Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 254Rights reserved to the Indians in Treaty 3 impose a limitation on Ontario's s. 109 jurisdiction, asan interest under s. 109 "other than an interest of the province in the same."[1358] In St. Catherine's Milling, the JCPC mentioned that Ontario's s. 109 rights are subject tothe qualified privilege of hunting and fishing mentioned in the Treaty. It did not decide thatOntario could "take up" lands in Ontario without regard to Treaty Harvesting Rights.[1359] In Seybold, the JCPC also held that the extinguishment was not complete, at para. 3:The lands in question are comprised in the territory within the province of Ontario, which wassurrendered by the Indians by the treaty of October 3, 1873, known as the North-West Angle Treaty.It was decided by this Board in the St. Catherines Milling case, that prior to that surrender theprovince of Ontario had a proprietary interest in the land, under the provisions of s. 109 of the BritishNorth America Act, 1867, subject to the burden of the Indian usufructuary title, and upon theextinguishment of that title by the surrender the province acquired the full beneficial interest in theland subject only to such qualified privilege of hunting and fishing as was reserved to theIndians in the treaty."[Emphasis added.][1360] In a portion of his decision where he spoke for the whole Court in Delgamuukw ChiefJustice Lamer wrote at para. 175:175 The province responds by pointing to the fact that underlying title to lands held pursuant toAboriginal title vested with the provincial Crown pursuant to s. 109 of the Constitution Act, 1867. Inits submission, this right of ownership carried with it the right to grant fee simples which, byimplication, extinguish Aboriginal title, and so by negative implication excludes Aboriginal title fromthe scope of s. 91(24). The difficulty with the province's submission is that it fails to take account ofthe language of s. 109, which states in part that:2011 ONSC 4801 (CanLII)109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces ofCanada . . . at the Union . . . shall belong to the several Provinces . . . subject to any Trustsexisting in respect thereof, and to any Interest other than that of the Province in the same.Although that provision vests underlying title in provincial Crowns, it qualifies provincial ownershipby making it subject to the "any Interest other than that of the Province in the same". In St.Catherine's Milling, the Privy Council held that Aboriginal title was such an interest, and rejected theargument that provincial ownership operated as a limit on federal jurisdiction. The net effect of thatdecision, therefore, was to separate the ownership of lands held pursuant to Aboriginal title fromjurisdiction over those lands. Thus, although on surrender of Aboriginal title the province would takeabsolute title, jurisdiction to accept surrenders lies with the federal government. The same can besaid of extinguishment -- although on extinguishment of Aboriginal title, the province would takecomplete title to the land, the jurisdiction to extinguish lies with the federal government.[Emphasis added.][1361] A provincial government attempted to revive the argument that ownership gave itexclusive rights to lands that could not be limited by protection of Aboriginal rights in HaidaNation. The Supreme Court of Canada affirmed that Crown ownership of lands under s. 109 wasqualified by pre-existing Aboriginal rights at paras. 58-59:58 The Province's argument rests on s. 109 of the Constitution Act, 1867, which provides that "[a]llLands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada . . . at the Union. . . shall belong to the several Provinces." The Province argues that this gives it exclusive right to the