Keewatin v. Minister of Natural Resources

Part 11. Post-Treaty Events 195discussed … those concerning Indian Reserves and treaties were cast in the language and form of adraft agreement:3. Future Treaties with Indians for surrendering their rights to require the concurrence of theProvince in which the lands lie by a Joint Commission. Mr. Mowat proposes that an Order inCouncil to that effect be passed by the Dominion and confirmed by [an] Act of Parliament….(1) The Ontario Government shall be a party to the selection of Reserves hereafter.(2) The Reserves are to be confirmed and established according as the Treaty stipulates.(3) A Joint Commission for the two Governments (Canada and Ontario) to be appointed to settleand determine any questions outstanding as to the Reserves, according to the rule stated inparagraph (2)…Chartrand prefaced Item 4 with the comment, "The participants also agreed that responsibilityfor fishery regulations in the Treaty 3 territory (excluding waters forming parts of IndianReserves) would be transferred from the Dominion to the Ontario government:"2011 ONSC 4801 (CanLII)4. An Order in Council to be passed by the Dominion Government providing that the Regulations asto fishing in the territory covered by the Morris Treaty as thereby provided, other than on theReserves for Indians, shall be made by the Government of Ontario as respects the lands of theProvince, without prejudice to the jurisdiction of the Dominion Parliament with respect to Fisheriesunder the B.N.A act.5. The Fisheries Question/ A case to be settled for the Courts, Mr. Mowat is to have [a] draft made tobe submitted for consideration. This requires [the] concurrence of Quebec.[1013] The St. Catherine's decision had either highlighted or created a problem. AlthoughCanada had exclusive jurisdiction to negotiate treaties, including making promises to createreserves, unless reserves were excepted at the time of the surrender in the metes and boundsdescription of the lands being ceded, the province that owned the land could object to thecreation of reserves by the federal government on the basis that those reserves were beingcreated on provincially owned land.[1014] Although at the time the Treaty was signed, the Ojibway had chosen the lands theywanted for reserves, these were not excepted from the lands included in the metes and boundsdescription in the Treaty. [Reserves chosen in advance had been excepted from the landsincluded in the Robinson Treaties.] After St. Catherine's Milling was decided, Ontario took theposition that it had absolute ownership of all the Treaty 3 lands, i.e., they had not consented tothe use of its lands for the creation of the reserves. Ontario took the position that the federalreserve allocation that had already occurred years earlier was invalid, since Ontario had notexpressly consented to it.[1015] As mentioned earlier, reserves including gardens and sturgeon fisheries had been a keyconsideration in the making of Treaty 3. During the 1873 negotiations, Canada had specificallypromised to protect existing Ojibway gardening and sturgeon fish areas along the Dawson Routeby including them in reserves to be set aside for their own exclusive use. Canada had effectively