Keewatin v. Minister of Natural Resources

Part 12. Findings of Fact Part II 236[1246] I reject Ontario's submission that evidence regarding the lack of complaints regardingdevelopment within the Disputed Territory is useful in shedding light on their understanding ofthe Treaty in 1873.[1247] In short, I conclude that the lack of Ojibway complaints in the Disputed Territory after1891 is not probative of any of the contentions Ontario is urging upon this Court.13. ANSWER TO QUESTION ONEQuestion OneDoes Her Majesty the Queen in Right of Ontario have the authority within that part of the landssubject to Treaty 3 that were added to Ontario in 1912, to exercise the right to "take up" tracts of landfor forestry, within the meaning of Treaty 3, so as to limit the rights of the Plaintiffs to hunt or fish asprovided for in Treaty 3?Emphasis added.][1248] I have answered Question One in seven steps:Step 1: The Principles of Treaty Interpretation2011 ONSC 4801 (CanLII)Step 2: Application of the Principles of Treaty Interpretation to the Harvesting Clause(a) Wording of the Harvesting Clause(i) The Importance of the Written Word to the Ojibway and Canada(ii) The Literal Meaning of the Harvesting Clause(b) What were the mutual intentions of the parties as to the meaning of the HarvestingClause as of 1873 that best reconcile the interests of the parties at the time theTreaty was signed?Step 3: Is an interpretation based on my finding of mutual intention Constitutional?Step 4: Bearing in mind the answers to Steps (1) (2) and (3) above, as of 1873, what isthe answer to Question One?Step 5: The Effect of the 1891/1894 Legislation/Agreement(a) Did the 1891/1894 Reciprocal Legislation/Agreement declare Ontario's existingrights or did it give Ontario additional rights that it did not have under the Treaty?(b) Did it apply to Keewatin after 1912 [and confer the same rights on Ontario inrespect of Keewatin as it had with respect to the Disputed Territory before 1912]?Step 6: The Devolution Argument.Step 7: In light of all of the above, what is the answer to Question One?