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This past Friday, the Supreme Court of Canada made its ruling in the case (Keewatin v. Ontario MNR). Grassy Narrows had been arguing that Ontario has no jurisdiction over logging on its territory due to promises made by Canada (The Crown) in Treaty 3 and The Constitution. Unfortunately, the court ruled in favour of the Ontario government to permit industrial logging on a Grassy Narrows’ traditional lands.

This legal case was challenging “Ontario’s jurisdiction to unilaterally award logging and mining licenses on a vast tract of Treaty 3 lands north of the English River (the Keewatin Lands). In Treaty 3, signed in 1873, Canada promised to respect the right of the Ojibway to hunt and fish in their territory. However, Ontario continues to plan for clearcut logging throughout Grassy Narrows’ Territory that will seriously limit Grassy Narrows’ rights, and has finalized a new 10 year Forest Management Plan for Grassy Narrows’ Territory that includes numerous large clearcuts permitted by Ontario against Grassy Narrows’ will.”

The Grassy Narrows First Nation (or Asubpeeschoseewagong First Nation as it is traditionally called in Anishinaabek) and its community members have been involved in the longest-running indigenous blockade in Cananda for over 10 years; but, the history of injustice, colonialism and contempt for the community is much longer. There is a long history of Grassy Narrows facing environmental colonialism where industry and government collude to pollute the lands and bodies of the people in the region.

Perhaps this is the most important place to start, before looking at the legal ruling in detail. There are few greater injustices in Canada than what has happened to Grassy Narrows over the past 100 years. I would argue that if any non-native community had faced (and continues to face) such immense injustices as Grassy Narrows has it would be a daily national headline. As it stands, most people remain woefully ignorant of this unacceptable situation and the ever continuing history of the colonial assault on Grassy Narrows. Premier Wynne and Ministry of National Resources’ (MNR) choice is a chance, after countless years of predacious resource policy and toxic poisoning, to respect the basic humanity of the people of Grassy Narrows and share in the stewardship of the environment. If it was Kenora, Picton, Stratford, Perth, or any other small community in Ontario facing the possibility of further poisoning, the Wynne government’s decision would be different.

As cavalier and cruel as the Wynne government’s position is, it is nothing new for Grassy Narrows. From 1962 to 1970, the Dryden Chemicals Inc. paper mill dumped 20,000 pounds of mercury (with consent and permission from the Province of Ontario) into the English-Wabigoon River. This pollution has had devastating effects on the communities of Quibell (the Wabauskang First Nation), Asubpeeschoseewagong (Grassy Narrows First Nation) and Wabaseemong (Whitedog First Nation). Further, airborne emissions of mercury from the company continued to be released until October 1975. While it has been nearly 40 years since this contamination ended, the long term effects of mercury poisoning (Minamata Disease) have been devastating on the local communities. Studies have revealed that health issues related to exposure from methyl-mercury are exceptionally prevalent in Grassy Narrows people (79 per cent in one study conducted from 2002-2004 although the government has been systematically arguing against the results of the study).

With the challenge to the Ontario government and the Whisky Jack Forest Plan the struggle is not simply with regards to traditional land use vs. logging rights, but also with the mercury in the contaminated soil. The provincial government proposal would see expanded clear-cutting, leaving erosion to bring contaminated sediment into the local rivers. Chief Fobister has stated, “New clearcut logging will bring even more mercury into our river and our food chain, further prolonging and exacerbating this avoidable tragedy. We condemn such processes and plans.” Echoing this sentiment Maude Barlow has attested that, “The people of Grassy Narrows continue to suffer the effects of the mercury contamination of their rivers and streams which was first discovered more than forty years ago. Industrial clear-cut logging has not only destroyed trap lines and wiped out medicinal plant picking areas, it has almost certainly also contributed to new mercury leaching into their rivers and streams… The tragedy at Grassy Narrows will be repeated unless we recognize that access to clean water is a human right.”

The Whisky Jack Proposal and the logging permits handed out by the Wynne government will see industrial logging using 100 per cent clear-cuts, some of which are within one kilometre of the reserve boundary and “within a stone’s throw of the English River.” Another clear-cut planned is “79 square km, nearly the size of pre amalgamation Toronto (97 sq km).”

