Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 237Step 1: The Law: Principles of Treaty Interpretation[1249] Treaties define Aboriginal rights guaranteed by s. 35 of the Constitution Act. Section 35represents a "solemn commitment to recognizing and affirming Aboriginal rights." (Sparrow atpage 1108.)[1250] "Limiting reconciliation risks unfortunate consequences and is not honourable" (HaidaNation at para 33.)[1251] "Difficulties associated with … definition of claims are to be addressed by assigningappropriate content to the duty, not by denying the existence of the duty." (Haida Nation at para.37.)[1252] Treaties "may appear to be no more than contracts. Yet they are far more. They are asolemn exchange of promises made by the Crown and various First Nations. They often formedthe basis for peace and the expansion of European settlement" (Sundown at para 24.)2011 ONSC 4801 (CanLII)[1253] The Crown was and is required to uphold the highest standards of conduct in thenegotiation, interpretation and implementation of ancient treaties. They should not be interpretedas if they were commercial contracts negotiated at arm's length by parties with equal bargainingpower. (Marshall at para 45.)[1254] In Secession of Quebec, the Supreme Court of Canada, for the Court wrote:Consistent with this long tradition of respect for minorities, which is at least as old as Canada itself,the framers of the Constitution Act, 1982 included in s. 35 explicit protection for existing Aboriginaland treaty rights, and in s. 25, a non-derogation clause in favour of the rights of Aboriginal peoples.The "promise" of s. 35, as it was termed in Sparrow at p. 1083, recognized not only the ancientoccupation of land by Aboriginal peoples, but their contribution to the building of Canada, and thespecial commitments made to them by successive governments. The protection of these rights, sorecently and arduously achieved, whether looked at in their own right or as part of the larger concernwith minorities, reflects an important underlying constitutional value. [Emphasis added.][1255] It is always assumed the Crown intends to fulfill its promises. Writing for the Court inHaida Nation, McLachlin C.J.C. wrote at paragraphs 19 and 20:[19] … In making and applying treaties, the Crown must act with honour and integrity.[20] …It is always assumed that the Crown intends to fulfill its promises" (Badger, supra, at para.41). This promise is realized and sovereignty claims reconciled through the process of honourablenegotiation. It is a corollary of s. 35 that the Crown act honourably in defining the rights it guaranteesand in reconciling them with other rights and interests.[1256] In Marshall, the Supreme Court of Canada held that the holder of rights to participate in aparticular activity may enjoy special treaty protection against interference with its exercise, evenwhere the activity may also be enjoyed by others… (Paragraphs 45 and 47.)[1257] "The very nature of … treaties … commands a generous interpretation and uncertainties,ambiguities or doubts should be resolved in favour of the natives." (Van der Peet at para. 143.)