Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 240[1272] I have also accepted Von Gernet's evidence that from the perspective of the PrivyCouncil that ratified the Treaty in late October 1873, the formal written text of the Treaty,including the explicit reference to the Dominion Government, was the Treaty.[1273] Like the Treaty Commissioners, members of the Privy Council would have understoodthe reference to the "Government of the Dominion of Canada" in the Harvesting Clause to be tothe federal government. (Dominion Day was the name of the holiday commemorating theformation of Canada as a dominion on July 1, 1867. The holiday was not renamed "Canada Day"until October 27, 1982; at the time of the Treaty and for many years afterward, the term"Dominion" was widely known to refer to the whole of Canada.)[1274] Counsel for Ontario submitted, in effect, that since Morris did not explain about thedifferent emanations of the Queen's Government in Canada and since the Ojibway could not readthe reference to the Government of Canada in the Treaty Harvesting Clause, and McKayprobably did not specifically refer to Canada in explaining the Treaty, it would not violate theHonour of the Crown to ignore its plain wording. Focusing on ownership rather than HarvestingRights, they submitted at para. 420 of their written closing submissions that "the language usedto describe internal divisions of the Crown in the Treaty language was not material to the Treatybargain."2011 ONSC 4801 (CanLII)[1275] Counsel for Ontario submitted that the principle that doubtful or ambiguous expressionsshould be taken to have the meaning most favourable to the Indians, does not suggest thatunambiguous treaties should be interpreted so as to create benefits to the Indians that were notintended. The principle that "any limitations which restrict the rights of Indians under treatiesmust be narrowly construed" is subordinate to the principle that "the overarching goal of treatyinterpretation, discerning the common intention of the parties to the treaty when assessed in apurposive and contextual manner." Earlier emphasis on the written treaty as a complete record ofthe treaty negotiations and the treaty itself (see for example Horse) has been supplanted byemphasis on ensuring that the Honour of the Crown is fulfilled. He quoted Badger at paragraph14 as follows:As a result, it is well settled that the words in the treaty must not be interpreted in their strict technicalsense nor subjected to rigid modern rules of construction. [Emphasis in original.][1276] I note that the next two sentences of Badger read as follows:Rather, they must be interpreted in the sense that they would have actually been understood by theIndians at the time of the signing. This applies, as well, to those words in a Treaty which wouldimpose a limitation on the right which has been granted.[1277] Here, counsel for Ontario submitted that the principle that treaties should be interpretedflexibly should be applied to Ontario's benefit.[1278] Counsel for Ontario submitted the Plaintiffs' "narrow literal interpretive approach""cannot stand," as it is "divorced from the intentions of the parties and Constitutional reality."Their written argument contained the following: