Keewatin v. Minister of Natural Resources

Part 4. Euro-Canadian History 1758-1871 20had been brought into existence. It was noted in the Québec Resolutions that the federalgovernment would be responsible for making that happen.[130] The final details of Confederation were negotiated at conferences held in London in 1866and early 1867.The Provenance of S. 91(24)[131] Section 91(24) of the BNA Act of 1867 gave the federal government responsibility over"Indians and Lands reserved for Indians."[132] Because Milloy could find no direct evidence in the historical record to illuminate theintentions of the Fathers of Confederation as to the meaning and intent of s. 91(24) and therationale for its placement, he followed a standard historical approach, contextualizing an eventwithin its larger surroundings. He considered two factors to be most relevant: (1) the availabilityof the HBC Territories; and (2) the existence of an Indian policy tradition dating from the mid-18 th century to Confederation.2011 ONSC 4801 (CanLII)1. Availability of the HBC Territories[133] Milloy opined that when Canada contemplated its new Western Empire and turned itsattention to security and defence issues, given the strength and arms of the western tribes and thesparseness of Euro-Canadian settlement in the West, the Fathers of Confederation (just like theirImperial predecessors) considered Indians to be vitally important for strategic and securityreasons.[134] In addition, to convince Britain to transfer the HBC Territories to it, Canada was requiredto agree to protect the Indians who lived there. Resolution: Schedule B to the Order-in-Councildated June 23, 1870, admitting Rupert's Land and the North-Western Territory into the union,contained the following:… upon the transference of the territories in question to the Canadian Government, it will be the dutyof the Government to make adequate provision for the protection of the Indian tribes whoseinterests and well-being are involved in the transfer.[U]pon the transference of the territories in question to the Canadian Government, the claims of theIndian tribes to compensation for lands required for purposes of settlement will be considered andsettled in conformity with the equitable principles which have uniformly governed the British Crownin its dealings with the aborigines.[Emphasis added.][135] The 1868 HBC Deed of Surrender read in part as follows:And claims of Indians to compensation for lands required for purposes of settlement shall be disposedof by the Canadian Government, and the Company shall be relieved of all responsibility in respect tothem.[136] On October 9, 2009, Milloy gave the following historical summary with respect to thelink between Rupert's Land and the placement of s. 91(24) at pp. 53, 58-59: