Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 249[1329] Counsel for the Plaintiffs submitted that the arguments of both governments that theJCPC in St. Catherine's Milling effectively decided this case, by determining that Ontario hastitle to the lands and that therefore there can be no federal role in determining where, when, howor to what extent Ontario may exercise its proprietary rights, is hard to reconcile with LordWatson's statement to the effect that the JCPC was not determining how hunting rights were tobe limited.[1330] Counsel for the Plaintiffs also referred to Saywell's evidence that in St. Catherine'sMilling, Lord Watson was indicating that the JCPC was not deciding where, when, how and bywhom lands could be taken up.[1331] He referred as well to Vipond's evidence that Lord Watson was referring to the importantquestion, involving how the federal government's s. 91(24) obligation to protect hunting andfishing rights would mesh with the province's s. 109 proprietary rights and also that the JCPC didnot decide that Ontario, the owner of the lands in the Disputed Territory, was free and clear ofthe burden of the Ojibway hunting and fishing mentioned in the Treaty.2011 ONSC 4801 (CanLII)[1332] Vipond's cross-examination on February 26, 2010 contained the following at pp 102-103:Q. So it's your view -- and not speaking as a lawyer but a political scientist, that Lord Watson isconveying the message that the question of how the federal government's jurisdiction with respect tothe hunting rights would interact with the province's power to take up lands is a matter that was notsettled by the St. Catherines Milling case?A. That's how I interpret it, yes.Q. And in terms of understanding the actions of political actors following the St. Catherines Millingdecision, that's a significant passage, isn't it?A. Yes.[Emphasis added.][1333] Vipond agreed on February 26, 2010 at p. 104 that the issue decided in St. Catherine'sMilling was who had the right to issue timber licenses on lands in Ontario. He agreed that theanswer to that question depended on who was the owner of the land. Lord Watson held thatOntario was the owner and the federal government had no right to issue licenses or appropriateOntario's beneficial interest in timber in Ontario. At the same time, he opined that Ontario'sproprietary interests and the federal government's exclusive power to regulate the Indians'privilege of hunting and fishing had to be understood in relation to each other. How the twointerests mesh with each other is a matter for Constitutional interpretation and legal doctrine.[1334] The Plaintiffs here are not claiming that Canada has proprietary rights over lands inOntario. They are claiming that Canada has legislative rights under s. 91(24) to protect Indians asrequired, including protecting their Treaty Rights.[1335] I have already held that when Morris drafted the Treaty, he understood that the federalgovernment would not be able to appropriate the proprietary rights of Ontario were Canada tolose the Boundary Dispute. At the same time, he understood Canada would be able to deal withmatters properly within its s. 91(24) jurisdiction, including Treaty Rights. Acting as a Dominionofficial, he recognized the importance of specifying which level of government was responsiblefor what. Recognizing Canada's obligation to protect Treaty Rights, he mentioned Canada in the