Keewatin v. Minister of Natural Resources

Part 11. Post-Treaty Events 208that it would have to negotiate a treaty with the Indians in the unceded territories, which had tobe approved by the Federal Governor-General in Council. Ontario understood and agreed itcould not patent or license unsurrendered lands in the territory annexed in 1912 until those landshad been surrendered. Had the Government of Canada refused to give its approval, then Ontariowould not have been able to sell or lease the land. Ontario agreed to pay the costs of futuretreaty-making.[1078] The first and only document Saywell found that did refer to Treaty 3 was a memorandumto Pedley, Deputy Superintendent General of Indian Affairs dated March 11, 1912 (Ex. 1, tab783), mentioning Canada's requirement that Ontario confirm Treaty 9 reserves and pay Treaty 9annuities. (Saywell, April 7, 2009.)[1079] Vipond referred to the same memo and opined that by March 11, 1912, the Departmentof Indian Affairs was aware of the fact that some of the land to be annexed to Ontario was Treaty3 land. (February 25, 2010 at p. 96.)2011 ONSC 4801 (CanLII)[1080] The Ontario Boundary Extension Act, 1912 included what counsel for the Plaintiffssubmitted were the following terms and conditions imposed by Canada:2(a) That the province of Ontario will recognize the rights of the Indian inhabitants in the territoryabove described to the same extent, and will obtain surrenders of such rights in the same manner, asthe Government of Canada has heretofore recognized such rights and had obtained surrender thereof,and the said province shall bear and satisfy all charges and expenditure in connection with or arisingout of such surrenders;(b) That no such surrender shall be made or obtained except with the approval of the Governor inCouncil; and(c) That the trusteeship of the Indians and the said territory, and the management of any lands now orhereafter reserved for their use, shall remain in the Government of Canada subject to the control ofParliament.[1081] Vipond opined that nothing in paragraphs 2(b) or 2(c) of the 1912 Legislation limitedIndian title.[1082] Saywell gave evidence on April 7, 2009 from a historical perspective that the framers ofthe Boundary Extension Act, 1912 did not intend to amend/abrogate Treaty 3 rights. Its wordsreflect Canada's recognition that it was a trustee of the Indians and that it had a continuingresponsibility to them:Q. …I'm showing you … the three clauses that you've cited (a), (b) and (c) appear at the end of 2,correct? … Now, I want to understand what you're saying in terms of your opinion of what section (a)means. There is no doubt that there the reference to surrenders of rights and the costs of suchsurrenders is a reference to the unceded lands; is that correct?A. I understand, yes.Q. So, the Province of Ontario recognizing the rights of the Indians, do you say that that doesn'tinclude the Treaty 3 rights or does it include any rights of the Indians in your understanding?A. My understanding is that it makes no specific reference to the rights in the Treaty 3 area that willbe added to Ontario… There is neither a reference including or excluding.Q. And in paragraph (c) there is this phrase "the trusteeship of the Indians in the territory shallremain in the Government of Canada subject to control of parliament." I take it that that's an