Keewatin v. Minister of Natural Resources

Part 11. Post-Treaty Events 204to limit or extinguish Harvesting Rights under s.1, which provided that the rights of hunting andfishing by the Indians did not continue in respect of lands taken up by Ontario.[1058] Counsel for the Plaintiffs submitted that the Defendants have not demonstrated and thereis no good reason to conclude that in 1912 the Dominion had a clear and plain intent toextinguish previously unaffected Treaty Harvesting rights in Keewatin. The 1891 Legislation didnot apply in Keewatin. There is no good reason to imply that Parliament intended to extinguishany aspect of Treaty Rights conferred under Treaty 3. Rather, there is good reason to conclude,based on the evidence and the wording of the 1912 Legislation, that Canada intended to preserveTreaty Rights.[1059] The 1912 annexation of Keewatin resulted after Manitoba proposed to extend itsboundaries, and Ontario then sought to do likewise and to secure a port on Hudson's Bay.(Saywell, April 7, 2009; Ex. 1, Vol. 7, tabs 108 and 111.)2011 ONSC 4801 (CanLII)[1060] Vipond's report (Ex. 123) describes the circumstances at pp. 19-21:In contrast to the twenty-year, all-out struggle over Ontario's western boundary, the re-definition andextensionof Ontario's northern boundary in 1912 seems like a sort of geographic codicil, much lesscontentious in nature and much swifter in resolution. Actually, the northern extension was a classiccase of "federalism dominoes." When the Laurier government created the provinces of Alberta andSaskatchewan, it chose to make the 60 th parallel the northern boundary. …The government ofManitoba… lost no time in asserting its claim to a northern extension of Manitoba that would matchthe northern exposure of Alberta and Saskatchewan. Manitoba was especially keen to have access toHudson's Bay… Not to be outdone, Ontario then petitioned the federal government to have itsnorthern boundaries extended to include the Keewatin Lands… Under the circumstances, Lauriercould hardly extend Manitoba's boundary without doing the same for Ontario … Thus, in 1908, thefederal government announced that it would introduce boundary legislation … to Parliament, butnegotiations … became so rancorous that the deal fell apart. With the election of the Bordengovernment in 1911, both the personal and partisan complexion of the federal government changed,and in February 1912 the federal government introduced legislation into Parliament extending thenorthern boundaries of Manitoba, Ontario …[1061] Saywell's report (Ex 137-2) sets out the agreement between Ontario and Canada reachedin February 1912, at pp. 55-56:Ontario would not get its port, but would get access to one or more ports on the Bay. Ontario receiveda strip of land five miles wide from the boundary of … Manitoba to the Nelson River… Theprovince would also receive a further strip along the Nelson to its mouth and such foreshore as mightbe necessary for port facilities. Moreover, if the terminus of the proposed Hudson Bay Railway wasat Port Churchill, and if Ontario wished to use it as its terminal as well they would be given a right ofway.[1062] On February 5, 1912, just before agreement was reached, Prime Minister Bordenrequested his Deputy Minister of Justice Newcombe to answer questions about possibleimplications of the annexation of Keewatin to Ontario (Ex. 127.) Newcombe responded toBorden's questions on February 12, 1912 (Ex. 128.) Vipond was referred in evidence toNewcombe's opinion and then cross-examined on February 25, 2010 on it, as follows:At p. 124:Q. [reading from Newcombe's opinion]