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Ontario court case may change logging on numbered treaty lands


October 15, 2009
By Pulp & Paper Canada

The Ontario government is on trial in a case that could affect how industry gets approval to develop on First …

The Ontario government is on trial in a case that could affect how industry gets approval to develop on First Nations’ traditional lands.

A First Nation group is alleging that the provincial government had no authority to issue logging licenses near its traditional lands in northwestern Ontario.

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Grassy Narrows First Nation says that logging in the nearby Whiskey Jack Forest is encroaching on its fishing and trapping rights — rights that the federal government granted to it in 1873 with the signing of Treaty 3.

The suit names the Ontario Ministry of Natural Resources (MNR), which issued the license, and Abitibi-Consolidated, the company that held the logging license.

Abitibi recently backed out, signing its license over to the Crown during the September 2009 pre-trial.

The federal government is an active participant in the trial, which is currently underway in Ontario Superior Court. Grassy Narrows Counsel Robert Janes is using Treaty 3 to argue that only the federal government — not the province — can interfere with the First Nation’s hunting and trapping rights.

Janes said that the trial’s outcome could alter how licenses are issued to industry in Ontario while also testing the federal government’s responsibility for upholding treaty agreements.

“More deeply, it would change beliefs about the way that numbered treaties work elsewhere in Canada,” Janes said.

Treaty 3 has served as a model for other numbered treaties that stretch from Lake of the Woods in Northern Ontario to the British Columbia border.

“The courts recognize that this is significant,” Janes said, adding that the pre-trial judge awarded Grassy Narrows litigation costs.

‘The treaty interpretation issue is an issue of great public importance,” Madam Justice Spies wrote in her decision.

Spies added that the issue has “not yet been squarely decided or even considered in any case before.”

The legal approach is new, but the logging conflict between Grassy Narrows and the provincial government is not — the two have been in and out of court since 1999.

In that time, more than 20 organizations, ranging from Amnesty International to Ecojustice, have thrown their support behind Grassy Narrows.

Ontario’s MNR is not commenting on the case while it is before the courts, but it did issue a statement outlining its position.

“The province has jurisdiction to authorize the use and development of such lands, for a variety of purposes, including forestry operations, without the need for federal authorization,” the statement said.

It added that, “Ontario will continue to ensure that it consults with aboriginal communities that stand to be affected by proposed development on Treaty 3 lands, and where it is appropriate, accommodates the interests of such communities.”

The trial is expected to wrap up in April 2010.


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