed that the Supreme Court failed to recognize the First Nations' understanding of Treaty 3 including First Nations' jurisdiction over this territory.  Today's decision illustrates two important issues. First, it is essential that our Treaties, which are international in nature, be guided by international standards and mechanisms. Second, the ruling today reinforced the requirement of the Crown to consult and accommodate. Again, given the snail's pace at which the provinces are moving on their duty to consult and accommodate, this also needs to be addressed according to international standards as affirmed in the United Nations Declaration on the Rights of Indigenous Peoples."

The Keewatin case, as it is known, was brought forward by Andrew Keewatin Jr. of Grassy Narrows First Nation, a Treaty No. 3 First Nation in Ontario.  At issue in the case was whether or not the Province of Ontario has the authority to unilaterally take up tracts of lands under Treaty No. 3 to carry out forestry operations, thereby limiting the exercise of First Nations Treaty rights within the territory. Treaties were signed between the Crown and First Nations and as such First Nations do not recognize provincial authority over their lands and territories.  Today's decision ruled that although Treaty 3 was negotiated by the federal government, it is an agreement between the Ojibway and the Crown and both levels of government are responsible for fulfilling the Treaty promises. The Court also stated that for land to be taken up under Treaty No. 3, the harvesting rights of the Ojibway over the land must be respected by Ontario.

AFN Ontario Regional Chief Stan Beardy said, "While today's decision is very disappointing we want to commend Grassy Narrows First Nation for standing up for the rights in their Treaty and using all avenues to protect their rights and their traditional territories.  While this decision did not achieve what the people of Grassy Narrows First Nations were seeking, it points to the need to ensure all governments work with First Nations to implement Treaty rights and obligations.  I will be in touch with the leadership at Grassy Narrows First Nation and Treaty 3 immediately to discuss next steps with the province of Ontario and all levels of government to resolve the situation in a way that respects our rights, title and Treaties."

Grassy Narrows First Nation launched the court case in 2005 after Ontario's Minister of Natural Resources issued a forest license to Abitibi-Consolidated Inc. (now known as Resolute FP) to carry out clear-cut forestry operations on Keewatin lands within Treaty No.3 territory that was added to Ontario in 1912.  Grassy Narrows First Nation maintains that Ontario violated the harvesting clause in Treaty No.3 by significantly interfering with their harvesting rights under the Treaty.

AFN served as an intervener in this case at the Supreme Court of Canada in support of Grassy Narrows First Nation and First Nations Treaty rights.

The Assembly of First Nations is the national organization representing First Nations citizens in Canada. Follow AFN on Twitter @AFN_Comms, @AFN_Updates. 




COO press release


TORONTO, ON (JULY 11, 2014) - Ontario Regional Chief Stan Beardy today commented on the Supreme Court of Canada's Keewatin decision calling it a breach of Canada's obligations to uphold international laws/standards and undermines Indigenous laws that have already been in place for centuries.

"Despite the decision, First Nations will continue to challenge provincial actions that contravene their own laws and Assertions," Ontario Regional Chief Beardy said.  "The question that is being missed today is how did Canada and Ontario come to say they have decision-making power over First Nations' homelands in the first place? Please, let us not forget how the Treaties validated First Nations' Nationhood prior to Canada becoming a country, and prior to having a Supreme Court."

Compared to First Nations laws, Canada's laws are relatively new. "The Ojibways in Treaty 3 have been consistently clear that they will continue to enforce their Resource Law over any newer laws or court decisions as Sovereign peoples, so I am going with that," said Ontario Regional Chief Beardy.

"Respectful resource development requires collaborative decision making respectful of First Nations original title, laws and Assertions. This respect requires Ontario to exceed the duty to consult and accommodate referenced in the Supreme Court's decision."

Grassy Narrows First Nation reported that scientific studies indicate that clearcut logging in boreal watersheds raises mercury levels in fish above the Health Canada limit for safe human consumption. The studies also say 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 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. Follow Chiefs of Ontario on Facebook or Twitter @ChiefsOfOntario.


For more information, please contact:

Jamie Monastyrski, Communications

Phone: 807-630-7087 - Email:



Grassy Narrows loses Supreme Court logging rights decision

Top court finds province of Ontario, not First Nation or federal government, has jurisdiction over logging

Posted: Jul 11, 2014

More clearcut logging of the one-million hectare Whiskey Jack Forest is in the works.  The Whiskey Jack Forest is part of Grassy Narrows First Nation's traditional territory. The Supreme Court of Canada has ruled against the First Nation in a logging-rights decision released Friday.

