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Mainstream media gets it wrong


Mainstream media gets it wrong
And a new term introduced
Bill Gallagher
Lawyer/ strategist

Among the many headlines that ran across the country about a court ruling in Canada's largest province, the Globe & Mail ran the small headline that "Ontario Rules Against First Nation" - but it's the wrong take on the ruling entirely! (ie: Treaty #3 western Ontario / parts of Manitoba – formerly Keewatin).

The native side was arguing about the literal distinctions as to the original signatories to Treaty 3, in this instance Canada and not Ontario, thus arguing that only Canada today could address the treaty's application.

But the top court for Ontario said NO to taking a literal approach by ruling that, in fact, the treaty was signed with the Crown (not a level of government) and that Ontario represents the Crown in this instance (not Canada). And that in Canadian law represents “the living tree doctrine” that says the constitution is organic and must be interpreted in a progressive manner.

Then (and this is the key to the decision being a native WIN) the court went on to define how the duty to consult and the duty to accommodate applies in Ontario today regarding the use of lands (called 'taking up') by others at the expense of natives.

The court even introduces a brand new term for this process - calling it 'honourable management' - thus in terms of substantive law it's far from being a loss for natives.

In fact, it is instead a major clarification and enhancement of treaty rights by the Ontario Court of Appeal.

I have included some excerpts that rank this ruling as a major native legal win. Indeed the native side were awarded costs.