Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 251elected. If, however, the Legislature purports to confer upon others proprietary rights where itpossesses none itself, that, in their Lordships' opinion is not an exercise of the legislative jurisdictionconferred by s. 91. If the contrary were held, it would follow that the Dominion might practicallytransfer to itself property which has, by the British North America Act, been left to the provinces andnot vested in it.[Emphasis added.][1343] Duff J. for the majority in the Water Powers reference case highlighted the differencebetween unwarranted federal interference with a provincial jurisdiction and a legitimate federalconstraint on provincial action. He explained at page 219 the way to reconcile the twojurisdictions:We must, as best we can, reconcile the control by the provinces of their own assets as assets, with theexercise by the Dominion of its exclusive powers for the purposes which those powers were intendedto subserve. This can only be accomplished by recognizing that the proprietary rights of the provincesmay be prejudicially affected, even to the point of rendering them economically valueless, throughthe exercise by the Dominion of its exclusive and plenary powers of legislation under the enumeratedheads of section 91. On the other hand, in giving effect to the provisions of the British North AmericaAct, we must rigorously adhere to the radical distinction between these two classes of enactment:legislation in execution of the Dominion's legislative powers under section 91, which may, in greateror less degree, according to the circumstances and the nature of the power, affect the proprietaryrights of the provinces, and even exclude them from any effective control of their property; and, incontradistinction, legislation conceived with the purpose of intervening in the control and dispositionof provincial assets, in a manner, which, under the enactments of that Act touching the distribution ofassets, revenues and liabilities, is exclusively competent to the provinces. [Emphasis added.][1344] In Seybold, the JCPC affirmed that Canada does have jurisdiction to affect provincialproprietary rights by reason of its s. 91(24) jurisdiction with respect to Indians in the same waythat it can affect provincial proprietary rights by reason of its s. 91 jurisdiction over fisheries:Their Lordships repeat for the purposes of the present argument what was said by Lord Herschell indelivering the judgment of this Board in the Fisheries Case, as as to the broad distinction betweenproprietary rights and legislative jurisdiction.[1345] In Sparrow the Supreme Court reaffirmed that Canada does have legislative power toaffect provincial proprietary rights. Dickson C.J.C. and LaForest J. held [for the Court] at pp.1097-1098:The distinction to be drawn was carefully explained, in the context of federalism, in the first[Fisheries Case]. There, the Privy Council had to deal with the interrelationship between, on the onehand, provincial property, which by s. 109 of the Constitution Act, 1867 is vested in the provinces(and so falls to be regulated qua property exclusively by the provinces) and, on the other hand, thefederal power to legislate respecting the fisheries thereon under s. 91(12) of that Act.2011 ONSC 4801 (CanLII)The Supreme Court of Canada then quoted from BNA Act, 1867 the portion shown underlined inthe quote at paragraph 1342 above.[1346] In the case of the Treaty Harvesting Rights, the Plaintiffs are not submitting that thefederal government can authorize a forestry operation without the province first granting theproprietary rights necessary to carry out the operation. No forestry operation can be carried outwithout a provincial authorization to do so. At the same time, if the forestry operation willforeseeably and significantly interfere with Treaty Harvesting Rights, a federal authorization to