The Grassy Narrows First Nation suffered a defeat on Friday when the Supreme Court of Canada upheld a lower court ruling that the provincial government of Ontario has the right to issue logging licenses on their traditional lands.
While Friday's ruling was in reference to the 141-year-old treaty, known as Treaty 3, between the Crown and Ojibway Indians, it will likely influence how Canadian courts and natural resource companies approach lands under treaty nationwide.
"I agree with the Ontario Court of Appeal that Ontario and only Ontario has the power to take up lands under Treaty 3," Chief Justice Beverley McLachlin wrote in the unanimous decision.
The Grassy Narrows' appeal of the lower court's ruling argued that because the treaty was made with the federal Crown the provincial government should be forced to receive federal approval before issuing licenses for land use like logging and mining.
"The promises made in Treaty 3 were promises of the Crown, not those of Canada," according to the court. "Thus, when the lands covered by the treaty were determined to belong to the province of Ontario, the province became responsible for their governance with respect to matters falling under its jurisdiction."
However, the court also made it clear that the provincial government's rights for development are not absolute. A “harvesting clause” in Treaty 3 gives the First Nation the right “to pursue their avocations of hunting and fishing throughout the tract surrendered,” meaning that "if the taking up leaves the Ojibway with no meaningful right to hunt, fish or trap in relation to the territories over which they traditionally hunted, fished, and trapped, a potential action for treaty infringement will arise."
But according to CTV News, the Grassy Narrows people say there is already scientific evidence that recent clearcut logging in their territory has worsened the impact of mercury poisoning that began in the 1960s when a paper mill upstream polluted their territory, and that the recent logging has raised mercury levels in fish above the Health Canada limit for safe human consumption.
The Grassy Narrows are known for maintaining the longest protest blockade in Canadian history as a method of stopping logging on their land, and leaders are making it clear after the loss in court that the fight is not over.
“We believe Ontario and industry are morally and politically obliged to seek our consent before logging our lands. Our people will ensure that the government, public, corporations, and courts never forget the terrible effect that industrial logging has had on the health and welfare of our people,” J.B. Fobister, a Grassy Narrows hunter who helped initiate the case, said in a statement. "While we are disappointed in today’s outcome we will be continuing to fight to protect the health, welfare and culture of the people of Grassy Narrows using all the tools available to us."
"This isn’t going to change who we are – a land based people that relies on our forests and our water,” Judy Da Silva, Lynx Clan mother, said in a statement. "We will continue to sing our songs, practice our ceremonies, use our land, and heal our people.”
Leaders and supporters of the Grassy Narrows are planning a protest walk in Toronto for July 31.