Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 258Rights under the Treaty, is Constitutional. Ontario's s. 109 rights are subject to the HarvestingRights under the Treaty, an interest other than of the province in the lands and also to Canada'ss. 91(24) jurisdiction.[1376] It is necessary to consider s. 91 and s. 109 in relation to each other. An activity can have aproprietary aspect governed by a province and a federal aspect governed by the federalgovernment.[1377] I accept that under s. 91 Canada can exercise its legislative jurisdiction in relation toIndians and Indian lands including protecting Treaty Rights. Under the Treaty, only Canada canauthorize "taking up" of lands for uses that will significantly interfere with Treaty HarvestingRights.[1378] I am of the view that the "taking up" clause was not an improper attempt to interfere withproprietary rights, but a valid exercise of a legitimate federal head of power.2011 ONSC 4801 (CanLII)[1379] In specifically referring to Canada in the Harvesting Clause, the Treaty Commissionershad no intention of interfering with Ontario's s. 109 proprietary powers/the granting of Crowninstruments except to the extent it was necessary to use its s. 91(24) powers to protect theHarvesting Rights promised to the Ojibway under the Treaty. To the extent that the exercise ofits federal jurisdiction over Indians and Treaty Rights would affect Ontario's proprietary rightsunder s. 109, that was Constitutionally allowable. Treaty Rights are squarely within thejurisdiction of the federal government under s. 91(24).[1380] While I have found that Morris had no intention of attempting to appropriate Ontario's s.109 rights, I have also found he had no intention of expanding Ontario's rights by conferringrights to Ontario under the Treaty it did not already have under s. 109, thereby underminingOjibway Harvesting Rights. Believing that Canada must keep its promises to the Indians, hedrafted the Harvesting Clause with a view to protecting the Indians and in turn ensuring thatCanada would have the power to keep its promises and its security interests would not beundermined.[1381] The Canadian Constitutional framework does not require this Court to ignore treatywording intended by Canada to protect treaty rights pursuant to s. 91(24). It does not require theCourt to interpret words protective of treaty rights in a manner designed to defeat treaty rights.[1382] Canada can deal with matters within its s. 91(24) jurisdiction, including treaty rights, bothas a matter of Constitutional law and based on the wording of the treaty.Step 4: In light of Steps 1, 2 and 3 above, What is the Answer to Question One as of1873?[1383] The answer to Question One as of 1873 was No.