Ontario Court of Appeal doesn’t like the Keewatin two step

by reconciliationproject

The case is Keewatin v. Ontario (Natural Resources) (http://canlii.ca/t/fwjp2). It’s a bit of a monster. The decision comes from the Ontario Court of Appeal. The plaintiffs succeeded at trial (http://canlii.ca/t/fmzc4), and defendants won on appeal. I believe the plaintiffs (Keewatin et al) have applied for leave to appeal to the Supreme Court of Canada. This is a pretty big case (both in terms of the principles at play and in terms of the sheer size of the decisions – at least the trial decision, that is). I’m not in the business of handicapping leave applications to the SCC, but some of the CA’s reasoning may make this case more likely, rather than less, to be heard by the Supreme Court.

I have several issues with the reasoning in this decision, but I must say I find the decision to be a bit stronger each time I go through it. I get the sense someone could probably attempt to teach a course on treaty rights, using this case as a model – and going through a bit of the trial or appellate reasons each class (I’m also not sure how wise that would be). This is reflected not so much by profound issues with the Court’s analysis, but with more abstract issues relating to how the Court has framed this case.

Irrespective, this entire case, and indeed, the Court of Appeal decision, specifically, is pretty damn interesting. Like William, this may require several posts to get through various aspects of the case. Also like William, I didn’t think the trial judgment, which I substantially agree with would make survive a trip to the appellate court.

Here, I’ll give a general introduction to the case.

It’s about ‘taking up’ – a phrase which has always confused me, (though I’m happy because the concept seems to confuse everyone according to the ONCA – which, incidentally, has only muddied the water more for me). Taking up is apparently when the Crown asserts proprietary rights OR jurisdiction over a given territory (leaving one to ask whether the ONCA thinks its even possible to assert jurisdiction over unceded lands? This is, admittedly, not as big an issue in Toronto as in, say BC, though such situations are not entirely absent in Ontario, either).

Essentially, the Court is being asked to answer two questions (helpfully repeated at paragraph 7 of the Court of Appeals judgment):

Question One: Does Her Majesty the Queen in Right of Ontario have the authority within that part of the lands subject to Treaty 3 that were added to Ontario in 1912, to exercise the right to “take up” tracts of land for forestry, within the meaning of Treaty 3, so as to limit the rights of the plaintiffs to hunt or fish as provided for in Treaty 3?

Question Two: If the answer to question/issue 1 is “no,” does Ontario have the authority pursuant to the division of powers between Parliament and the legislatures under the Constitution Act, 1867 to justifiably infringe the rights of the plaintiffs to hunt and fish as provided for in Treaty 3?

So then, this litigation turns on the relative authorities of Ontario and Canada with respect to Treaty 3. I think this is where the Ontario Court of Appeal decided to focus much of its efforts, and it could help explain how the Ontario Court of Appeal reached its conclusions. I won’t get into my thoughts on the second question here, except to say that I don’t really like it (I just don’t see what justifiable infringement has to do with interjurisdictional immunity – but unpacking both those terms requires a bit of space and to be fair, there is an alternative way of viewing this question which permits us to escape that question…possibly).

Treaty 3 contains a harvesting clause which states lands should not be taken up without the consent of the Canadian government, helpfully reproduced by the Court of Appeal at paragraph 8:

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 duly authorized therefor by the said Government.

The issue with this passage is this phrase, “taken up for settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada”. This suggests that only the government of Canada has the power to ‘take up’ lands subject to Treaty 3. Presumably the federal government could take up lands for provincial purposes, which I believe is more or less where the trial judge went with this clause.

The trial judge suggested a ‘two step’ process for takings up – first that Ontario would need to seek authorization from the owner of the land, and second that Ontario would need to seek authorization from Canada before taking up any lands in the territory. The rationale for Canada’s approval, beyond the plain text of the harvesting clause, is that the honour of the Crown imposes a burden on Canada to ensure the treaty commitment is fulfilled. At least, that’s how I’d put it.

The trial decision is quite lengthy, and I won’t analyse it at any length here – in fact, I’m not even particularly concerned with the evidentiary principles at dispute at the ONCA. What I would state is this case follows a disturbing trend in aboriginal law of absolutely no deference to the initial fact finder (here, a trial judge). In general (but not exclusively) appellate courts defer to a trial judge’s factual findings, as well as the statements of claim and defences filed by the Parties – rather they review the law and the legal principles as applied by the trial judge.