Again, if this was any other community in Canada rather a remote First Nations community, this cruel proposal and Supreme Court case would not have occurred. Environmental racism and colonialism remain very much alive in Ontario and with our government.

To me this is the point that is being overlooked in all the major media surrounding the decision. Premier Wynne and MNR’s had a decision to make. There was chance (and technically could still be) to respect the basic humanity of the people of Grassy Narrows and share in the stewardship of the environment after countless years of predacious resource policy and toxic poisoning. It is an easy decision to make, and one I believe most people in Canada would not hesitate in making. The Wynne government continues to choose otherwise; this plan can be scrapped if the will is there. As cavalier and strategically cruel as the Kathleen Wynne’s government position is, this infringement of treaty rights  it is nothing new for Grassy Narrows and countless First Nations communities across Canada.

So outside of the fact there is no need for this egregious suffering to occur at Grassy Narrows, what does the SCC’s 7-0 decision mean both for this case and for future implications in Canada. In this previous blog post prior to the decision, I outlined some of the major implications that could occur; with the decision they can now be fleshed out further.

First, for the people of Grassy Narrows who are dependent on hunting and trapping — after their fishery was poisoned with mercury — clear-cut logging has already negatively affected trapping lines and moose populations according locals and is further destroying the livelihoods of those who choose to live a traditional way of life. As Robert Janes stated, “what Grassy Narrows wants more than anything is to maintain its community … a protection of its traditional way of life and finding a way of building a local, sustainable economy.”

I had written previously that this case will “have serious implications on the constitutional authority and limits of what the government of Ontario can do ‘taking up’ lands in the Keewatin area of Treaty 3. Grassy Narrows is justly arguing that the province does not have the power to put limitations on treaty rights; the promise in the treaty is that only Canada/The Crown can grant these authorizations. There are colossal implications at play here as the SCC decides if treaty promises are between ‘The Crown’ is solely the federal government or can include provincial governments. Almost all treaties contain ‘taking up’ clauses which allow the Crown to use treaty lands for various purposes (usually mining and exploitation of natural resources). Historically, the treaty promises between the Crown and First Nations were considered to have been made between the federal government and Aboriginal leaders. It was generally thought that only the federal government could ‘take up’ lands. In the Keewatin case, the Ontario Court of Appeal held that the authority to ‘take up’ has to rest with the Crown that has the underlying title to the land — in this case, the provincial government. What the SCC says will have significance not only in Ontario but across other provinces. If the SCC holds that the provinces are allowed to take up lands, this will give them the benefit of a treaty promise without any of the full fiduciary obligations that the federal government still holds (and is why the Harper government has been so silent on this case).”

In this case, Treaty 3 contains a “harvesting clause” which says the Ojibway have the right “to pursue their avocations of hunting and fishing throughout the tract surrendered” except on lands “required or taken up for settlement, mining, lumbering or other purposes by [the] Government of the Dominion of Canada.” When the treaty was signed in 1873, the land was administered by the “Dominion of Canada” or federal government, but 1912 Ontario’s borders had grown to cover the treaty area.

This ruling addressed the “taking up” clause of Treaty 3, and in the larger context, provinces can represent the interests of the Crown. Chief to this extent, Justice Beverly McLachlin wrote in the ruling that “Ontario has the power to take up lands in the Keewatin area under Treaty 3 without federal approval or supervision.” This means a province can now authorize “development” on treaty lands without federal approval. Provinces can now also issue permits to take up land that infringe on Aboriginal territory. The ruling outlines that, “both levels of government are responsible for fulfilling the treaty promises when acting within the division of powers under the Constitution.” In this case, the court decided that, “Ontario, and only Ontario, has the power to take up lands under Treaty 3.” Interestingly, Manitoba, Saskatchewan, Alberta and British Columbia supported Ontario in the case, while a long list of First Nations backed Grassy Narrows as interveners.

You do have to wonder why the decision would state that Ontario has exercised the power to take up lands for a period of over 100 years, without any objection by the Ojibway. The blockade at Grassy Narrows has been active for almost 15 years, not to mention other very clear cases of “objection” that have occurred to taking up lands in northwest Ontario.

