Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 259Step 5: The Effect of the 1891/1894 Legislation/Agreement5(a) Did the 1891/1894 Legislation/Agreement ("the 1894 Agreement") Declare Ontario'sExisting Rights Or Give Ontario Additional Rights?[1384] As mentioned earlier, within weeks of the release of St. Catherine's Milling, on January17, 1889, Mowat wrote to Dewdney, the federal Minister of the Interior, pressing Ontario'sproprietary rights within the Disputed Territory, and suggesting that they were not subject toHarvesting Rights under the Treaty. I have found on a plain reading of that letter that Mowat,having read the words in the Harvesting Clause, was uncertain that it would allow Ontario todevelop lands "free of the Indian right of hunting and fishing." He understood that the Treatyappeared to provide that Canada's authorization would be required under the Treaty, if Ontariowere purporting to interfere with Harvesting Rights under the Treaty. He wrote: "But whetherthat would be a legal consequence without an Order in Council or statutory enactment might bethe subject of more or less litigation and friction."2011 ONSC 4801 (CanLII)[1385] I have already held that read literally, the Harvesting Clause did not allow "taking up" byOntario and that the mutual intention of the parties was not to allow "taking up" by Ontario. Ihave therefore concluded the Answer to Question One in 1873 was No.[1386] Even though Mowat probably had no knowledge of the facts I have reviewed aboutmutual intention of the Treaty parties or the details of the 1873 negotiations, Mowat was also atrained Constitutional lawyer and in his dual role of Premier and Attorney General hadrepeatedly argued for Ontario in the JCPC. He clearly understood from the plain wording of boththe Treaty and s. 109 that a Court could determine that Ontario's s. 109 proprietary rights weresubject to Treaty Harvesting Rights and that the wording of the Clause was Constitutional havingregard to Canada's s. 91(24) powers and the specific wording of s. 109.[1387] Vipond agreed that Mowat in his January 17, 1889 letter to Dewdney was writing aboutthe question that Lord Watson had left unanswered in St. Catherine's Milling, namely, whenOntario makes grants of land, does the user or owner take them "free from the Indian right ofhunting and fishing?" Vipond's cross-examination on February 26, 2010 contains the following:At pp. 111-112Q. … I'm going to suggest to you that what Mowat is writing about here is essentially the questionthat Lord Watson says is left unanswered. That is, what happens to the Indian rights when Ontariomakes grants of land, the question being are those rights -- and if you look at Mowat's letter, I wantyou to see the words "free from the Indian right of hunting and fishing."A. Yes……At pp. 113-114:Q. And he's saying that there might be legal problems with that if there isn't either an Order-in-Council or legislation from the federal government ensuring that that is what actually happens,correct?A. Yes. …[Emphasis added.]