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Grassy Narrows loses Supreme Court decision

Friday July 11, 2014

The Supreme Court of Canada has ruled against Grassy Narrows First Nation, in a decision that means Ontario can continue to grant leases on First Nations territory in the province.

The unanimous decision of Canada’s top court, released on July 11, ruled that Ontario has the ability to take up lands under Treaty 3 without the federal government’s approval.

Grassy Narrows had asserted that Treaty 3’s “taking up clause” only applied to the federal government and that the province had no power to grant forestry or mining leases on traditional land.

“Although Treaty #3 was negotiated by the federal government, it is an agreement between the Ojibway and the Crown,” wrote Supreme Court Chief Justice Beverley McLaughlin. “Both levels of government are responsible for fulfilling the treaty promises when acting within the division of powers under the Constitution.”

The clause in question from Treaty 3, signed in 1873, states that only the “Dominion of Canada” can take up land under the treaty.

“They, the said Indians, shall have the right to pursue their avocations of hunting and fishing throughout the said tract surrendered as hereinbefore described … saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada,” reads Treaty 3.

The Supreme Court ruled that the reference to the government of Canada in the treaty does not necessarily mean the federal government, but rather whatever level of government has jurisdiction under the Constitution.

“Nothing in the text or history of the negotiation of Treaty #3 suggests that a two step process requiring federal supervision or approval was intended,” wrote McLaughlin. “The reference in the treaty to Canada merely reflects the fact that the lands at the time were in Canada, not Ontario.”

Despite the result, Grassy Narrows said it will continue “our fight to protect our lands and our people” and “continue to resist the expansion of unsustainable industrial logging in our territory.”

Chief Roger Fobister said his community is determined to see Treaty 3 respected.

“We expect the Government of Ontario and Canada to learn from the last (10) years and come to the table ready to deal with the real needs of our people which requires ensuring a sustainable future both environmentally and economically,” he said in a media release.

J.B. Fobister, a Grassy Narrows hunter who helped initiate the case, expressed disappointment in the decision but reiterated the message that Grassy Narrows will “fight to protect the health, welfare and culture of the people of Grassy Narrows using all the tools available to us.

“We believe Ontario and industry are morally and politically obliged to seek our consent before logging our lands,” he said. “Our people will ensure that the government, public, corporations, and courts never forget the terrible effect that industrial logging has had on the health and welfare of our people.”

Grassy Narrows said it will study the decision and determine further actions.

Wabauskang, a neighbouring community to Grassy Narrows and partner in the lawsuit, said the decision is inconsistent with the First Nation’s understanding of its treaty relationship.

“Our treaty is with Canada. It is Canada that is responsible for fulfilling the promises made to the people of Treaty 3,” said Wabauskang Chief Martine Petiquan. “We have always maintained, and will continue to affirm, that the federal government needs to be involved in ensuring that our Treaty rights are respected.”

In dismissing the appeal, the Supreme Court imposed onerous legal obligations on Ontario when making land-use decision that affect treaty rights, said Wabauskang councillor Jo-Anne Petiquan-Moore

“We will not be dismissed, no one is taking our resources without us benefiting and no one is going to destroy our children’s future,” she said. “We will fight for our resources.”

“We are putting the province and industry on notice that they cannot continue to ignore our treaty,” said Petiquan. “It is no longer business as usual. We intend to hold the province to account. If it doesn’t fulfil the responsibilities the court has said it has, we’ll be back in court to ensure that our lands are protected and our treaty is respected.”

Regional chiefs also commented on the Supreme Court ruling.

Ontario Regional Chief Stan Beardy called the decision “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,” Beardy said in a media release. “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.”

The Assembly of First Nations’ Perry Bellegarde, who holds the treaty portfolio for the AFN, said he is “dismayed” by the decision but remains unconvinced that justice could be achieved through Canada’s domestic courts when interpreting “our international treaties.”

“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,” Bellegarde said in a media release. “Second, the ruling today reinforced the requirement of the Crown to consult and accommodate.”

Given the “snail's pace at which the provinces are moving on their duty to consult and accommodate,” continued Bellegarde, “this also needs to be addressed according to international standards as affirmed in the United Nations Declaration on the Rights of Indigenous Peoples."

The legal action was first raised in 2005 by Grassy Narrows’ trappers Andrew Keewatin Jr. and Joseph Fobister, who challenged a license granted by Ontario to Abitibi-Consolidated allowing the forestry company to clear-cut areas of Grassy Narrows’ traditional territory.
Fobister stated at the time that clear-cut logging was destroying the traditional ways of the people of Grassy Narrows.

“We have never given our consent to clear-cut logging, and we have never given up our right to live off this land, but the government and the corporations choose to ignore this,” said Fobister. “The logging is destroying a way of life for our people, and we cannot allow that.”

In 2011, Grassy Narrows won a Superior Court decision in which the judge ruled that federal government involvement was necessary in the granting of any forestry leases on Treaty 3 land.

That decision was overturned at the Ontario Court of Appeal in 2013.

The Supreme Court agreed with the Ontario Court of Appeal.

However, the Supreme Court noted that Ontario has to respect the treaty when granting leases on traditional land, and that it cannot grant leases that would breach the agreements reached in the treaty.

“Ontario’s power to take up lands under Treaty# 3 is not unconditional,” McLaughlin wrote. “For Treaty #3 land to be taken up, the harvesting rights of the Ojibway over the land must be respected. If the taking up leaves the Ojibway with no meaningful right to hunt, fish or trap in relation to the territories over which they traditionally hunted, fished, and trapped, a potential action for treaty infringement will arise.”

Besides its legal actions, Grassy Narrows has waged a long-standing campaign of protest against clear-cut logging on its traditional lands. In 2002, the First Nation set up a blockade on a logging road north of its community, a blockade that was kept up off and on for more than 10 years. Grassy Narrows’ members and supporters also held a one-day blockade of the Trans-Canada Highway in 2006 as a part of its protest.

Along with the blockade, the community has embarked on public relations campaigns against the forestry companies operating on its lands and the provincial government. The public relations campaign paid off in 2008, when major U.S. paper producer Boise-Cascade declared that it would not source wood from Grassy Narrows’ traditional territory without the First Nation’s consent. Soon after that announcement, Abitibi-Consolidated surrendered its license to log on Grassy Narrows’ territory.

In 2012, however, the provincial government approved a 10-year Forest Management Plan (FMP) that would once again allow clear-cut logging on traditional territory. The FMP was set to take effect on April 1, 2014.

While David Oraziette, then-minister of Ministry of Natural Resources, said the FMP included no “planned harvest blocks” within Grassy Narrows’ traditional land use area, Grassy Narrows rejected the plan outright.

“The minister’s statement is false, and completely misrepresents Ontario’s plans for another decade of clear-cut logging on our territory against our will,” said Grassy Narrows’ Chief Simon Fobister in a media release on Nov. 7, 2013.

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