Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 241363. While the starting point to determine the common intention and mutual understanding of theparties is the text of the treaty, consideration must also be given to extrinsic evidence of the historicaland cultural context of the treaty, even in the absence of any ambiguity in the treaty text.…365. [I]n the Aboriginal context, courts must "go beyond the usual restrictions imposed by thecommon law, in order to give effect to the true purpose of the dealings" between Aboriginal peoplesand the Crown. This principle applies even where a technical construction is advanced by anAboriginal party.[1279] Counsel for the Plaintiffs denies the wording of the Harvesting Clause is "divorced fromthe intentions of the parties and Constitutional reality." Focusing on the subject matter of theHarvesting Clause, Harvesting Rights (not property rights), he submitted that the Clause accordswith both. In 1873, Canada was the entity with control over Harvesting Rights and the onlyentity that could limit or extinguish them.[1280] The Clause as written contemplates on its face that subjects of the Dominion may beauthorized by Canada to "take up" lands under the Treaty/to use lands in a manner visiblyincompatible with Harvesting Rights. Where Canada is not the owner of the land, the words ofthe Treaty on their face contemplate a two-step approval process in the event that land usesthreaten to interfere with Harvesting Rights: (1) authorization to use the land from the owner ofthe land; and (2) additional authorization from Canada.2011 ONSC 4801 (CanLII)[1281] Counsel for the Plaintiffs submitted the Ojibway are not asking this Court [as the FirstNations did in Marshall or in Sioui] to imply terms in the Treaty. They are content with thelanguage contained in the formal Treaty. Where, as here, the Treaty Commissioners clearly,deliberately and unambiguously expressed the mutual intentions of the parties and made it clearthat only Canada could limit the Ojibway right to hunt over the ceded territory, the Court shouldenforce the Treaty wording.2(a)(ii) The Literal Meaning of the Words[1282] The words of the Harvesting Clause in the formal Treaty are as follows:Harvesting Clause… the said Indians, shall have the right to pursue their avocations of hunting and fishing throughoutthe tracts surrendered as hereinbefore described … saving and excepting such tracts as may from timeto time be required or taken up for settlement, mining, lumbering, or other purposes by her saidGovernment of the Dominion of Canada, or any of the subjects thereof duly authorized therefore bythe said Government.[1283] The primary thrust of Ontario's argument is that the words in the Harvesting Clause,literally interpreted, make no sense. Only owners can "take up" lands.[1284] Counsel for the Plaintiffs submitted the words do make sense. "Taking up" means whatthe Supreme Court of Canada has said it means: using or authorizing uses of lands in a mannerincompatible/inconsistent with Harvesting Rights.