Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 264the JCPC in St Catherine's Milling declared to be beneficially owned by Ontario. The subjectmatter of the negotiations leading up to the 1891 Legislation was only the Disputed Territory. Herelied in part on a letter (Ex. 1, Vol. 12, tab 585) to the Privy Council enclosing relevantdocuments in which the Superintendent General of Indian Affairs referred to the negotiations to"be opened between the Dominion Government and the Government of Ontario with respect tothe rights of Indians in Reserves in that portion of territory covered by Treaty No. 3 which hasbeen declared by the judgment of the Privy Council of Great Britain to be the property of theprovincial government." (Vipond, March 1, 2010 at pp. 11-13.)[1413] He submitted that the 1891 Legislation was confined to the "said matters" described inthe preamble following from the resolution of the Boundary Dispute, applying only to theDisputed Territory.Conclusions re Applicability of the 1891 Legislation to Keewatin after 19122011 ONSC 4801 (CanLII)[1414] I do not accept the submission of Ontario based on Borden's statement in Parliamentquoted earlier. While I agree that in 1912, Canada and Ontario accepted that Ontario would haves. 109 powers over lands being annexed to Ontario, Borden's answer was directed to "title." ThePlaintiffs do not dispute that title in the annexed lands passed to Ontario. While it wasunderstood that Ontario would have the usual s. 109 powers in Keewatin, I do not accept thatCanada exhibited a clear intent to have the 1891 Legislation (that had taken away Treaty Rightsin respect of the Disputed Territory) apply in Keewatin (that was not in the Disputed Territory atthe time the legislation was passed.)[1415] I have accepted Saywell's and Vipond's evidence (Vipond, February 24, 2010 at p. 52)that the 1891 Legislation was designed to specifically deal with lands dealt with by St.Catherine's Milling.[1416] I have found that the 1891 Legislation resulted from negotiations between Ontario andCanada in respect of "the said matters." It was intended to address the issues in the DisputedTerritory arising out of St. Catherine's Milling. It was implicit that Canada and Ontario intendedto limit its territorial ambit to the Disputed Territory. At the time of the 1891 Legislation, therewere no questions to be resolved concerning Indian Lands in Keewatin.[1417] As Arrow River makes clear, provincial enactments, if restricted to the area to whichenactments are said to apply, are limited to that area.[1418] I have found that but for the 1891 Legislation, Ontario would not have had the right to"take up" lands in the Disputed Territory without authorization from Canada. It must be borne inmind that Ontario is seeking an interpretation of a statute having the effect of limiting TreatyRights.[1419] I have rejected the submission of counsel for Ontario that the "same circumstancesaddressed by the 1894 Agreement existed when the Keewatin Lands were annexed in 1912."When the Agreement to annex Keewatin was reached, there were no circumstances similar tothose existing in 1891/1894 to motivate Canada to compromise the Harvesting Rights of the