Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 244the past. Nolin recorded McKay's representation in his notes. McKay then turned to theCommissioners and said, "Of course I told them so."[1300] Dawson recalled that in 1873 the Commissioners had promised they would forever havethe use of their fisheries to induce the Ojibway to enter into the Treaty. He noted it had greatweight with the Ojibway, who had been refusing to enter into the Treaty.[1301] I have found that the Commissioners believed that given the particular circumstances ofTreaty 3, including the obstinate nature of the Ojibway, the barren and sterile characteristics ofmost of its land, its poor prospects for agricultural uses, the urgency of completing the Treatyincluding a pressing need for security so the December 31, 1876 deadline for completing theCPR through the Treaty 3 territory could be met, it was not only reasonable but also necessary tomake the promise of the continuing Harvesting Rights as in the past.[1302] The Chiefs were demanding continuing Harvesting Rights as in the past. If the promisehad not been made, the Rainy River Ojibway would have refused to enter into the Treaty.2011 ONSC 4801 (CanLII)[1303] I have already detailed the reasons for concluding that Canada did not intend that ifOntario were held to be the owner of Treaty 3 lands, it would have an open-ended power toremove Ojibway Treaty Harvesting Rights from tracts of land "taken up" in their traditionalterritory, no matter how significant the impact.[1304] I have rejected the submission of Ontario that:421 … no one – neither the Aboriginal parties to Treaty 3, nor the Treaty Commissioners (norCanada or Ontario) – thought or intended that two levels of government might be required to takeaction in order to authorize the taking up of land for settlement, mining or lumbering within theterritorial boundaries of the North-West Territories, or Ontario, much less that one level ofgovernment might act as a gatekeeper over another. [It] was not part of [the] mutual understanding.and the submission that involvement of more than one government would have been unheard of,"inconceivable," in 1873.[1305] I have found Morris did intend a two-step process to be followed in the DisputedTerritory in the event that Canada lost the Boundary Dispute whenever Ontario purported tosignificantly interfere with Treaty Harvesting Rights. Even in 1873, there was nothing novel orunforeseen about the possibility of intersecting jurisdictions, especially given Morris' knowledgeof the existence of the Boundary Dispute and the possibility that Ontario could be held to bebeneficial owner of Treaty 3 lands. The wording chosen clearly anticipated the possibility ofinvolvement of more than one government. While two governments exercise legitimatelegislative jurisdiction, it is eminently foreseeable that two governments may be simultaneouslyinvolved in authorizing land use. Morris clearly understood that in 1873 when he referred toCanada in the Harvesting Clause. That it was foreseeable that more than one government couldhave a role in authorizing uses of land is illustrated by Chancellor Boyd's analysis in Seybold.His reasons illustrate that he did not understand "taking up" to be an incident of ownership. Herecognized that where intersecting jurisdictions were in play, more than one government couldbe involved in authorizing land uses. Boyd had also been the trial judge in St. Catherine's Milling