It is a relatively extraordinary circumstance when an appellate court reverses a trial judge on findings of fact, rather than findings of law. Except in aboriginal law. This case is notable because the Court of Appeal goes out of its way to stress its issues with the trial judge’s characterization of the facts. It is extraordinary because the Court of Appeal identified profound defects (in its mind) in the trial judge’s analysis of the law and even identified an alternative legal analysis and alternative principles to guide its conclusion. Yet, this focus on the facts of the case remains.

So the claimants in the Keewatin case are claiming that lands were never properly taken up by Ontario, and further that attempts to develop those lands, in this case through forestry licenses, are invalid. Let’s be clear about one thing at the outset – this is not a duty to consult case. Claimants aren’t even suggesting they should have been consulted about the licenses, rather they are suggesting that Ontario is incapable of issuing the licenses in the first place.

The Ontario Court of Appeal roundly rejected the findings of the trial judge – and particularly that ‘two step’ process for taking up. I get the sense the CA would have liked to go farther and dissect just about every paragraph of the trial decision, but blessedly reserved their reasoning to what they determined to be the key issues in dispute. Anyone who has read my post raging on findings in the alternative (link) will know I genuinely appreciate the Court’s forensic approach. These reasons deserve credit for being focused (“It is not necessary to answer Question Two.”).

One of my favorite lines in this judgment comes at para 88. The comment is offered gratuitously by the Court, and I’m not entirely sure why. It does reveal the extreme limitations of civil litigation and the asymmetries faced by aboriginal claimants when using a supposedly ‘fair’ civil litigation system. The Court points out “We note as well that the respondents did not raise any issue regarding Ontario’s ability to take up lands under Treaty 3 with federal authorization in their pleadings. Quite the contrary, in discovery admissions that were read in at trial respondents’ counsel stated that lands could be validly taken up under Treaty 3 if federal authorization were in place.”

This reminds me of Lax Kw’alaams (a case where the Supreme Court adopted a harsh position on dealing with aboriginal claims in civil litigation, particularly the process of amending pleadings – incidentally, I did like aspects of Lax: http://wp.me/p1AYud-M), and represents the kind of harshness I was worried about in that case. You start civil litigation by issuing a statement of claim. The statement of claim contains your pleadings. At this point, you haven’t received anything back in the form of a statement of defence, no evidence, no discovery (a process where one ‘discovers’ evidence, and probably very nice fees as well – discovery can be pricey and lengthy) and certainly no actual legal argument.

So it seems odd for the Court to cite all the way back to the pleadings here. Although, I should point out that plaintiffs can and often do change their pleadings throughout the course of litigation. I’m not sure plaintiffs here would have had the ability to change their pleadings after the decision of the trial judge (did I mention this is only one phase of this case? It’s only a resolution of a preliminary question in order to expedite the case itself! So there’s presumably plenty of litigation left).

Here’s my problem with this paragraph. It would be like the Court of Appeal stating that Canada and Ontario shouldn’t really complain about a ‘two step’ process because they didn’t specifically deny that in their statements of defence. That they didn’t know about such a two-step process (it was formulated by the trial judge) is really their own problem – a harsh outcome that aboriginal claimants do actually face from time to time (and would here, though, thankfully, the Court pointed out this pleadings defect somewhat gratuitously). What makes it harsh is that kind of remark is rarely directed at the Crown defendant, and certainly wasn’t here.

I’m not sufficiently familiar with this case to know exactly how many of these issues sprang up in the course of the trial decision, or for that matter at oral arguments. I have noted that Courts, particularly appellate courts (including the SCC) can display a disturbing tendency to wander all over the place in their analyses (for example on ‘defining the right’) on some of these cases – to the point that I wonder whether the claimants are getting a resolution of the disputes they brought into court.

In essence, the Court of Appeal held that Ontario doesn’t need federal approval to ‘take up’ lands within the claim area. The Court of Appeal reasons that Ontario had complete ownership of the lands in the claim area (it’s a bit fuzzy to me whether Ontario’s ownership, in this Court’s view, is affected in any way by the Treaty, but it strikes me that it is).

This is not necessarily an unduly harsh conclusion – the Court of Appeal appears to have held that Ontario now holds the treaty obligation, rather than Canada (I think, this is one point I’m not too sure on, and actually need to read the judgment a few more times). I think it follows pretty closely from the way I think the Court of Appeal has framed this case. In my next post, I’ll get into why that casting of this case, as well as a good chunk of the law cited by the CA deserves some critical examination and scrutiny.