Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 265Treaty 3 Ojibway in Keewatin. There was a much different dynamic in the negotiations betweenCanada and Ontario leading up to the 1912 Legislation than there had been in the periodimmediately after Canada had lost the St. Catherine's Milling case. In the former, Ontario hadthe upper hand. Canada wanted to get the reserves confirmed. In 1912, Ontario had no right toannex the Keewatin Lands. Ontario was the supplicant, seeking to extend its territory and tosecure access to a port on Hudson's Bay.[1420] The 1891 Legislation was clearly intended to respond to St. Catherine's Milling, whichdid not affect Keewatin, while the 1912 Legislation was motivated by reasons totally unrelated toCanada's obligations to the Ojibway or Ontario's s. 109 rights.[1421] The extension lands were lands to which Ontario had no claim. Ex. 1, Vol. 16, tabs 737and 742 are letters, the first dated March 16, 1909 to Sir Wilfrid Laurier from Whitney, thePremier of Ontario, and the second from Whitney to Laurier dated November 11, 1909, whichcontain the following:andTab 737:We are quite aware of the appositeness of the old and more or less trite saying that 'One should notlook a gift horse in the mouth.' But, subject to that, and desiring to speak with the utmost good feelingand temper, my Colleagues and I desire to bring to your notice our very great disappointment thatyour Government has not allotted to us at least the territory east of the Nelson River.Tab 742:We quite appreciate that the Province has no legal right or claim in the matter whatever, andtherefore, strictly and technically speaking, we cannot complain of or object to what might underother circumstances be termed an injustice.[1422] I find that in 1912, Ontario recognized it should not look a gift horse in the mouth. In1912, it was in no position to bargain for rights additional to s.109 re "taking up." Ontario tookits rights in Keewatin as they were, without negotiating for additional rights in respect of "takingup" as it had done in the Disputed Territory.2011 ONSC 4801 (CanLII)[1423] I have not accepted Chartrand's evidence that the One Man Lake Reserve in Keewatinwas established under the process created in the 1891 Legislation, but have accepted theevidence of Vipond that Chartrand was mistaken and that the One Man Lake Reserve wasestablished under a different ad hoc process that did not reflect the process outlined in the 1891Legislation.[1424] Having considered the evidence of Saywell and Vipond, I have concluded that there is noevidence, let alone plain and clear evidence, that Canada intended the 1891 Legislation or 1894Agreement to apply to the Keewatin Lands at the time it was passed or in 1912.[1425] In interpreting principles applicable to questions dealing with Indian interests, generallyspeaking, the interpretation that impairs the Indian interests as little as possible is to be preferred(Osoyoos).