Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 247mining or lumbering. To reach a contrary interpretation would be inconsistent with Ontario'sproprietary jurisdiction under s. 109 and overturn a cardinal feature of provincial fiscalresources. This would be a dramatic change to the balance of Canadian federalism as it applies inthe Keewatin Lands and has been so applied for over a century, and would represent a markedand unwarranted incursion into provincial proprietary and legislative jurisdiction.[1317] Counsel for Ontario submitted that even if the Treaty Commissioners intended to giveCanada a role in "taking up" lands in order to protect the Ojibway, mention of Canada in the"taking up" clause was unconstitutional.[1318] Not surprisingly, I have held that when Morris drafted the Harvesting Clause, he wasfocusing on Harvesting Rights, not property rights.[1319] I have found Morris, the Commissioners and Privy Council all intended and understood"taking up by the Dominion of Canada" did not relate to ownership rights but to Canada's s.91(24) power to protect, or alternatively restrict, otherwise unrestricted Harvesting Rights.2011 ONSC 4801 (CanLII)[1320] In my view, in considering the Constitutionality of the Harvesting Clause as written, itwould be incorrect for this Court to consider only Ontario's proprietary rights. In my view, thetask of this Court in considering the Constitutional issue here is to determine, as Vipond said,how provincial proprietary rights and powers interact or mesh with federal Constitutional rightsand powers over Indians. Although he held that Ontario owned the Disputed Territory, includingthe timber on it, Lord Watson in St Catherine's Milling nevertheless recognized the reality ofintersecting jurisdictions, just as Morris had done in 1873, and the Courts have done ever since.The intersecting authorities are, on the provincial side, administrative control over provinciallands and resources, and on the federal side, Indians and lands reserved for Indians.Does Canada have a Constitutional Role under s. 91(24) in protecting Harvesting Rights inOntario?[1321] There are two Constitutional protections for Indians built into the structure of theConstitution Act, 1867 – the assignment of jurisdiction over Indians and Indian Affairs to thefederal government in s. 91(24) and the qualification of provincial ownership rights in s. 109.[1322] This Court must decide whether Morris was properly acting within Canada's s. 91(24)jurisdiction when he deliberately opted to specifically mention "taking up by Canada" in theHarvesting Clause, as I have found to protect Treaty 3 Harvesting Rights.[1323] Counsel for Ontario submitted that St. Catherine's Milling is determinative. Morris'reference to Canada in the Harvesting Clause is unconstitutional. The JCPC in that case made itclear that since Ontario had beneficial ownership of the Disputed Territory, it had exclusivejurisdiction over it. The JCPC recognized Ontario's exclusive authority to administer and disposeof Crown lands within the province; since 1888, all patents, licences and other authorizationsover Crown lands within the province have been issued by Ontario, "without federalsupervision." St. Catherine's Milling and Smith confirmed that (outside of treaty reserves) thefederal government's s. 91(24) jurisdiction over lands subject to Indian title was removed once