Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 119A. Correct.[Emphasis added.][563] He conceded that as of June 16, 1873, the Privy Council was approving separateinstructions for the negotiation of Treaty 3, different from the negotiation of future treaties in theNorthwest Territories.[564] In cross-examination, Chartrand agreed (January 22, 2010 at pp. 56-57) that Canada didnot view itself as having jurisdiction to negotiate treaties only in the Northwest Territories. It hadjurisdiction to do so in all of Canada, including Ontario:Q. You are not trying to suggest that Canada lost jurisdiction with respect to Indian Affairs in thelands subject to the Dispute?A. No.…Q. Well, you're not suggesting that Canada took the view after the Boundary Dispute that it nolonger had responsibility for dealing with matters related to Aboriginal harvesting off-reserve afterthe Treaty, are you? Just because of the Boundary Dispute?A. If we're limiting ourselves to the final determination in 1884, then the answer is no.[Emphasis added.][565] Chartrand also agreed that the view of the federal government in 1873 was that it couldenter into treaties because of its jurisdiction over Indians and lands reserved for the Indians. TheCommissioners (particularly given that they were answerable to the Superintendent of IndianAffairs, in respect of the federal government's duties vis-à-vis Indians) understood that theDominion Government would have the obligation after the Treaty was signed to enforce theTreaty. References to the Dominion Government could have related to the Commissioners'understanding that they were representing the Dominion Government in respect of Indians andlands reserved for the Indians.2011 ONSC 4801 (CanLII)[566] Counsel for the Plaintiffs submitted there are more complicated reasons for the mentionof the Dominion in the Harvesting Clause than a simple assumption of ownership. Morris wasnot simply referring to Canada's ownership rights but also to its s. 91(24) obligations. Morris'knowledge of the Boundary Dispute and its implications affected his drafting of the HarvestingClause. Morris knew the ownership of the lands was in dispute and sought wording that wouldcover both eventualities: that Canada would be found to own the Northwest Territories or thatOntario would be. He submitted that Morris deliberately referred to the Dominion in theHarvesting Clause bearing the Boundary Dispute in mind. It was no mistake. When hementioned "Canada" could limit Treaty Harvesting Rights by "taking up" or authorizing "takingup," Morris evidenced that he intended that only Canada could limit Treaty Harvesting Rights.Morris, a trained Constitutional lawyer and ex-judge, understood what he was doing inmentioning Canada. He was aware of the historical antecedents to s. 91(24), including themanagement of Aboriginal matters from the top before 1867 by the Imperial Government andafter 1867 by the Canadian government. He was cognizant of the reasons why s. 91(24)jurisdiction had been vested in the federal government, its obligations to Indians and theConstitutional relationship between federal powers and obligations and provincial powers andobligations. At the time the Treaty was being negotiated, he was aware that the four originalprovinces had agreed less than a decade earlier that their s. 109 powers would be "subject to any