Keewatin v. Minister of Natural Resources

Part 11. Post-Treaty Events 193The St. Catherine's Milling Case[999] The St. Catherine's Milling case was heard between the spring of 1885 and late 1888 byeleven judges in three Canadian courts and the JCPC in England.[1000] Chartrand set out some background in his report (Ex. 60) at p. 345:St. Catherine's Milling was a direct outcome of the Ontario-Dominion boundary dispute, assubsequently transformed into a jurisdictional dispute. The Ontario boundary location question hadevolved between 1869 and 1884, and had been settled by the JCPC, without reference to the matter ofIndian title or to Treaty 3:The Boundary Dispute was not begun as an assault on Aboriginal rights; rather, these rightswere dragged into the protracted fray …[References omitted.][1001] Saywell gave evidence (April 6, 2009 at p. 100) that even as the St. Catherine's case wasbeing heard, the judges involved recognized that the language of Treaty 3, i.e. reference to"taking up" by Canada, could raise further issues were Ontario to be held to be the owner of theland.2011 ONSC 4801 (CanLII)[1002] The JCPC's decision in St. Catharine's Milling, affirming Ontario's beneficial ownershipof the Disputed Territory, was released on December 12, 1888.Negative Fallout Affecting the Treaty 3 Ojibway after the Release of the St. Catherine'sMilling Decision/ Negative Repercussions of the Boundary Dispute on Treaty 3 Ojibway[1003] 1889. On January 17, 1889, a few weeks after the St. Catharine's Milling decision wasreleased, Ontario Premier Mowat wrote to Dewdney, the federal Minister of the Interiorresponsible for Indian Affairs (Ex. 1, Vol. 12, tab 565), proposing that in the Disputed Territory,the Harvesting Clause in Treaty 3 be interpreted in the manner Ontario is now urging upon thisCourt:By the North West Angle Treaty No. 3 (3 rd October '73) it was provided that the Indians would havethe right of hunting and fishing throughout the surrendered territory subject to regulations by theDominion Government except as to tracts required or taken up for settlement, mining, lumbering orother purposes. The meaning of course was that such matters should be determined by the authority,whatever it was, from which grants for settlement, &c., should come; and as this has now beendecided to be the Province, the Province becomes the rightful authority to make grants, &c, free fromthe Indian right of hunting and fishing.[Emphasis added.][1004] I note that Mowat, in mentioning the wording of the Harvesting Clause in the Treaty,omitted to include the key words in respect of "taking up," namely "by the DominionGovernment."[1005] The experts disagreed as to Mowat's understanding of Ontario's legal position re "takingup" under the Treaty, although they agreed that Ontario and Canada agreed to negotiate re treatyallocation and "taking up" by Ontario.