Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 120Interest other than that of the province[s] in the same." He understood that Treaty HarvestingRights were an "interest other than that of the province in the same." He was aware that a loss ofthe ongoing Boundary Dispute between Canada and Ontario could have negative implications forCanada's wards, the Ojibway, especially if their Treaty Harvesting Rights were not expresslyprotected by the wording of the Treaty.[567] Counsel for the Plaintiffs submitted that in 1873, although the Commissioners anticipatedcompatibility between Aboriginal harvesting and anticipated development, Morris knew ifCanada won the Boundary Dispute, it would authorize all land uses in the Treaty 3 area. In theevent proposed land uses threatened to interfere with Treaty Harvesting Rights, he expectedfederal departments to work together to ensure that Canada's security interests would not beundermined because unhappy Indians perceived that Treaty promises were not being kept. Heexpected Canada to protect the Indians and in turn to protect its own interests. He contemplatedconsultation and cooperation among government departments. The Commissioners did notexpect management of Harvesting Rights to be onerous by reason of the expected compatibilitybetween anticipated Euro-Canadian development and Ojibway harvesting.2011 ONSC 4801 (CanLII)[568] On the other hand, if Canada lost the Boundary Dispute, while he understood that Ontariocould not turn "swamp and muskeg" into fertile agricultural lands, he also understood that heneeded to draft the Treaty in such a way as to protect Ojibway Harvesting Rights and preventthem from being compromised.The Meaning of "Taking Up"[569] When drafting the Harvesting Clause, Morris deliberately did not use proprietarylanguage or refer to the Dominion as owner.[570] Had Morris simply intended the beneficial owner of the land (whether it turned out to beCanada or Ontario) to have the right to unilaterally extinguish Treaty Harvesting Rights byselling or leasing its land, he could have used language similar to that contained in the precedentprovided to him, the 1850 Robinson Treaties, as follows:… to allow the said chiefs and their tribes the full and free privilege to hunt over the territory nowceded by them, and to fish in the waters thereof as they have heretofore been in the habit of doing,saving and excepting only such portions of the said territory as may from time to time be sold orleased to individuals, or companies of individuals, and occupied by them with the consent of theProvincial Government.Robinson Superior Treaty, Morris text, Ex. 9, App., p. 303[571] He chose not to use such language. He knew if Canada lost the Boundary Dispute itwould not be the owner but it would have s. 91(24) rights. He used new and different "taking up"wording to specify that Canada, the only level of government with jurisdiction to make treatiesand extinguish treaty rights, would have to authorize any transfer of lands that, to use thelanguage of the Supreme Court of Canada in Mikisew, moved lands from the inventory of landsprotected by Treaty Harvesting Rights to the inventory of lands not so protected.