More clearcut logging of the one-million hectare Whiskey Jack Forest is in the works. The Whiskey Jack Forest is part of Grassy Narrows First Nation's traditional territory. The Supreme Court of Canada has ruled against the First Nation in a logging-rights decision released Friday. (

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The Supreme Court of Canada ruled today in favour of the Ontario government's right to permit industrial logging on a First Nation's traditional lands.

Friday's 7-0 decision 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.

The top court ruling comes after the province decided to issue a logging licence on land Grassy Narrows considers its traditional territory. The First Nation worried about the adverse effects of clear-cutting on hunting, trapping and drinking water quality.

The main issue was whether provincial authority applies on these particular treaty lands. According to the Constitution of 1867, the federal government has exclusive authority over "Indians and lands reserved for Indians."

But Treaty 3 allowed for the "taking up" of lands for mining, towns and forestry among other things. Municipalities and natural resources are the responsibility of the provincial government under the Constitution.



Supreme Court to decide on Grassy Narrows logging dispute

Ontario First Nation argues province has no jurisdiction on treaty lands

By Jody Porter, Posted: J10, 2014

'If you have no forest, you don't have animals,' says Grassy Narrows trapper J.B. Fobister, one of the plaintiffs in a case before the Supreme Court.

'If you have no forest, you don't have animals,' says Grassy Narrows trapper J.B. Fobister, one of the plaintiffs in a case before the Supreme Court. (Craig Benjamin/Amnesty International)

Grassy Narrows Appeal4:29

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A ruling from the Supreme Court of Canada on Friday will help determine who controls resource extraction across much of the country.

Grassy Narrows First Nation, north of Kenora, Ont., is arguing that the province does not have the right to issue logging or mining permits on its traditional lands.

"After years of trying to get the [forest] industry and the minister of natural resources to take it easy on the forest, we decided to launch a court case," said trapper J.B. Fobister, one of the plaintiffs in the case that was launched in 2000.

Fobister said many people in Grassy Narrows need the forest to make a living. He estimates he makes up to $10,000 a year trapping pine marten. Some families rely on moose as a major food source. 

But Fobister said industrial logging in the area interferes with all of that.

'There is no plan to replace what is taken from us'- Trapper J.B. Fobister

"If you have no forest, you don't have animals," he said. "We need to see some benefits from the destruction of our homeland. There is no plan to replace what is taken from us."

The First Nation argued successfully in an Ontario court that their treaty rights to hunt, trap and fish are "subject only to limits placed by the federal government," as laid out in Treaty 3. 

Ontario appealed the decision and won. Grassy Narrows took the case to the Supreme Court in May.

The court will have to decide "what's the right balance between a traditional way of life and maintaining a local economy," lawyer Robert Janes said at the time.

"As opposed to advancing the goals of the [Ontario] Ministry of Natural Resources, which may very well see many of the benefits of forestry go to Toronto or other distant communities in Ontario," Janes said.

The case is expected to have wide-reaching implications because Grassy Narrows is a signatory to Treaty 3.

Signed in 1873, Treaty 3 contains similar wording to all the numbered treaties that followed, covering lands stretching across Ontario to Alberta and the Northwest Territories. 

"So if this treaty is found to be a boiler plate...then it does have applications across the board," strategist and lawyer Bill Gallagher said.

Strategist and lawyer Bill Gallagher says the Supreme Court decision on Grassy Narrows will have implications for resource management in Ontario and across the Prairies.

The former treaty negotiator theorizes that First Nations are on a "winning streak" with the courts and that even the lower court ruling in this case amounts to a win.

Gallagher said the Ontario Superior Court ruling will push all provinces to use a practice of "honourable management" when it comes to resource extraction on treaty lands.

"When another oilsands project comes on, the Alberta government will be bound by the duty of honourable land management in the taking up of those land rights," Gallagher said. 

Fobister said he'll be waiting anxiously at home near his trapline on Friday for news of the Supreme Court ruling.

He said he'll know Grassy Narrows won something from the years of fighting in the courts if in the end "we have more say on what happens in our forest.