By: Donovan Vincent News reporter, Published on Fri Jul 11 2014
Members of the Grassy Narrows First Nation community are vowing to maintain their blockade following Friday’s Supreme Court of Canada ruling that Ontario has the right to issue licences for logging on the group’s treaty lands.
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.
In 1873, ancestors of the Grassy Narrows community signed a treaty in which lands were reserved for them to harvest “until such time as they were taken up’’ for purposes such as mining or forestry.
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.
But in a significant caveat, the Supreme Court ruled Friday that 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.
Native groups including Grassy Narrows pounced on this point to argue that the province must still negotiate with them before going forward.
For over a decade, some Grassy Narrows members have maintained a blockade that prevents access to woodlots near their community.
Joseph Fobister, a Grassy Narrows trapper who helped launch the appeal to the Supreme Court, said after the decision that the blockade will continue.
“The decision doesn’t change anything as far as our fight against clear cutting goes,’’ Fobister said in an interview.
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.
But the Supreme Court ruled against that position, saying that the Crown, for treaty purposes means the federal government and provinces.
And the Supreme Court noted that nothing in the text or history of the treaty suggests the necessity of 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.”
Assembly of First Nations Ontario regional Chief Stan Beardy called the ruling “very disappointing’’ and added he plans to contact Grassy Narrows leaders to discuss next steps with the province and all levels of government “to resolve the situation in a way that respects our rights, title and treaties.’’
Ontario’s Ministry of Natural Resources took a cautious approach to the ruling. Spokesperson Jolanta Kowalski said that while the province is “assured by the certainty the ruling brings’’ the decision is being reviewed to determine next steps.
Seth Kursman, a spokesperson for Resolute, the forestry products outfit, said its mill near Grassy Narrows has been closed for some time, and that it would be “inappropriate’’ at this time to comment further on Friday’s ruling.
The high court 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.
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.
The First Nation says scientific studies indicate that clear-cut logging in boreal watersheds raises mercury levels in fish above Health Canada’s 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