Keewatin v. Minister of Natural Resources

Part 3. Overview 10"Yes" answer would give effect to the Ojibway understanding alleged by Ontario that they weredealing, not with Canada, but with the Queen. Even if this Court finds Ontario could not "takeup" lands in 1873, upon annexation of the Keewatin Lands to Ontario in 1912, it has been able to"take up" lands under the Treaty in all of Ontario. The 1891 Legislation extinguishing TreatyHarvesting Rights on lands "taken up" by Ontario applied in Keewatin.[67] Counsel for the Plaintiffs submitted that in 1873 the mutual understanding and intentionof the parties was that (away from the Dawson Route and CPR right of way), Canada would notallow the Euro-Canadians to significantly interfere with Ojibway Harvesting Rights, at least notwithout actively considering whether such interference should be allowed and giving federalauthorization to allow it under the Treaty and s. 91(24). While the Treaty Commissionersunderstood that if Canada lost the Boundary Dispute, Ontario would be able, under s. 109, tounilaterally authorize development of lands within Ontario, they also anticipated and deliberatelyprovided that if such development would significantly interfere with Harvesting Rights, Canadawould be able to require the user of land to obtain authorization from Canada for that use beforeit could proceed with such development.2011 ONSC 4801 (CanLII)[68] Counsel for the Plaintiffs submitted that Ojibway Treaty Harvesting Rights in Keewatinare unaffected by the 1891 and 1912 Legislation. Canada did not intend the adverse effects of theBoundary Dispute imposed on the Treaty 3 Ojibway in the Disputed Territory to be applied toKeewatin, an area unaffected by the Boundary Dispute.Question TwoIf the answer to Question One is "No" and Ontario cannot access the taking upclause in the Treaty, does Ontario nevertheless have authority under theConstitution to significantly infringe Treaty Harvesting Rights by meeting thecriteria for infringement set out in Sparrow?[69] Counsel for Ontario submitted that if it can meet the Sparrow test, Ontario can justifiablyinfringe Treaty Harvesting Rights. The doctrine of inter-jurisdictional immunity does not applyin the circumstances here.[70] Citing the combined effect of the doctrine of inter-jurisdictional immunity and of s. 88 ofthe Indian Act, counsel for the Plaintiffs submitted that only Canada can justifiably infringeTreaty Rights if it can satisfy the Sparrow test; Ontario cannot.[71] At this stage in the litigation, this Court is not being asked to determine whether Ontariohas breached the Treaty. If the answer to Question 2 is Yes, Ontario will still have to meet theSparrow test. If the answer to Question 2 is No, at the next stage it will still be necessary todetermine whether Ontario's proposed activities constitute prima facie infringement of TreatyHarvesting Rights.