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Legal Update

Ontario, Canada and Abitibi Appeal Keewatin Decision

Kenning Marchant, D.Jur.
The Marchant Practice LegalUpdate

Ontario, Canada and Abitibi Consolidated are appealing the Ontario Superior Court decision in Keewatin v. Ontario Minister of Natural Resources.

The Court ruled that Ontario cannot take up lands under Treaty No. 3 “for settlement, mining, lumbering or other purposes” that would interfere with First Nation hunting and fishing rights – without the approval of the federal government that negotiated the treaty.

The Court of Appeal will have a number of appeal grounds presented to it.

Ontario asks that the decision be set aside to properly recognize Ontario's constitutional capacity to authorize forestry operations on lands subject to Treaty 3. It undertakes the obligation to discharge the honour of the Crown in relation to treaty rights.

Canada objects to the decision creating what would amount to a federal land use regime over the Keewatin Lands, which should be provincial jurisdiction.

Abitibi is concerned that all Crown patents, licences, permits and leases granted by Ontario in the Keewatin Lands since 1912 have been put into question by the Superior Court decision.

Counsel for the First Nation is expected to ask the Court of Appeal to confirm the original Superior Court of Justice decision that prior federal approval is required for Keewatin land uses that could affect Treaty 3 harvesting rights.

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