Keewatin v. Minister of Natural Resources

Part 12. Findings of Fact Part II 231[1206] In 1939, the Ontario Deputy Minister of Game and Fisheries, when discussing federalcomplaints that Ontario was violating the Treaty, was reported to have retorted that how theIndians were going to make a living was "our Department's baby," not his. The Indians were notgoing to live off the province's deer, fish, etc., and Canada should devise some other way ofmaking a living for them.[1207] Into the 1950s, Ontario denied any responsibility to respect Ojibway Harvesting Rights.Chartrand described Ontario's restriction of Ojibway fishing rights in favour of Euro-Canadiancommercial fishermen and its attempts to keep the Ojibway away from areas used by Euro-Canadian sports fishermen, and its raids of reserves to seize deer killed off-reserve.[1208] It appears from all of the evidence that Ontario's present position that it is obliged as aCrown entity to respect Treaty Rights has not been long held, but is newfound.Findings re the Meaning of the Harvesting Clause2011 ONSC 4801 (CanLII)Re Post-Treaty Conduct Shedding Light on Mutual Understanding of the Meaning of theHarvesting Clause[1209] Both Lovisek and Chartrand agreed that Canada responded to complaints about breachesof Treaty Harvesting Rights that arose both on- and off-reserve.[1210] I accept the evidence, including that of Chartrand quoted earlier, that officials in theDepartment of Indian Affairs [the federal government] did not view their mandate/role as beinglimited to on-reserve issues. They recognized their jurisdiction and duties to Indians under s.91(24) among other things by advocating for the protection of their Treaty 3 Harvesting Rights.[1211] Counsel for Ontario contended that after the Treaty was signed, federal Indian Affairstook no role in the patenting of off-reserve lands in Ontario after 1889 and in Keewatin after1912. He submitted during argument that after the Treaty was signed, Canada had no ongoing s.91(24) jurisdiction in the Disputed Territory.[1212] Chartrand conceded in cross-examination that when Canada received complaints abouthunting and fishing matters, hunting regulations, fishing regulations, overfishing, it did not say,"Not our problem, complain to Toronto."[1213] Chartrand conceded on January 25, 2010 at p. 14 that Canada had a s. 91(24) mandatewithin Ontario, even after Canada lost the Boundary Dispute.[1214] I reject Ontario's submission that the post-Treaty conduct of the Department of IndianAffairs is inconsistent with a perception that it had no mandate off-reserve.[1215] I find that Canada did intend to protect Treaty Harvesting Rights off-reserve. While it didnot expect to routinely involve itself in authorizations for the use of land, it did have the power,under the Treaty and s. 91(24) to involve itself in authorizing or refusing to authorize usesincompatible with Treaty Rights.