Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 256end, there are those Aboriginal rights which are practices, customs and traditions that are integral tothe distinctive Aboriginal culture of the group claiming the right. However, the "occupation and useof the land" where the activity is taking place is not "sufficient to support a claim of title to the land"(at para.26). Nevertheless, those activities receive constitutional protection. In the middle, thereare activities which, out of necessity, take place on land and indeed, might be intimately related to aparticular piece of land. Although an Aboriginal group may not be able to demonstrate title to theland, it may nevertheless have a site-specific right to engage in a particular activity. I put the pointthis way in Adams …At the other end of the spectrum, there is Aboriginal title itself. As Adams makes clear, Aboriginaltitle confers more than the right to engage in site-specific activities which are aspects of the practices,customs and traditions of distinctive Aboriginal cultures. Site-specific rights can be made out even iftitle cannot.[Emphasis added.]and at paragraph 176:2011 ONSC 4801 (CanLII)176 I conclude with two remarks. First, even if the point were not settled, I would have come to thesame conclusion. The judges in the court below noted that separating federal jurisdiction overIndians from jurisdiction over their lands would have a most unfortunate result -- the governmentvested with primary constitutional responsibility for securing the welfare of Canada's Aboriginalpeoples would find itself unable to safeguard one of the most central of native interests — theirinterest in their lands. Second, although the submissions of the parties and my analysis have focussedon the question of jurisdiction over Aboriginal title, in my opinion, the same reasoning applies tojurisdiction over any Aboriginal right which relates to land. As I explained earlier, Adams clearlyestablishes that Aboriginal rights may be tied to land but nevertheless fall short of title. Thoserelationships with the land, however, may be equally fundamental to Aboriginal peoples and, for thesame reason that jurisdiction over Aboriginal title must vest with the federal government, so too mustthe power to legislate in relation to other Aboriginal rights in relation to land.[Emphasis added.][1368] The Ojibway concept of their ability to harvest and use the natural resources of the land isconsistent with the Chief Justice's statement in Delgamuukw that Aboriginal peoples can haveHarvesting Rights integral to their distinctive culture that are rights that fall within thejurisdiction of the federal government under s. 91(24). Here, Ojibway hunters, based on theevidence of Lovisek and Fobister, exercised exclusive control over their lands before the Treatywas signed and, at the very least, site specific activities after. Morever, their Harvesting Rightson their lands as in the past were reserved to them under the Treaty.[1369] The Treaty Harvesting Rights here, like Aboriginal title, are based on an established preexistinguse of land recognized by the Treaty Commissioners. In Seybold, the JCPC held Treaty3 Harvesting Rights were "reserved to the Indians in the Treaty."[1370] Dean La Forest noted in his book Natural Resources and Public Property under theCanadian Constitution at p. 120: "... it does, of course, matter to [the Indians] where they huntand fish; the privilege is thus attached to land and would appear to constitute a trust or interestother than that of the province in the same." [Emphasis added.] At p. 179 of his book, he wrote:"Reasons have already been advanced in support of the view that the right to hunt and fish is aninterest preserved by s. 109."