Keewatin v. Minister of Natural Resources

Part 11. Post-Treaty Events 199acquiescing in the location and extent thereof unless some good reason presents itself for adifferent course.3. That in case the Government of Ontario after such enquiry is dissatisfied with the reserves orany of them already selected, or in case other reserves in the said territory are to be selected, ajoint commission or joint commissions shall be appointed by the Governments of Canada andOntario to settle and determine any question or all questions relating to such reserves or proposedreserves.4. That in case of all Indian reserves so to be confirmed or hereafter selected, the waters withinthe lands laid out or to be laid out as Indian reserves in the said territory, including the landcovered with water lying between the projecting headlands of any lake or sheets of water, notwholly surrounded by an Indian reserve or reserves, shall be deemed to form part of such reserve,including islands wholly within such headlands, and shall not be subject to the public commonright of fishery by others than Indians of the band to which the reserve belongs.5. That this agreement is made without prejudice to the jurisdiction of the Parliament of Canada,with respect to inland fisheries under the British North America Act, one thousand eight hundredand sixty-seven, in case the same shall be decided to apply to the said fisheries herein mentioned.2011 ONSC 4801 (CanLII)6. That any future treaties with the Indians in respect of territory in Ontario to which they havenot hitherto surrendered their claim aforesaid, shall be deemed to require the concurrence of theGovernment of Ontario.[Emphasis added.][1030] I note that the wording of the 1891 Legislation did not track Mowat's wording suggestedin his January 17, 1889 letter to Dewdney ("shall not and do not apply to lands which are orwhich shall be the subject of grants, licenses, sales or leases.") It referred to lands "taken up" byOntario.[1031] Edward Blake, during his preparations for Seybold in 1902, was quoted as saying "theProvince secured so much, and conceded so little, under [the 1891 Legislation.]" (Saywell report,p. 42.)[1032] Sir John A. Macdonald died in June 1891.[1033] 1892. In 1892, the Indian Department was reorganized. By then, the CPR had beencompleted. The Dawson Route was no longer being used. The importance of First Nations issuesin general and Treaty 3 issues in particular had dwindled.[1034] In 1892, Ontario began passing fisheries legislation affecting the Disputed Territory.Although s. 12 of the provincial Act for the Protection of Game and Fur-bearing Animalsstipulated that provincial game laws were not to apply to Indians killing game for theirimmediate use and were not to be "construed to affect any rights specially reserved to orconferred upon Indians by any treaty or regulation in that behalf made by the government of theDominion of Canada, with reference to hunting on their reserve or hunting grounds or in anyterritory specially set apart for the purpose, Ontario's game laws were not interpreted to exemptoff-reserve Indian hunting and fishing in Ontario. In other words, off-reserve Treaty HarvestingRights were not recognized by Ontario.