Keewatin case and US Non-Intercourse Act claims

So I’ve managed to browse through the Keewatin decision. It’s long (over 300 pages).

My first impression (I usually reserve my ‘first’ impression for after I’ve actually read twice and made some notes, which I clearly haven’t done here) is that plaintiffs managed to frame and lead and extremely strong case. I’d love to comment more on this some other time, but I really appreciated how this case was framed.

It reminds me in some ways of a Non-Intercourse Act claim. These are U.S. claims. The Non-Intercourse Acts (there were several) are roughly analogous to the Royal Proclamation in purpose: to ensure that land deals are made only with the central government. This prevents speculators from purchasing lands directly from Indian tribes or First Nations, and increasing tensions (a major issue in 18th century North America).

In the United States, only the federal government is permitted to enter into land cession treaties with Indian tribes. And yet, some states, for example New York, decided to enter into treaties with tribes all by themselves. The basis for a Non-Intercourse Act claim is not an attack on treaty implementation, but rather a jurisdictional challenge to the state’s, again, say New York’s, ability to take the land under the treaty, absent ratification of the treaty from the U.S. Congress.

Keewatin similarly involves a situation where treaty implementation is not directly under attack. In this case, Ontario has made a practice of using lands in such a manner as to be incompatible with harvesting rights guaranteed in the treaty. The argument is not that Ontario is failing to implement the treaty, but rather that Ontario lacks the power to use lands in a matter incompatible with harvesting rights. In other words, Ontario lacked and lacks the jurisdiction to make certain land use decisions.

In Keewatin, plaintiffs suggested that the plain language of the treaty suggested that any actions by Ontario to restrict or limit harvesting rights required federal government approval. Absent completion of this procedure, Ontario’s land use decisions lack a jurisdictional foundation. The decisions are in the exclusive legislative and jurisdictional competence of the federal government.

As in the United States, treaty making creates and maintains a special relationship between the federal government and First Nations. While modern treaties, a primary vehicle for reconciling aboriginal nations and Canada, also involve provincial or territorial governments for several practical reasons, there are legal reasons founded both in the common law and in the constitutional law of each country to reinforce the particular and special relationship between the central government and indigenous peoples. Keewatin involves particular treaty language and the doctrine of inter-jurisdictional immunity (a constitutional law doctrine), for example.

For those interested in how these types of arguments play out in the States, there is a cert petition pending at the US Supreme Court for one NIA claim right now (Oneida Nation v. New York). More on that some other time.