Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 255land at issue. This right, it argues, cannot be limited by the protection for Aboriginal rights found ins. 35 of the Constitution Act, 1982. To do so, it argues, would "undermine the balance of federalism"59 The answer to this argument is that the Provinces took their interest in land subject to "anyInterest other than that of the Province in the same" (s. 109). The duty to consult and accommodatehere at issue is grounded in the assertion of Crown sovereignty which pre-dated the Union. It followsthat the Province took the lands subject to this duty. It cannot therefore claim that s. 35 deprives it ofpowers it would otherwise have enjoyed…. There is therefore no foundation to the Province'sargument on this point.[1362] In his written argument, counsel for Ontario appeared to be agreeing that before thesurrender, under s. 109, provincial rights were subject to the burden of the Indian usufructuaryright and that upon the extinguishment of that title by surrender, the province was subject to thequalified privilege of hunting and fishing reserved to the Indians in the Treaty. However, itattempted to distinguish Delgamuukw and Haida Nation at paragraph 102 of its written closingargument on the basis that "…qualified harvesting rights are a very different type of legal interestthan Aboriginal title."2011 ONSC 4801 (CanLII)[1363] Black's Law Dictionary, 8th ed., confirms that "usufructuary" is a property interest,defining it as "one having the right to usufruct; specif., a person who has the right to the benefitsof another's property; a life-renter." "Usufruct" is defined as "A right to use and enjoy the fruitsof another's property for a period without damaging or diminishing it, although the property rightmay naturally diminish over time." [Emphasis added.][1364] In considering the distinction between proprietary and non-proprietary rights, urged uponme by counsel for Ontario, I have considered the following:[1365] In Sparrow, Chief Justice Dickson and LaForest J wrote at pp. 1111-1112:Fishing rights are not traditional property rights. They are rights held by a collective and are inkeeping with the culture and existence of that group. Courts must be careful to avoid the applicationof traditional common law concepts of property as they develop their understanding of the "suigeneris" nature of Aboriginal rights.[Emphasis added.][1366] In Sundown at para. 35:Aboriginal and treaty rights cannot be defined in a manner which would accord with common lawconcepts of title to land or the right to use another's land. Rather, they are the right of Aboriginalpeople in common with other Aboriginal people to participate in certain practices traditionallyengaged in by particular Aboriginal nations in particular territories.[Emphasis added.][1367] The Supreme Court of Canada has, in a number of cases, held that s. 91(24) covers twodistinct heads of powers, "Indians" and "Lands reserved for the Indians." This distinction issignificant in understanding how there can be a continuing federal interest in Keewatin Landsthat are not "Lands reserved for the Indians." Aboriginal and Treaty Rights other than Aboriginaltitle can fall under the subject matter of "Indians" and not "Lands reserved for the Indians." ChiefJustice Lamer summarized this principle as follows in Delgamuukw at paragraph 138:The picture which emerges from Adams is that Aboriginal rights which are recognized and affirmedby s. 35(1) fall along a spectrum with respect to their degree of connection with the land. At the one