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- Title
GRASSY NARROWS X: AN ALTERNATIVE ARGUMENT.
- Authors
DÜL, ROBERT
- Abstract
In 2014, the Supreme Court of Canada ruled on a claim by the Grassy Narrows First Nation (Keewatin) that Treaty 3 had been entered into between the Ojibwe predecessors and the federal crown specifically, thereby disallowing the Ontario provincial government from granting logging licenses and interfering with Aboriginal rights to maintain traditional practices. The claim was defeated based on formalities of constitutional federalism. The unitary nature of the Crown allowed the federal government to pass beneficial interest to the provincial government. This manuscript argues that, notwithstanding specific instances to the contrary, there is no bar to applying contract law to treaties between the Crown and Indigenous communities. By applying contract law rather than constitutional law, the terms of the treaty and the intentions of the parties must be viewed objectively from the perspective of a third party observer. There was no meeting of the minds with regard to Treaty 3, as the Ojibwe intended to bargain with the less localized and more protective federal government in Ottawa, rather than the provincial government which they believed to be more self-interested. This mistake of identity, precipitated from misrepresentation on the part of the Crown agent, is material to the contract. Because there is no consensus ad idem, the treaty is void ab initio, vesting no beneficial interest in the land to the Crown. The First Nation community may now argue for Aboriginal title to the land, much evidence for which is provided by the facts surrounding the making of the former treaty.
- Subjects
CANADA. Supreme Court; PROVINCIAL governments; CONTRACTS; FEDERAL government; CONSTITUTIONAL law
- Publication
University of Toronto Faculty of Law Review, 2015, Vol 73, Issue 2, p32
- ISSN
0381-1638
- Publication type
Article