Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 95Morris' Understanding About Involvement of Dual Governments in Land Use Matters[432] Counsel for Ontario submitted it was "inconceivable" that in 1873 Morris would havecontemplated the possibility of federal in addition to provincial involvement in authorizing usesof land within a province. He submitted that that is a recent development.[433] Counsel for the Plaintiffs submitted that early case law supports his contention thatinvolvement of dual governments in authorizing land uses because of intersecting jurisdiction isnot a recently developed concept.[434] Chancellor Boyd's reasoning in Seybold provides an early example. In 1903, theHarvesting Clause was being analyzed and its implementation was being understood to possiblyinvolve both provincial and federal governments. As the trial judge in St. Catherine's Milling,Boyd would have understood that the 1873 surrender had given Ontario all the beneficial interestin the surrendered lands. He had read the Treaty and seen the express reference to the DominionGovernment in the Harvesting Clause. He understood the reference to Canada was to its roleunder s. 91(24), not as owner. He understood the role of the Dominion Government vis-à-vis theIndians, even inside a province. He made it clear that in his view, both the federal governmentand the provincial government could have different roles, at p. 397:The true method of both governments, however, appears to be not to stand at arm's length, but toengage in a joint or tripartite transaction whereby the rights of the Indians will be secured through theintervention of their protector, the central government …2011 ONSC 4801 (CanLII)… and the interests of Ontario guarded in respect to the ultimate enjoyment of the proceeds of thesurrendered land ………in case the band of Indians cease to exist. Such a combination of parties is also desirable in orderthat the land may be sold to the satisfaction of the Indians and on proper terms. It is the business ofthe Dominion to protect the interest of the Indians and to see that the best price is obtained for theland, and so far the price is concerned that is also the concern of Ontario. …The question is left open in the St. Catherines Milling and Lumber Company case as to "otherquestions behind", i.e., with respect to the right to determine to what extent and at what periods theterritory over which the Indians hunt and fish, is to be taken up for settlement and other purposes. Iinfer that these rights will be transacted by means of and upon the intervention of both general andlocal governments, although the central government may choose to deal ex parte with the Indians forthe extinction of their claims to land. Still it appears preferable, for the sake of the Indiansthemselves, as well as for present and future peace, that the allocation of particular or treaty reservesas well as the sales of surrendered lands should be upon conference with the band and with theapproval and co-operation of the Crown in its dual character as represented by the general and theprovincial authorities.[Emphasis added.]He inferred from the question left open by the JCPC that the right to determine to what extentand even what periods the territory over which the Indians hunt and fish would be "transacted bymeans of and upon the intervention of both general and local governments."