Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 252interfere adversely with those Harvesting Rights must be obtained from the federal governmentunder s. 91(24) and under the provisions of the Treaty.[1347] I do not accept the submission of Ontario made in argument that in exercising itsproprietary rights, it has powers akin to those of a fee simple owner, unconstrained by thedivision of powers. [Please see also the section of these Reasons headed "Answer to QuestionTwo - Is Division of Powers Analysis Appropriate Here? Is Ontario Unconstrained by theDivision of Powers? Are Treaty Rights Protected only by s. 35 and the Honour of the Crown?"]Counsel for Ontario cited Hogg, Constitutional Law of Canada, supra, at para 29.3, as follows:29.3 … The federal and provincial governments have full executive powers over their respectivepublic properties. It is neither necessary nor accurate to invoke the royal prerogative to explain theCrown's power over its property. As a legal person, the Crown in right of Canada or the Crown inright of a province has the power to do anything that other legal persons (individuals or corporations)can do. Thus, unless there are legislative or constitutional restrictions [footnote 11] applicable to apiece of public property, it may be sold, mortgaged, leased, licensed or managed at the pleasure of theresponsible government, and without the necessity of legislation. [Emphasis added.][1348] I note that footnote 11 to that paragraph reads as follows:An example of constitutional restriction would be lands reserved for the Indians, which althoughowned by the province, are subject to federal legislative power under s. 91(24).[Emphasis added.][1349] I also note that paragraph 29.4 of the same book, in a section on Legislative power andProprietary Interests, contains the following:Some of the implications of the distinction between legislative power and proprietary interests areless obvious. The exercise of legislative power over, say, fisheries, may severely limit the owner'senjoyment of the property…such a law is valid notwithstanding its incidental effects on proprietaryrights… the provincial power over property is limited by the existence of federal powers.[Emphasis added.][1350] I also note that Canada in exercising its s. 91 jurisdiction, frequently requires furtherauthorizations for land uses, even within provinces with s. 109 powers, when they interfere orthreaten to interfere with a federal jurisdiction. For example, Canada requires such federalauthorizations under the Fisheries Act. Canada's jurisdiction to interfere with land use within aprovince derives from its fisheries jurisdiction under s. 91. Section 35(1) of the Fisheries Actprovides:35. (1) No person shall carry on any work or undertaking that results in the harmful alteration,disruption or destruction of fish habitat.2011 ONSC 4801 (CanLII)Section 35(2) of the Fisheries Act (like the provision in the Harvesting Clause allowing Canadato "take up" lands i.e., to allow use visibly incompatible with Harvesting Rights) allows Canada[Minister] to authorize such harmful disruption or destruction, which is otherwise not allowedabsent a federal authorization:35.(2) No person contravenes subsection (1) by causing the alteration, disruption or destruction offish habitat by any means or under any conditions authorized by the Minister or under regulationsmade by the Governor in Council under this Act.