The decision will have a major effect on the future of resource development across Canada for Treaty signatories. Where as the recent Tsilhqot’in decision also recognized the authority of the province to regulate uses of First Nations land, the bar was set much higher with regards to Tsilhqot’in because they were not treaty signatories and had not “extinguished their title rights to the land” (I would argue the major implications in the Tsilhqot’in case are with regards to negotiating tables and the rejection of the ‘postage stamp” approach to title rather than stopping infringement/taking up lands even if it is now more difficult). Others have called Tsilhqot’in decision a Trojan Horse ruling (that is harbouring infringement within title), if that is the case this decision is a full assault. Because Grassy Narrows are a signatory of Treaty 3 they no longer have Aboriginal title rights and instead treaty rights. Ontario still has to take treaty rights into consideration in decisions regarding the land but, as we have seen so often, Section 35 of the Constitution Act is regularly ignored by governments and industry. Again, if this section of The Constitution was any other community rather than Aboriginal people it would not simply be an empty promise. In the  Tsilhqot’in case ruling, justification for taking up any land is now slightly higher than simply consultation and accommodation; for Grassy Narrows the Crown (now Ontario) simply has a duty to consult and try to accommodate interests.

My reading of the Supreme Court decision sees them spending much of the ruling to affirm the importance of “consultation” but a clear and full expression of what this means remains missing. The Crown is supposed to negotiate with Aboriginal communities in good faith and not issue any permits which would cause these communities with no meaningful right to hunt, fish or trap in relation to the territories over which they traditionally hunted, fished, and trapped. To be more specific the SCC reaffirmed that Ontario needs to ensure that there are enough resources left to allow for the “meaningful exercise of the rights.” What precisely that entails is unsurprisingly ambiguous. This “duty to consult” is supposed to not exclude accommodation from the start, i.e. the Crown must be willing to change its initial plans, be open to different solutions and listen to concerns. Still, the Supreme Court ruling goes on to state that “the harvesting rights of the Ojibway over the land must be respected” and that any decisions by the province to permit logging or other development of the land must fulfill the standard of consultation and accommodation of Aboriginal rights.

So, in theory the duty to consult sounds great, but in practice the road to perpetual colonialism is paved in these type of consultations which the court has set out. Duty to consult remains to many people a tool wielded most effectively by industry in preparing its legal approach to infringement. Duty to consult remains the master key to infringe, for the public good (i.e. make money through hydro dams, clear-cutting, air pollution, overfishing, tar sands, tailings ponds, mercury-infused drinking water, etc.) Aboriginal rights, title, and treaty. While the Crown is supposed to accommodate in its consultations, the question of where is it is possible to accommodate is ambiguous. In Grassy Narrows’ case in particular what accommodation will be possible when the province does not recognize the mercury poisoning of the people (despite outlawing people in the area to sell any fish from the are because of high mercury levels) and has continued to unilaterally push forward with a full clear-cut despite Kathleen Wynne visiting the community in 2012 saying she wanted to rebuild Ontario’s relationship with Grassy Narrows to “get it right.” This is despite the fact that “the impacts of past industrial activity, including hydro damming, mercury dumping, and clearcut logging, have put our rights in extreme peril and have had a grave impact on our health, culture, and livelihood. Further forced industrial logging could compound the existing industrial impacts leaving Grassy Narrows with no ability to meaningfully exercise our rights.”

One of the areas I had outlined previously is how this decision could provide a better standard for what consolation fully entails. The Supreme Court of Canada choose to simple re-iterated that where the impacts on rights to hunt and fish are severe, consent may be required (Ph. 52 reference to Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 168). This will have interesting implications. In response to the Ontario Government’s cavalier actions against Treaty Rights, in the 2011 ruling which was in favour of Grassy Narrows, Ontario Superior Court Justice Sanderson had harsh words for Ontario’s approach,: “Ontario’s approach to this litigation, while pleasantly civil, was strongly adversarial. Always focusing on its own proprietary rights, it downplayed the plain and clear reference in the Harvesting Clause to Canada. It characterized as a ‘mistake’ what I have found to be [the Treaty Commissioners’] deliberate attempt to protect the Harvesting Rights of the Ojibway…” This ruling was overturned on March 18, 2013 by the Ontario Court of Appeal which is why this case went to the SCC.  Yet the SCC felt within the scope of the case they would once again leave vague what the duty to consult entails. It seems to me the more strategically vague this definition is, the more leverage government and industry will maintain in legal cases.

