Keewatin v. Minister of Natural Resources

Part 3. Overview 9under the Treaty. Put differently, Ontario contended that it could authorize uses of lands withinthe Disputed Territory and by so doing, extinguish Ojibway Treaty Harvesting Rights on thoselands. It asserted that it could progressively extinguish Treaty Harvesting Rights/ diminish thegeographical area available for traditional harvesting by authorizing land uses incompatible withHarvesting Rights and without regard to them.[60] Negotiations from 1889 to 1891 between Canada and Ontario culminated in reciprocallegislation, the 1891 Legislation ratified by the Agreement in 1894 (the "1891 Legislation"),which in effect provided that Ontario could remove Ojibway Harvesting Rights from any landswithin the Disputed Territory that it had "taken up" in the past or would "take up" in the future,even if the uses so authorized would significantly interfere with Ojibway Harvesting Rights.Under the 1891 Legislation, Canada has/had no continuing role in authorizing the use of landswithin the Disputed Territory.[61] In other words, Canada passed legislation that the Plaintiffs submit amended the 1873Treaty to allow "taking up" by Ontario within the Disputed Territory without any authorizationby Canada.2011 ONSC 4801 (CanLII)[62] It must be emphasized at the outset that the lands in issue in this litigation are not in theDisputed Territory but in Keewatin, which at the time was unaffected by the 1891 Legislation. Ifthe 1912 annexation did not affect it, the 1873 Treaty Harvesting Rights continue in respect ofKeewatin to this day.[63] When Keewatin was annexed to Ontario in 1912, Canada and Ontario did not passlegislation expressly allowing Ontario to "take up" lands in Keewatin without authorization fromCanada. Ontario submitted the 1891 Legislation applied to Keewatin after 1912. The Plaintiffssubmitted it did not.[64] Canada submitted that federal legislation, passed in 1912 in respect of Indians whenKeewatin was annexed to Ontario, had the effect of devolving all of Canada's s. 91(24) dutiesand responsibilities to Ontario.[65] From a legal perspective I see my task as follows:Question One(a) To apply the principles of Treaty interpretation mandated by the higher courts;(b) To consider the arguments of Ontario that the Plaintiffs' submissions do not squarewith Constitutional reality and should be rejected for that reason; and(c) To consider the effect of the annexation of Keewatin to Ontario in 1912.[66] Counsel for Ontario submitted that the answer to Question One should be Yes. UnderTreaty 3 Ontario can unilaterally limit the Ojibway hunting rights by "taking up" lands inOntario. A "Yes" answer to Question One would give effect to the mutual intention of the partiesalleged by Ontario, including an Ojibway understanding and agreement that as time passed anddevelopment was authorized, their Harvesting Rights would be incrementally diminished. A