"In its recent decision in Keewatin v. Minister of Natural Resources ("Keewatin"), the Ontario Superior Court of Justice held that the Province of Ontario does not have the authority under either Treaty 3 (described below) or the Constitution Act, 1867 to "take up" tracts of land for forestry within lands subject to Treaty 3 that were added to Ontario in 1912 (the "Keewatin Lands") so as to limit the right to hunt and fish guaranteed to the plaintiffs under the Treaty. As will be discussed below, if allowed to stand, this judgment may have profound implications for the natural resources sector in Ontario and across Canada.

On October 3, 1873, Canada entered into Treaty 3 with the Saulteaux Tribe of the Ojibway Indians in respect of lands that are situated in what is now northwestern Ontario and eastern Manitoba.

The Keewatin Lands became part of the Province of Ontario by virtue of the Ontario Boundaries Extension Act. The Treaty 3 lands, including the Keewatin Lands, cover an area of approximately 55,000 square miles.

Treaty 3 contains the following "harvesting clause" (the "Harvesting Clause"), which seeks to preserve the Ojibway Indians' right to hunt and fish (the "Treaty Harvesting Rights" or "Harvesting Rights") on the lands subject to the treaty in the following terms:

Her Majesty further agrees with Her said Indians that they, the said Indians, shall have the right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada, and 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, or by any of the subjects thereof of duly authorized therefor by the said Government. "

Get the Story:
Vaso Maric and Murray J. Braithwaite: Keewatin Decision Potentially Invalidates Ontario Licences And Leases Granted Within Treaty Lands (Mondaq.com 8/30)
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