It is painfully clear that Ontario and the Wynne government has only met with Grassy Narrows, but they have not heard our voice and concerns regarding their clear cut plans. Any meaningful consultation or a even minor change to their clear-cutting plans remains unheard of at this point. Simply, looking at the absence of even the most minimal accommodation, Aboriginal concerns do not matter in the eyes of this government when there is some cash to be made. There is no “good faith” to be found with this government.

So what is next?  While the ruling did not address whether the basic environmental and human rights standards have been met, it will have major implications from this point on. Further, the decision did not rule on whether clear-cut logging violates treaty rights or on whether the Ontario government has met its treat responsibilities. The decision was on differentiating between the jurisdiction of Canada vs. Ontario as the Crown and “taking up lands.” As an aside, I would argue as with any SCC decisions the criteria is strictly the law and fails to recognize the political implications.

I hope the decision will result in a catalyst to why we need to listen to and support the people of Grassy Narrows. It is a call to action. Now more than ever we need to maintain pressure on the provincial government to live up to the most basic human rights obligations.

Grassy Narrows Chief Roger Fobister said his First Nation will keep fighting to protect its people and land, “While we hoped the Supreme Court of Canada would respect our treaty, we are determined to see Treaty 3 respected… We expect the government of Ontario and Canada to learn from the last ten 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.”

Wabauskang Chief Martine Petiquan states, “The Supreme Court’s decision is inconsistent with our understanding of our Treaty relationship… Our Treaty is with Canada. It is Canada that is responsible for fulfilling the promises made to the people of Treaty 3.” Wabauskang First Nation Councillor Jo-Anne Petiquan-Moore stated, “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… 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.”

Joseph Fobister, who appealed to the Supreme Court of Canada to halt logging on the land he traps on. He told APTN, “The fight isn’t over… The decision doesn’t give the province the power to continue with clear-cutting. The decision puts squarely on the shoulders of the province that they have duty to honour and respect treaty right… There has to be more meaningful consultation… This is by no means an end to our fight against clear cutting. We’ll continue fighting… Of course, (blockades and protests) are still an option we will exercise. Like I said the fight is not over and there will likely be another day in court in the future.”

Youth at Grassy Narrows have stated they do not accept the ruling, adding they’ll continue to exercise their treaty rights may undertake further direct action in order to protect their rights.

AFN Regional Chief for Saskatchewan Perry Bellegarde, who holds the Treaty portfolio for the AFN, stated, “We are dismayed that the Supreme Court failed to recognize the First Nations’ understanding of Treaty 3 including First Nations’ jurisdiction over this territory. 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. Second, the ruling today reinforced the requirement of the Crown to consult and accommodate. Again, given the snail’s pace at which the provinces are moving on their duty to consult and accommodate, this also needs to be addressed according to international standards as affirmed in the United Nations Declaration on the Rights of Indigenous Peoples.”

AFN Ontario Regional Chief Stan Beardy said, “While today’s decision is very disappointing we want to commend Grassy Narrows First Nation for standing up for the rights in their Treaty and using all avenues to protect their rights and their traditional territories. While this decision did not achieve what the people of Grassy Narrows First Nations were seeking, it points to the need to ensure all governments work with First Nations to implement Treaty rights and obligations.”

Do you support Grassy Narrows in protecting their health, water and treaty rights? Come walk in solidarity with Grassy Narrows in Toronto on July 31 at the River Run and hear Stephen Lewis speak with Grassy Narrows in Toronto on July 29. Now more than ever we need to tell the provincial government their plans are cruel, criminal and unacceptable. Please come and make your voice heard. After this ruling, it is more essential than ever.

Further reading:

Clearcuts poison fish: Grassy Narrows ‘River Run 2014’

Grassy Narrows legal case against clearcut logging and respect for Treaty Right begins at the Supreme Court of Canada

Premier Wynne: Give Grassy Narrows A Mercury Free Future For Christmas

We’ve got a few questions about Grassy Narrows

Grassy Narrows requests environmental assessment of logging plan

Grassy Narrows To Resume Blockage If Clear-Cut Logging Operation Starts