Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 121[572] Counsel for the Plaintiffs submitted that when Morris specified in the Harvesting Clausethat only Canada could "take up" lands, he intended "taking up by Canada" in the HarvestingClause to have roughly the same meaning the Supreme Court of Canada has now given it. Landwould be considered "taken up by Canada," not simply when occupied or used per se, but whenCanada authorized it to be put to a use visibly incompatible with Harvesting Rights.[573] Put differently, Morris intended to make it clear that under s. 91(24) and the Treaty,Canada, the guardian of Indians, would manage the process to be followed in limiting TreatyHarvesting Rights so it could ensure they would be respected.[574] If Canada won the Boundary Dispute, it already had in place an Indian ManagementBoard that included highly placed representatives from Crown Lands and Indian Affairs whomhe expected would consult, cooperate, coordinate and manage any conflicts between Euro-Canadians and the Indians in the Indians' and the federal interest. If Ontario won the BoundaryDispute, Morris had stipulated the process that must be applied before otherwise unlimitedHarvesting Rights could be removed. He had made it clear in the Treaty that Canada wasretaining the s. 91(24) jurisdiction necessary to manage and protect Harvesting Rights if itbecame necessary to do so.2011 ONSC 4801 (CanLII)[575] When he drafted Treaty 3, Morris had in his file a document [Ex. 31], likely prepared in1871 before the negotiation of Treaty 1. Chartrand's cross-examination on January 21, 2010contains the following at p. 22:Q. Now, if we look at the sentence above the one we've just been talking about, we see the words, inthe left-hand column:"Treaty cannot be changed."And then next to that, we see the words:"No provincial legislature will have the right to change that treaty."A. Yes.[Emphasis added.][576] Counsel for the Plaintiffs submitted that the presence of that document in his file isindicative that Morris did consider ways to ensure that local governments/provinces would notbe able to interfere with Treaty Rights.[577] Counsel for the Plaintiffs submitted that Ex. 32, the draft Treaty prepared in 1873, alsosupports the conclusion that Morris specifically turned his mind to the wording and decided that"taking up by the government of the Dominion or by subjects authorized by the saidgovernment" language and should be included. Although he made other changes, he left intactthe reference to the Dominion of Canada in the Harvesting Clause.Evidence Relevant to the Interpretation of the Understanding of the Parties in 1873with regard to the Identity of the Treaty Parties[578] A finding by this Court that the Ojibway understood they were dealing with the Queen ora generic Queen's government, not the Government of Canada, is key to Ontario's argument thatas an emanation of the Crown, it can access the Harvesting Clause in the Treaty and limit TreatyHarvesting Rights without authorization from Canada.