Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 242Conclusion Re 2(a)(i) and 2(a)(ii)[1285] The process clause defines the circumstances under which the Harvesting Right can belimited. Given the adverse effects that the application of the limitation could have on theprotection the Courts will extend and the level of scrutiny to be applied to governmental actionsthat impinge upon Treaty Rights, to "read-out" this process clause would be unwarranted.[1286] In my view, the plain and literal wording of the Treaty is that the Ojibway will haveunlimited Harvesting Rights throughout the tract surrendered, i.e., over all the ceded territory,off-reserve as well as on-reserve, unless the process specified in the Treaty is followed. TheOjibway are entitled to exercise their Harvesting Rights unless Canada has authorized theirlimitation or extinguishment.[1287] A literal reading of the Treaty supports the Plaintiffs' position without any reference toany contextual evidence. While Ontario can authorize the use of lands under s. 109, its rights arelimited by Treaty Harvesting Rights. Where another reading would be to the disadvantage of theOjibway, that reading should be rejected.2011 ONSC 4801 (CanLII)2(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 the Treaty wassigned?[1288] Rather than simply relying on the plain and literal interpretation of the Harvesting Clause,having regard to all of the evidence and other principles of treaty interpretation set out herein, Ihave gone further and chosen among the various possible interpretations of common intentionthe one that best reconciles the interests of the parties at the time the Treaty was signed.[1289] I have focused on the evidence about this particular Treaty. Chartrand gave evidence thatthe specific facts here must be carefully examined. The Supreme Court of Canada has repeatedlyheld that treaty rights should be determined having due regard to the particular terms, contextand history of the treaty in question (e.g., Badger at 343-344.) In considering the intentions ofthe parties, a trial Court is not to leap from one treaty to another but to base its findings on thespecific facts related to the particular treaty under consideration.[1290] In Sundown, Cory J wrote:25. Treaty rights, like Aboriginal rights, are specific and may be exercised exclusively by the FirstNation that signed the treaty. The interpretation of each treaty must take into account the First Nationsignatory and the circumstances that surrounded the signing of the treaty.…Thus, in addition to applying the guiding principles of treaty interpretation, it is necessary to take intoaccount the circumstances surrounding the signing of the treaty and the First Nations who lateradhered to it. For example, consideration should be given to the evidence as to where the huntingand fishing were done and how the members of the First Nation carried out these activities.[1291] I have considered that I must not only look at the unique specific circumstances, but Imust also consider the Aboriginal perspective.