Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 260[1388] Saywell agreed that in the January 17, 1889 letter, Mowat was recognizing that thewording of the Harvesting Clause gave rise to a legal question. Did Ontario have a right toauthorize land use free and clear of the Indian Treaty right of hunting and fishing?[1389] In his January 17, 1889 letter Mowat did mention "taking up." He did not refer to "takingup by Canada." However, the reference to Canada in the Harvesting Clause would not haveescaped his notice. He would have understood that a Court could determine that before Ontariocould authorize uses of land that purported to interfere with Treaty Harvesting Rights, Ontariowould need the authorization of Canada.[1390] Vipond agreed in cross examination that Mowat understood that as owner, Ontario couldauthorize use of lands under s. 109 apart from the Treaty. That right did not emanate from theTreaty. However, he also understood that a court could rule that Ontario's rights were subject toOjibway Harvesting Rights under the Treaty. In addition, Mowat was aware that in St.Catherine's Milling, the JCPC had noted that Ontario's rights were subject to the qualifiedprivilege of hunting and fishing.2011 ONSC 4801 (CanLII)[1391] Mowat wanted Ontario to have unfettered rights to authorize land uses within theDisputed Territory.[1392] With his January 17, 1889 letter to Dewdney, Mowat enclosed a proposed Order inCouncil to be passed by Canada, which read as follows:It is hereby declared… that all the territory surrendered by the said treaty is now required forsettlement, or mining, or lumbering purposes… any right of the Indians under the said treaty topursue the avocations of hunting and fishing aforesaid shall not and do not apply to lands which areor which shall be the subject of such grants, licenses, sales or leases as aforesaid.[Emphasis added.](Saywell report, Ex. 137-2, pp 37-38)[1393] Had Canada agreed to Mowat's draft, the Ojibway would have lost their hunting rights inall of the Disputed Territory, not just on lands "taken up" by Ontario. [As eventually passed, the1891 Legislation did not incorporate Mowat's suggested wording but instead used the "takingup" wording Morris had used in the Treaty in 1873, but without the qualifier "by the Dominion."][1394] Negotiations between Canada and Ontario ensued. The Ojibway were not included, andwere apparently unaware of them.[1395] Ontario, having just won in St. Catherine's Milling in the JCPC, apparently perceived thatit had the upper hand. It was threatening not to confirm the reserves that Canada had set up yearsearlier in fulfillment of the Treaty promise. [Unlike in the Robinson Treaties where the metesand bounds description excepted the lands that had already been identified by the VidalCommission as reserves, Treaty 3 included all the lands but with a promise to create reserves.This gave Ontario the argument that the reserves had been created out of lands that had alreadypassed into its ownership. Ontario was insisting that the reserves could not have been allocated tothe Ojibway by Canada without its consent.][1396] Canada needed to be able to deliver on its promises to create reserves.