28 March 2013
ABORIGINAL JUSTICE: Ontario appeals court rules against Grassy Narrows First Nation
by Chris Sabas
On 18 March, Ontario’s Court of Appeals ruled that Ontario has the authority to issue logging permits on Grassy Narrows (Asubpeeschoseewagong) traditional territory, overturning a previous Superior Court decision that sided with the community.
Both courts extensively analyzed the division of governmental powers in Canada (Federal and Provincial) and extension of protection to Aboriginal and Treaty rights. Grassy Narrows is included in Treaty #3, which states “that they [Ojibway] shall have [the] right to pursue their avocations of hunting and fishing throughout the tract surrendered… excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes[.]” (emphasis added)
The ‘simplistic’ question then before both courts is, which legislative body, as the Treaty partner, had the ‘authority’ in Treaty #3 territory to “take up” “surrendered” land? The Treaty partner is “the Crown”, not a particular level of government. Grassy Narrows and other First Nations within Treaty #3 territory may look to “the Crown” to keep promises, “but they must do so within the framework of the division of powers under the [Canadian] constitution.” The appeals court stated that when Treaty #3 was negotiated, it was done so under the auspices of the constitutional allocation of powers and responsibilities, and thus, Ontario retained “beneficial ownership.”
Each court looked to history and the development of law and statutes within Canada to arrive at their separate conclusions. Despite their different rulings, each court maintained the long-standing notion that the Canadian government, regardless of legislative body, has a protective, trustee role, “assumed by the Crown in relation to dealing with Indian lands.”
Each referenced the Royal Proclamation of 1763 and that from that date, there was “vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a[n] [unlimited right which the owner has to use property without accountability to anyone] whenever that title was surrendered or otherwise extinguished.”
The notion of indigenous communities surrendering and extinguishing their vested interest in their lands is nothing more than the Eurocentric assumption of automatic sovereignty over indigenous peoples. This comes directly from the Doctrine of Discovery, still firmly entrenched in the Canadian legal system.
Canadian courts have recently begun to address aspects of the doctrine, particularly as it relates to the applicability of Aboriginal oral traditions and Aboriginal understandings when treaties were signed. Many (if not all) indigenous communities insist lands were not surrendered, but to be equally shared with the colonial powers.
It is worth noting that in this decision the court stressed the need for reconciliation. “This process of reconciliation flows from the Crown’s duty of honourable dealing toward Aboriginal peoples, which arises in turn from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people.”
Grassy Narrows may seek leave to appeal the decision to the Supreme Court of Canada.