I'm not sure myself of the boundaries and the map be correct, but I would be cautious about assuming their are no implications for all of the Province. What I found interesting in the Fasken Martineau commentary was their discussion about Treaty 9

In assessing the likelihood of successful claims in respect of lands under Treaty No. 9, it is important to note a critical distinction in the wording of Treaty No. 3 versus Treaty No. 9. In Treaty No. 3, the taking-up clause clearly vests the power to take up lands in the federal government. In Treaty No. 9, although it is a treaty between Canada and the Aboriginal peoples identified, the taking-up clause is not as specific as to who is authorized to take up lands under the treaty. Here are the respective clauses, for comparison:

In correlating the two provisions, what is missing from Treaty No. 9 is identification of the agency of the taking up. Treaty No. 3 has the words "by Her said Government of the Dominion of Canada" at the end. In Treaty No. 9 one would expect the taking-up clause to end with the words "by the government of the country" but there is no agency identified. Treaty No. 9, therefore, is genuinely ambiguous and evidence of the historical context and communicated, common expectations of the parties would be even more important to a challenge under Treaty No. 9 than it was in the Keewatin case with respect to Treaty No. 3.

Given the patent ambiguity in drafting that was introduced in the wording of Treaty No. 8, and used in subsequent treaties, we expect that historical evidence about the context in which Treaty No. 8 was negotiated and the communicated common intentions at the time, will be significant in a case that interprets any of the later treaties with respect to the jurisdiction and authority of a province to take up land under the treaty. A case under Treaty No. 9, therefore, would involve extensive evidence about the making of both Treaty No. 8 and Treaty No. 9.

We observe that when Treaties 8, 9 and 10 were entered into, it was known that the treaties covered lands within existing provinces (British Columbia, Alberta, Saskatchewan and Northwest Territories for Treaty 8, Ontario for Treaty 9, and Saskatchewan and Alberta for Treaty 10) so it is understandable that the language of these treaties would be different than the drafting in Treaties 3 to 7, which were entered into when no provinces existed within the areas covered by the treaties. Arguably, when the taking up clause was first introduced in Treaty 3 the clause referred to the Dominion government because Treaties 3 to 7 all related to land that was Dominion land not within any province, but when land within a province was being dealt with, new language would be required to reflect the division of powers. The court in Keewatin, however, concluded that the Treaty 3 Aboriginals specifically required that the Dominion government, and not a provincial government, have the authority to take up lands.

In the event a court were to find that the provinces lacked authority to take up lands under any of Treaties 8-10, there would be issues as to (1) how leases and licences can be issued going forward, and (2) the status of leases, licences, royalties and profits under licences and leases that were granted pursuant to taking up that was not authorized under the treaty.

Going forward, the problem can presumably be addressed through some framework of coordinated federal and provincial inter-delegation. We note that hunting, fishing and trapping rights in the Prairie Provinces have already been addressed by Natural Resources Transfer Agreements with the federal government, so that the treaty right to hunt fish and trap should be read in light of these agreements with the provinces. Accordingly, the Keewatin decision should have little impact on that portion of Treaty 3 lands situate in Manitoba, lands subject to Treaties 4 to 7, lands under treaty 8 situate in the Prairie Provinces, British Columbia or Northwest Territories, or lands under Treaty 10.

With respect to licences and leases already issued, the first issue would be to determine whether the land use conducted under the licence or lease has materially infringed the Aboriginal harvesting rights under the treaty. If there is immaterial infringement, then the grant of the licence or lease would not have been a taking up by the province in violation of the treaty. The Keewatin decision was clear on this point.

If, however, land use under such licences or leases did materially infringe on treaty harvesting rights, then there would presumably be claims for restitution brought by or on behalf of affected Aboriginal groups. Such claims could in theory be brought against both the province and the grantee of the licence or lease, seeking some portion of royalties and revenues from the offending land use, compensation for diminishment of the value of harvesting rights, or a combination of both. It is difficult to predict the potential scope of liability without regard to the specific circumstances of each particular case, including applicability of limitation periods. In any event, there is significant potential for expensive litigation, uncertainty as to potential liability, and uncertainty as to status going forward.

We expect the Keewatin decision will be appealed.

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