Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 257[1371] In my view Dean LaForest's book does not support the proposition urged upon this Courtthat Ontario is entitled to exclusive use without regard to the Treaty Harvesting Rights. He wroteat p. 84:A more difficult question arises in relation to the privilege reserved … to hunt and fish onsurrendered lands. Some statements of the Privy Council [St. Catherine's, Seybold] appear to indicatethat this privilege may be a trust or interest in the land but Greene J. of the Ontario High Court laterheld the contrary in. Commanda at p. 178.[Emphasis added.][1372] He disagreed with the reasoning in Commanda.[1373] While the Supreme Court of Canada has since discarded the concept of usufructuaryrights, LaForest's reasoning at pp. 118-119 that hunting rights be interpreted as a reservation ofpart of the usufructuary rights nevertheless remains apposite:Some treaty provisions, however, might well be interpreted as a reservation of a part of theusufructuary right, rather than as a mere promise not attached to the land. Thus in the treatyexamined in the St. Catherine's case, there is the following provision: "…the Indians are to have rightto pursue their avocations of hunting and fishing throughout the surrendered territory, with theexception of those portions of it which may from time to time be required or taken up for settlement"… such a provision, if it is binding on the province, may curtail the freedom of action of theprovincial legislature in connection, for example, with its game and fishing regulations. In the St.Catherine's case, the only references to this clause indicate that the Dominion has legislative power toregulate the Indians' privilege and that questions might arise respecting the right to determine to whatextent, and at what periods, the territory over which the Indians exercise these rights is to be taken upfor settlement. These statements appear to recognize the hunting and fishing rights as against theprovince and this seems to be the view taken of the case in Ontario Mining Co. v. Seybold, where it issaid:It was decided by this Board in the St. Catherine's Milling Co.'s Case that prior to thatsurrender the province of Ontario had a proprietary interest in the land, under the provisionsof s. 109 of the BNA Act, 1867, subject to the burden of the Indian usufructuary title, andupon the extinguishment of that title by the surrender the province acquired the fullbeneficial interest in the subject only to such qualified privilege of hunting and fishing aswas reserved to the Indians in the treaty.2011 ONSC 4801 (CanLII)From this it can certainly be argued that the right to hunt and fish is an unsurrendered portion of theusufructuary right of the Indians in lands reserved for them, and consequently that it is a trust or aninterest other than that of the provinces in the such lands. It would follow that, subject to theexceptions in the treaty, the right would come within the exclusive jurisdiction of the federalauthorities as relating to Indians and lands reserved for Indians. But this was not the view taken in R.v. Commanda.[Underlining emphasis added][1374] I reject the submission of counsel for Ontario that the qualified Harvesting Rights towhich the JCPC referred in St. Catherine's Milling and Seybold were not interests other than thatof the province in the same under s. 109.Conclusion re Constitutionality of the Harvesting Clause as Written[1375] In summary, the mention of the Dominion of Canada in the Harvesting Clause and thereservation to Canada of the power to authorize interference with otherwise unlimited Harvesting