Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 262[1401] Ontario and Canada did not consider it sufficient to rely on a simple agreement. Canadapassed legislation to allow Ontario to "take up" lands within Ontario without the authorization ofCanada. Had Ontario been entitled to grant lands free of Harvesting Rights on the basis of theTreaty words alone, such legislation would have been unnecessary.[1402] I find that to the detriment of the Ojibway, Ontario sought and obtained rights fromCanada it did not already have under s. 109 or under Treaty 3. It successfully "bargained" withCanada to be able to "take up" land free of Indian hunting and fishing rights under the Treaty, bythreatening to refuse to confirm the Treaty 3 reserves if Canada refused to pass legislationallowing that to happen.[1403] I find that the 1891 Legislation had the effect of amending Treaty 3, not simplyconfirming Ontario's rights before it was passed.[1404] But for the 1891 Legislation, Ontario would not have had the power to "take up" lands inthe Disputed Territory in a manner visibly incompatible with Treaty Harvesting Rights withoutfirst receiving the authorization of Canada. The 1891 Legislation amended Treaty 3 by takingaway Harvesting Rights the Treaty 3 Ojibway would otherwise have had.2011 ONSC 4801 (CanLII)[1405] Despite Canada's concession in relinquishing Harvesting Rights on lands taken up byOntario in the Disputed Territory, by 1915 Ontario still had not confirmed the Reserves orrecognized the headlands principle.[1406] Whether Canada's action in acceding to Ontario's demands was justifiable is not to bedecided here.5(b) Did the 1891/1894 Legislation/Agreement Apply to Keewatin After 1912?[1407] It is undisputed that prior to the annexation of Keewatin to Ontario in 1912, the 1894Agreement did not apply in Keewatin. Prior to 1912, Ontario had neither legislative powers norproprietary interest in Keewatin because it was outside of its boundaries.[1408] As noted earlier, the 1891 Legislation provided as follows:With respect to the tracts to be, from time to time, taken up for settlement, mining, lumbering or otherpurposes and to the regulations required in that behalf, as in the said treaty mentioned, it is herebyconceded and declared that, as the Crown lands in the surrendered tract have been decided to belongto the Province of Ontario, or to Her Majesty in right of the said Province, the rights of hunting andfishing by the Indians throughout the tract surrendered, not including the reserves to be madethereunder, do not continue with reference to any tracts which have been, or from time to time maybe, required or taken up for settlement.[Emphasis added.][1409] Counsel for Ontario submitted:468…the language employed in section 1 of the 1894 Agreement does not delineate any particulargeographic ambit to which it applies. Instead, it refers to "Crown lands in the surrendered tract" –which reads as though all of the Treaty 3 lands fall within Ontario…