Keewatin v. Minister of Natural Resources

Part 1. Introduction 3[16] The Treaty clearly specifies that without federal authorization, Ontario cannot interferewith their Treaty-protected Harvesting Rights. Only the federal government, the governmentspecifically charged with their welfare under the Constitution, had jurisdiction in 1873 and hasjurisdiction today to limit (or before 1982, to extinguish) these Rights. When the Commissionersmentioned that the Dominion must authorize any elimination of their Treaty Harvesting Rights,they meant Canada.[17] From the Ojibway perspective, Ontario's extreme focus on its own property rights isunwarranted and legally incorrect.[18] While Ontario can, apart from the Treaty, authorize uses of Crown lands under s. 109 thatdo not significantly interfere with their Treaty Harvesting Rights, it cannot authorize uses thatdo. Only Canada can grant such authorizations because only Canada has s. 91(24) jurisdictionover their Harvesting Rights. Under the Treaty, Ontario needs approval from Canada or federallegislation allowing an activity that significantly interferes with Harvesting Rights.2011 ONSC 4801 (CanLII)The Issues to be DecidedQuestion One[19] All parties agree that as beneficial owner of lands now in Ontario, Ontario hasjurisdiction to issue forestry licences under s. 109 of the Constitution. The question is whetherOntario can limit Harvesting Rights. The Plaintiffs submit Question One does not ask whetherOntario as owner is entitled to pursue its s. 109 rights in respect of those lands. It can, but only aslong as by so doing, its activities do not violate Treaty Harvesting Rights. Ontario's s. 109 rightsare limited by Treaty Harvesting Rights. Unless the Treaty specifically authorized Ontario to doso, and the Plaintiffs submit that it does not, Ontario lacks jurisdiction to significantly interferewith Treaty Harvesting Rights. Both under the Treaty and the Constitution, Canada can limit (orbefore 1982 extinguish) Treaty Rights. To the extent that Ontario authorizes forestry activitiesthat significantly infringe the hunting and trapping rights constitutionally guaranteed, it intrudesimpermissibly into federal jurisdiction.[20] Counsel for Ontario concede that it must respect Treaty Rights but submit that the Treatyallows Ontario to "take up" lands in Ontario and by so doing, to limit the area where the Ojibwayhave Treaty Rights to hunt, fish and trap.[21] Counsel for Ontario submit that in 1873, the Ojibway understood and agreed that theirHarvesting Rights would be progressively and increasingly limited by "taking up"/use/occupation of land as time passed.[22] Counsel for the Plaintiffs submit that the Commissioners promised that the Ojibwaywould have their Harvesting Rights as in the past, knowing that Canada could permit theirlimitation, or before 1982, their extinguishment.[23] In 1891 Canada passed legislation that the Plaintiffs contend extinguished Treaty 3Harvesting Rights on lands "taken up" in the Disputed Territory.