Grassy Narrows received a major setback in its pursuit of controlling logging within its traditional territory on Monday.
The Ontario Court of Appeal has decided the wording of Treaty 3 does not prevent the Ontario government from issuing logging licences within the band’s traditional territory; overturning a lower court’s decision from 2011 which ruled the province could not do so because it impinged on Grassy Narrows’ treaty-protected rights to hunt and fish.
“We’re quite disappointed in hearing that the appeal was allowed and it was not in our favour,” said Grassy Narrows’ Chief Simon Fobister. “We’re definitely going to have to sit down with our legal counsel, the band council and the trapper (who originally brought the lawsuit) to review the decision … We’ll have to weigh our options and decide if we are going to appeal this to the Supreme Court of Canada.
“We knew that (going to the Supreme Court) was going to end up being an option regardless of whoever won the case, and we’re going to be making that decision in the next little bit.”
Monday’s decision means the Ontario Ministry of Natural Resources has the sole jurisdiction to grant logging permits, including the one it granted to Abitibi-Consolidated Inc. (now called Resolute Forestry Products) in 1997 for a clear-cutting operation in the Whiskey Jack Forest inside Grassy Narrows’ territory, which caused the many years of litigation that lead to this point.
The entire case hinges on one clause in Treaty 3. The treaty guarantees the right of First Nations to continue hunting and fishing in the land being surrendered to the Crown, but it exempts lands that are “taken up” by the Crown for uses such as “settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government.”
The question before the court was whether the Ontario government had the right to unilaterally “take up” non-reserve lands to use them for forestry, or if the province must get authorization to do so from the federal government and, by extension, the First Nations whose traditional territory is in question. However, under Canada’s constitution, the provinces have jurisdiction over natural resource development, not the federal government.
For the rest of this article, please go to the Kenora Daily Miner and News website: http://www.kenoradailyminerandnews.com/2013/03/18/court-overturns-2011-decision-and-rules-province-can-grant-logging-permits-in-grassy-narrows-territory