Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 93into contemporary thinking and suggests that not only centralists like Macdonald and Morris butalso provincial autonomists like Blake and Fournier all understood at the time that Canada couldact within its s. 91(24) jurisdiction to protect the Indians even if by so doing, it adverselyaffected provincial proprietary rights and that s. 109 rights would be limited by TreatyHarvesting Rights.[422] I later refer to a memo regarding disallowance, prepared by Bernard shortly after theTreaty was signed, which demonstrated that even the strongest of provincial autonomists were ofthe view that Canada could use the disallowance power when a province had exceeded itsjurisdiction. Vipond said in effect that whatever the disagreement between centralists andprovincial autonomists about the complete extent of federal power from Confederation, everyoneagreed that Canada could impinge upon provincial rights when exercising a valid s. 91 power.This indicates that in 1873, everyone, including Morris, understood that at the very least,Canada, in exercising its valid jurisdiction over Indians, could affect proprietary rights.2011 ONSC 4801 (CanLII)[423] Vipond agreed [February 25, 2010 at p. 111] when Canada was exercising a powersquarely within its jurisdiction, it was not acting unconstitutionally. It was not improperlyinterfering with Ontario's exercise of its proprietary powers.[424] In other words, in 1873, even though Morris may have wanted Canada to have broadpowers, he knew Canada's jurisdiction to interfere in provincial matters simply becauseprovincial legislation was against national interests was controversial. At the same time, he alsoknew that everyone, even the provincial autonomists, agreed that Canada could interfere withprovincial legislation in the course of a valid exercise of federal jurisdiction.[425] The uncontradicted evidence was that in 1873, a strong centralist like Morris would haveunderstood that even the provincial autonomists appreciated the difference between federalactions clearly exercised under a valid federal jurisdiction and federal actions purporting tointerfere with provincial actions in the absence of a valid federal power to do so. Everyone,centralist and provincial autonomist alike, understood in 1873 that valid exercise of federal s.91(24) jurisdiction was Constitutional. No one would have viewed a valid exercise of federaljurisdiction that affected provincial rights as unconstitutional meddling or supervision.Morris' Understanding of Section 109[426] Section 109 of what is now The Constitution Act, reads as follows:All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, NovaScotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines,Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, andNew Brunswick in which the same are situate or arise, subject to any Trusts existing in respectthereof, and to any Interest other than that of the Province in the same. [Emphasis added.][427] In 1873, Morris was aware of the content of s. 109 of the BNA Act, which gave Ontario asone of the four original Canadian provinces the right to receive all the revenues from Crownlands in Ontario. He was aware it provided that s. 109 rights were subject to any other interestother than the interest of the province in the same.