Agreeing to Share: Treaty 3, History & the Courts

Introduction*

In 2014, the Supreme Court opened its landmark judgment in Grassy Narrows v. Ontario (Natural Resources), 2014 SCC 48 (“Grassy Narrows”) with the statement that on entering into Treaty 3, the Ojibway[1] “yielded ownership of their territory” to the Dominion of Canada in exchange for reserve lands, payments, and limited rights on non-reserve lands. The remainder of the decision addresses whether the present-day provincial government is authorized to limit the Treaty 3 harvesting right. There is no mention of the fact that the Court’s opening statement is contrary to the Ojibway understanding that the treaty was an agreement for both parties to share in and benefit from the lands, or that that understanding had been unequivocally confirmed by the trial judge three years earlier in the Grassy Narrows trial decision, Keewatin v. Minister of Natural Resources, 2011 ONSC 4801. 

Grassy Narrows is emblematic of a persistent pattern in judicial interpretation of Crown-Indigenous treaties. As the trial decision confirms, there is strong support in the historical record for the Ojibway understanding of the treaty. In the result, however, the appellate courts disregarded these findings and upheld the Crown’s position that on entering into treaty, the Ojibway relinquished all authority in respect of their lands. As a result, the decision exacerbates the disconnect between Indigenous Peoples’ understanding of the treaty and their ability to obtain meaningful outcomes through the courts.

Treaty 3 in Context 

The numbered treaties, including Treaty 3, collectively establish the foundational terms by which Indigenous Peoples and the Crown agreed to co-exist together in large portions of what is now known as western Canada. The treaties remain essential elements of Canada’s legal and constitutional structure, as evidenced by the recognition and affirmation of treaty rights in the Constitution Act, 1982.

The Lake of the Woods Ojibway approached the negotiation of Treaty 3 in the context of a longstanding tradition of treaty-making with other Indigenous nations and with a robust governance system which included distinct processes for determining how lands and resources would be shared. They also negotiated Treaty 3 against the backdrop of the Royal Proclamation of 1763, which both simultaneously recognized and undermined Indigenous Peoples’ land rights, and the Treaty of Niagara, which reflected the Indigenous parties’ understanding that they would remain self-determining, independent nations in their dealings with the Crown. These factors contributed to the Ojibway understanding that Treaty 3 was an agreement to mutually share and use the treaty lands.