Keewatin v. Minister of Natural Resources

Part 11. Post-Treaty Events 205I think, nevertheless, that the words will bear a construction broad enough to justify astipulation for the protection of minorities …At p. 126:Q. But what I'm going to suggest to you … there is a history of the division of powers between thefederal government and the provincial government as being informed, at least in part, by an interest inprotecting local minorities?A. Yes.At pp 127-128:Q. …we can use these two documents [Exhibits 127 and 128] to get a sense of what was concerningBorden …about the ability to impose conditions on the extension of a provincial boundary …and …by looking at Newcombe's response, we can also get a sense of what Borden and Newcombe wouldhave understood … about that power…?A. Yes.Q. And to the extent that this is immediately proximate to a statute imposing terms and conditions onan extension of a boundary, it does give us a sense of what kinds of purposes and intentions Borden,Newcombe and the others in government may have intended?A. I think that's fair.2011 ONSC 4801 (CanLII)At p. 129:Q. … Newcombe is suggesting that, in fact, the federal government can hold back part of its powerswhen it's making a transfer … to a provincial government -- by means of the imposition of terms andconditions?A. Yes.At pp. 130-131:Q. Now going on to the second question:"Has Parliament in any such Act enlarging the boundaries of a Province…[the power] tomodify the division of powers?""In my opinion Parliament cannot on such an occasion divest itself of any of its distinctivepowers, or assume any of those of the legislature, although reasonable limitations may, asterms or conditions of union, be imposed upon the execution of provincial powers, andpossibly special powers may be reserved to the Dominion."That's Newcombe's answer to the division of powers question, correct?A. Yes.Q. And this is consistent … with the view that even after the extension lands are added, those thingsthat are in federal jurisdiction generally -- let's take fisheries, for example -- remain in federaljurisdiction, correct?A. Yes. …Q. …Indian Affairs was a federal jurisdiction before the extension and is a federal jurisdiction afterthe extension? …A. Fair enough.[1063] Saywell's report, Ex. 137-2 contains the following at p. 56: "During seven years of primeministerial discussions and diplomacy there had been no discussion, or even mention, of theIndians in Keewatin." He gave evidence on April 7, 2009 that in his research of the historicaldocuments generated early in the consideration process of the 1912 annexation, he found nomention of Treaty 3, at pp. 185-188:Q. [Y]ou don't find anywhere in the debates in Parliament … Laurier or Borden expressing the viewthat the Treaty 3 rights were going to be changed in any way?