Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 245and was well aware when he decided Seybold that Ontario was the beneficial owner of the land.His reasoning illustrates that on the face of intersecting jurisdictions, involvement of more thanone level of government in authorizing uses of lands was not "inconceivable" in his time.[1306] Monitoring and enforcement of Treaty Rights were seen as necessary to protect Canada'swards, the Ojibway and to protect Canada's own strategic interests, as unhappy Ojibway couldhave interfered with the building of the CPR and/or travellers over the Dawson Route.[1307] I have found Morris understood that a loss of the Boundary Dispute would place theOjibway in greater jeopardy, create a greater need for Canada to exercise its legitimate s. 91(24)jurisdiction and interpose itself between them and Ontario the local government (just as theImperial Government had done earlier in order to protect the Indians in the strategic interests ofthe central government) than if Canada won the Boundary Dispute.[1308] Morris understood that if the Treaty had allowed any owner to unilaterally authorize usesinterfering with Harvesting Rights without Canada's further authorization/involvement, the legalresult would be at least threefold: (1) the Ojibway would not be allowed to harvest on those lands[the geographical area of the lands available for harvesting would be increasingly diminished,contrary to the promise made as part of Canada's counter-offer on October 3]; (2) if the Ojibwaydid not have Treaty Harvesting Rights on those lands, the Courts could not require Ontario tojustify its actions in "taking up" those lands even if they significantly infringed Treaty 3Harvesting Rights; (3) Canada would be powerless to protect Ojibway Harvesting Rights inrespect of those lands [with a concomitant powerlessness to protect Canada's other relatedstrategic interests.] That would run contrary to the mutual intention of the parties at the time theTreaty was made, fly in the face of the express promises solemnly made by Canada to theOjibway during the negotiations, violate the Honour of the Crown and have the potential tothreaten security in the West.2011 ONSC 4801 (CanLII)[1309] I have held the Plaintiffs' "narrow, literal, interpretive approach" is not divorced from theintentions of the parties. There is no "mismatch" between the wording of the Treaty and themutual intention of the parties. Canada, the only government that can authorize uses thatsignificantly interfere with Treaty Harvesting Rights, intended to protect the Ojibway by makingit necessary for Canada to authorize any use of land that significantly interfered with OjibwayHarvesting Rights under the Treaty.[1310] After having considered all the evidence and the various interpretations of commonintention, the one that best reconciles the interests of both parties at the time the Treaty wassigned, the chosen interpretation is that Canada promised continuous Harvesting Rights withoutsignificant interference away from the Dawson Route and CPR right-of-way and the Ojibwayrelied upon Canada and only Canada to implement and enforce those Rights. Canada intendedthat in the event it lost the Boundary Dispute, Ontario would not be able to "take up"lands/authorize any land uses that would significantly interfere with Harvesting Rights unlessCanada also authorized such "taking up."