Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 167[850] I find Morris did intend that Canada, in the event it lost the Boundary Dispute, would beable to exercise its ongoing jurisdiction over Indians and Treaty Harvesting Rights even withinOntario. Morris understood there would be intersecting jurisdictions. He knew if Ontario ownedthe land, two levels of government would be involved if Ontario were purporting to significantlyinterfere with Treaty Harvesting Rights. In protecting those Rights, he understood he wasexercising Canada's valid s. 91(24) jurisdiction. Canada's ability to affect provincial proprietaryrights when exercising a valid federal jurisdiction was accepted in 1873 by all the politicalplayers, even the provincial autonomists. Chancellor Boyd's reasoning in Seybold illustrates thatinvolvement of more than one government in authorizing land use is not a new concept.[851] I have found that Morris expressly reserved Harvesting Rights to the Ojibway under theTreaty, an interest he understood to be a pre-existing interest under s. 109.[852] I find that, given his knowledge of the Constitution, Morris was intending to specify thatif Canada lost the Boundary Dispute, Ontario's s. 109 interest would be burdened by and subjectto the pre-existing Harvesting Rights reserved to the Treaty 3 Ojibway guaranteed under theTreaty. In reserving Treaty Harvesting Rights to the Ojibway, Morris understood that Courtswould interpret the Harvesting Clause to mean that Ontario was taking its s. 109 rights subject toTreaty Harvesting Rights.2011 ONSC 4801 (CanLII)[853] Morris' and Canada's understanding and intent regarding his use of Constitutional andlegal concepts is covered in more detail in the section of these Reasons headed "Answer toQuestion One – Is the Harvesting Clause as Written Constitutional?"Did the Ojibway Understand and Accept that Canada Could Interfere with Their TreatyHarvesting Rights?[854] The issue here is whether McKay, when he explained the Treaty in Ojibwe, as reportedby Morris in his October 14, 1873 report, mentioned or the Ojibway understood from otherinformation provided, that the Dominion Government could limit Harvesting Rights.[855] I have referred earlier to McKay's background and experience and important "culturalintermediary" role, both before and during the 1873 negotiations.[856] In his October 14 report Morris wrote, "After a reading of the Treaty, and an explanationof it in Indian by the Hon. James McKay, it was signed."[857] The evidence is unclear as to how McKay read and explained the Treaty in Ojibwe justbefore it was signed. No notes prepared by McKay or anyone else are extant to shed light onwhether he read the Treaty in English or how he explained it in Ojibwe. It is impossible to knowwith certainty whether he attempted to translate verbatim the words of the formal Treaty.[858] Counsel for Ontario submitted that it would have been impossible for McKay toaccurately interpret the Treaty word-for-word. He submitted that McKay did not translate orexplain the harvesting promise in its entirety. His explanation of the harvesting promise waslikely similar to Morris' statement on October 1. If McKay did refer to the harvesting promise, he