Aboriginal communities cannot always look to the federal government to protect their rights, after the Supreme Court ruled that the provinces have the power to oversee development of aboriginal lands by outside businesses.
Taken together with the same court's ruling two weeks ago on aboriginal rights to control their ancestral lands, the decision Friday affirms the rights of provinces but also demands a high standard of those governments in protecting native interests.
In the two rulings, the court has created a "protective shield" for aboriginal communities, according to Brian Slattery, a professor at York University's Osgoode Hall Law School.
"The 'honour of the Crown' has emerged as the overarching constitutional principle," Prof. Slattery said.
"If you take the view that the federal government is the only government that would stand up for aboriginal peoples, no, this is not good news" for aboriginal communities, he said of the affirmation of provincial powers. "But what the court is saying is that the courts and the constitutional obligations stand as a shield of aboriginal rights." As a result, provinces will need to serve the best interests of aboriginal communities if developments are to go ahead, he said.
At stake in Friday's ruling was the fate of a forestry project proposed for lands in Ontario covered by an 1873 treaty between the Ojibway people and the Canadian government. (The Grassy Narrows and Wabauskang First Nations brought the case.) The Ojibway argued that only Canada could properly protect their interests, and that it had promised to do so forever. Treaty 3 established hunting and fishing rights for the Ojibway, but said the Crown could "take up" portions of the land for logging, mining and other such uses. In 1912, the boundaries changed, and land that had been part of the Northwest Territories, and therefore under federal supervision, passed to Ontario.
The trial judge who first heard the case sided with the Ojibway, saying that federal approval was necessary first. But the Ontario Court of Appeal, and on Friday the Supreme Court, said the original treaty made clear that the land could be taken up by whatever level of government controlled it.
The ruling two weeks ago covered a chunk of British Columbia to which the Tsilhqot'in claimed title – a claim the Supreme Court upheld. But both rulings said provincial governments can make decisions that affect treaty rights and aboriginal title. And both said the powers of government are subject to limits and an effort must be made to address First Nations' concerns, Robert Janes, who represented Grassy Narrows First Nation, said in an interview.
The Supreme Court "is doing away with the jurisdictional differences between the federal and provincial governments but strengthening the protections" afforded to First Nations.
Mr. Janes said his clients are disappointed with the decision. The Ojibway have preferred to deal with the federal government, which they see as a trustee with a stronger duty to protect their interests.
But the court has not yet been asked to address their core issue of how clear-cutting affects the First Nations' treaty rights, he said, so the bigger fight is yet to come.
"In the end, they are quite determined to carry on trying to protect their rights and are obviously going to take advantage of the tools that the courts have given them.
Government is going to have to have a serious engagement with Grassy Narrows and try to reach some kind of common understanding about how things should work."
Governments and companies will need to make sure they consult with and accommodate native concerns, the rulings said. "It has always been our plan to work with aboriginal communities as partners, building trust and relationships by listening to their views and by sharing information," said Ivan Giesbrecht, a spokesman for Enbridge, which hopes to build the proposed Northern Gateway pipeline from Alberta to Kitimat, B.C.
Ontario Regional Chief Stan Beardy said he is disappointed that any level of government believes it can assert jurisdiction over the traditional lands of First Nations.
With a report from Kelly Cryderman