Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 248the lands were surrendered. To require Ontario to obtain federal authorization would be at oddswith the recognition of exclusive provincial authority over ceded lands expressed in St.Catherine's Milling. See Sundown at paras. 34-35; Saanichton Marina at 171; Smith at 252; St.Catherine's Milling at 59.[1324] Counsel for Canada submitted that Smith stands for the proposition that post-surrender,the provincial title is "relieved of the burden of the Indian rights under s. 91(24)." He relied onthe following passage in Smith in support of the proposition that after the 1873 surrender, Canadahad no continuing s. 91(24) jurisdiction off-reserve. At p. 564:The effect of a complete release, therefore, would be the withdrawal of these lands from Indian usewithin the contemplation of s. 91(24) of the Constitution Act. As found in St. Catherine's, the title ofthe Province would be unencumbered by any operation of s. 91(24).[1325] Counsel for the Plaintiffs distinguished Smith on its facts. In that case there was acomplete surrender of land with no reservation of Harvesting Rights.2011 ONSC 4801 (CanLII)[1326] Counsel for the Plaintiffs submitted that Ontario and Canada have misapprehended themodern law of the division of powers by failing to account for the fact that provincial ownershiprights and jurisdiction in respect of public lands are qualified by federal jurisdiction over Indiansand Treaty Rights and by the Harvesting Clause in the Treaty reserving Harvesting Rights to theOjibway. St. Catherine's Milling and Smith do not stand for the proposition that Canada had noongoing s. 91(24) jurisdiction after the Treaty was made. In St. Catherine's Milling, the positionof the parties was that the land was free and clear of any interest except the Treaty HarvestingRight. Lord Watson specifically reserved judgment regarding how the federal government's s.91(24) jurisdiction with respect to Harvesting Rights would mesh with Ontario's powers under s.109.[1327] Counsel for the Plaintiffs submitted that counsel for Ontario overlooked Lord Watson'sstatement in St. Catherine's that the JCPC was not determining how the hunting rights were to belimited or to what extent. It clearly declined to address or resolve that issue. Lord Watsoncontinued:The fact, that it still possesses exclusive power to regulate the Indians' privilege of hunting andfishing, cannot confer upon the Dominion power to dispose, by issuing permits or otherwise, of thatbeneficial interest in the timber which has now passed to Ontario.…There may be other questions behind, with respect to the right to determine to what extent, and atwhat periods, the disputed territory, over which the Indians still exercise their avocations of huntingand fishing, is to be taken up for settlement or other purposes, but none of these questions are raisedfor decision in the present suit.[1328] In the first sentence, Lord Watson recognized that even though the federal governmenthad no proprietary interest in the timber, Canada, not Ontario, still had exclusive power toregulate the hunting right. There is an ongoing federal jurisdiction with respect to hunting andfishing. Implicit in those words was a recognition by the JCPC that the Treaty Harvesting Rightsexisted and that Ontario's s. 109 rights were subject to those Treaty Rights.