Keewatin v. Minister of Natural Resources

Part 1. Introduction 4[24] Counsel for Ontario submit that when Ontario became the owner of the Keewatin Landsin 1912, the 1891 Legislation became applicable to the Keewatin Lands as well.[25] Counsel for the Plaintiffs submit the annexation of Keewatin had no effect on the TreatyRights of the Treaty 3 Ojibway in Keewatin. This Court must decide whether Ontario is correctin submitting that Ojibway Treaty 3 Harvesting Rights were affected upon the annexation ofKeewatin to Ontario. In other words, were the Ojibway's rights under the Treaty adverselyimpacted by the 1891 legislation, which had been passed to deal with problems arising from theBoundary Dispute, even though the Keewatin Lands had not been the subject of that Dispute?Question Two[26] Even if the Treaty or the 1891 Legislation did/does not allow Ontario to limit orextinguish Ojibway Harvesting Rights by authorizing land uses within Ontario, can Ontarionevertheless pass laws that infringe Treaty Harvesting Rights if they can be justified under theSparrow test?2011 ONSC 4801 (CanLII)Evidentiary Matters[27] It should go without saying that the fact-finding process here was atypical. As Treaty 3was made in 1873, obviously neither the Commissioners nor the Chiefs were alive to providefirsthand evidence about their intentions and understanding of the Treaty Harvesting Clause in1873.[28] In cases such as this, the higher Courts have directed trial judges to strive to ascertain theunderstanding not only of the Euro-Canadian parties, but also of the Aboriginal parties. Theymust look beyond the formal wording of the treaties and delve into the circumstances and thecontext in which each particular treaty was made.[29] With the exception of the evidence of Mr. Fobister, a named Plaintiff, the oral evidencehere consisted entirely of expert evidence. The experts will be referred to by their surnamesthroughout these Reasons.[30] The parties agreed that the voluminous reports of the experts would be entered intoevidence and treated as if they had been given viva voce. As a result, their oral evidenceconsisted largely of cross-examination.[31] This Court heard much ethno-historical and anthropological evidence, adduced primarilyto assist in interpreting the historical documents and in gleaning the understanding and intentionsof the parties, particularly the Aboriginal parties. It also heard historical and political expertevidence, primarily relevant to the intentions and understanding of the Euro-Canadian TreatyCommissioners at the time the Treaty was negotiated. The evidence included theories,expositions and opinions on the reasons for the formation of Canada, the s. 91(24) placementunder federal jurisdiction of "Indians and Lands Reserved for the Indians" and of theConstitutionality of a treaty provision specifying that Canada would "take up" land or authorize