Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 150[736] I accept Milloy's evidence, relating to the provenance of s. 91(24) and the history ofImperial Indian policy as applied in Canada, and the evidence of Vipond and Saywell that theTreaty Commissioners were aware they were working within a tradition of protection and"guardianship" of Indians.[737] It is clear from Nova Brittania and given his education and background, that Morris wasaware of the model of Imperial administration and of Canada's Constitutional role, powers andobligations.[738] Morris' first-hand experience and knowledge of the historical, political, legal andConstitutional background canvassed in these Reasons, including the thinking behind theplacement of s. 91(24 ) under federal jurisdiction, the specific limitation in s. 109, the interactionbetween federal and provincial powers, the promises made to British Columbia and GreatBritain, the history of Imperial policy and dealings with the Indians, and the implications of theongoing Boundary Dispute are relevant to gleaning his understanding and intent in drafting theTreaty and in determining the promises made in 1873.2011 ONSC 4801 (CanLII)[739] As a "trained Constitutional lawyer" and a keen student of Imperial and Canadian history,Morris was clearly aware that Canada's s. 91(24) jurisdiction covered Canada's ability to maketreaties and extinguish rights recognized under treaties. (Morris and the other Commissionerswere taking their direction principally from the federal Department of Indian Affairs.) I find hewas aware of the historic Imperial method of dealing with North American Indians; he wasaware of the Imperial model dating back at least to the Proclamation of 1763 and its goal ofprotecting the Indians against interference from local settlers by reserving to them the use oftheir hunting grounds and administering Indian affairs centrally.[740] Morris was aware that Canada had undertaken the protection of the Indian inhabitants ofthe HBC Territories as a condition of their transfer to Canada.[741] Chartrand agreed in cross-examination on January 22, 2010 at pp. 83-85 that Morrisbelieved that the federal government had inherited the operational aspects of obligation and dutypreviously exercised by the Imperial government:Q. … Morris knows that in the contemporary 1873 context, it is, in fact, the federal government that'sthe inheritor of the operational aspects of that package of Crown obligation and duty?A. He knows, assumes, believes, whatever. You know, again –Q. That's the framework he's working in?A. … yeah, it's the basic understanding that he has.[742] In 1873, I find Canada recognized its obligation to protect the Indians, its wards, avulnerable minority - against exploitation by the majority.[743] I find that Morris appreciated that one of the reasons the Fathers of Confederation placedIndians and Lands reserved for the Indians under federal jurisdiction was to protect Indians, avulnerable minority/the pupils or wards of the Dominion, from exploitation by the majority. Heappreciated that to protect Canada's strategic interests, it was necessary to protect the Indiansfrom local governments that might engage in activities that could antagonize the Indians.