Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 94[428] Counsel for the Plaintiffs submitted that a number of memos and cases shed light oncontemporaneous understandings, and therefore Morris' likely understanding, of s. 109 in 1873.[429] Again, Vipond gave evidence that the reasoning of provincial autonomists Fournier,Blake and Bernard with respect to British Columbia legislation in relation to Indians in 1875 and1876 highlights what everyone understood about federal powers, even before St. Catherine'sMilling was decided. Morris may have viewed federal powers as broader, but centralists andprovincial autonomists alike understand from the wording of s. 109 that provincial powers overland could be qualified by pre-existing interests. In recommending disallowance of BritishColumbia legislation, Bernard, a provincial autonomist who had narrower views about the properscope of federal jurisdiction than Morris, analyzed the role of s. 109 in protecting the rights andinterests of the Indians in lands located in a province with s. 109 power. He concluded that theprovince's ownership rights over provincial Crown land were qualified by a "trust existing of inrespect thereof" or an "interest other than that of the province alone." Bernard opined that Indianrights qualified the province's ownership rights. Vipond presumed protection of existing Indianinterests was "built into s. 109." His evidence of February 26, 2010 contains the following:Q. … looking at this through the eyes of a politician, not as a lawyer… what this memorandum isgetting at is the idea that the provincial government does not have an unqualified ownership in landbecause of Section 109. It … takes its interest subject to the interests of others that may exist.A. That's how it appears upon reading it, yes.Q. … highlighting this as something that actually has a role in protecting the rights of the Indians,whatever the nature of those rights are. …?A. That's what it appears, yes.Q. … that's something that would not be remarkable to the Liberals or reformers, because they…strongly believed in the idea that individuals's rights should not be displaced by the sovereignleviathan… is that people's rights should be respected, particularly in respect of land?A. Yes, at the extreme, when those rights are deprived ...Q. …you pointed at Section 109 when you were discussing St. Catherines and … highlighted … theimportance of Section 109 as affirming provincial ownership of land.A. Yes.Q. But another part of that, built right into it, is the protection of existing interests in those lands,correct?A. Yes.Q. And that includes the Indian interests, correct?A. I presume. …[430] The perception that the wording of s. 109 of the Constitution Act, 1867 would protect theinterests of the Indians and that Treaty Harvesting Rights would be an interest to whichprovincial interests were subject, was affirmed in a series of cases decided in the late 19 thcentury. Vipond said that jurisprudence is relevant to contemporary understanding. For instance,in the St. Catherine's Milling decision, it was acknowledged that Indian title was "an interest inland other than that of the province in the same," a burden on the Crown's title until such time asit was removed.2011 ONSC 4801 (CanLII)[431] Later in these Reasons, I refer to the reasoning of Dean Gérard La Forest (as he then was)set out in Natural Resources and Public Property under the Canadian Constitution (Toronto:University of Toronto Press, 1969).