Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 266[1426] Sullivan's "Construction of Statutes" (5 th ed., supra) contains the following at p. 515:"The liberal interpretation principle applies…to any issues relative to the treaty as a source ofrights."[1427] Special considerations apply when interpreting statutes potentially affecting Aboriginalrights:It is presumed that a legislature does not intend to narrow, extinguish or otherwise interfere withAboriginal rights. [Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed.(Markham, ON: Butterworths, 2002) at p. 412.][1428] LaForest J. wrote in Mitchell at p. 143: "If legislation bears on treaty promises, the Courtswill always strain against adopting an interpretation that has the effect of negating commitmentsundertaken by the Crown."[1429] The Supreme Court of Canada has made it clear that any intention to extinguishAboriginal title must be "clear and plain" (Sparrow, Bear Island). Dickson C.J.C. and LaForest J.applied this to non-title Aboriginal rights in Sparrow. In addition, in interpreting all legislationrelating to Aboriginals (such as that in 1894 and 1912), "doubtful expressions [should be]resolved in favour of the Indians," to adopt the words of Dickson J. (as he then was) at p. 36 ofNowegijick. The Honour of the Crown requires the Crown to fulfill its promises.2011 ONSC 4801 (CanLII)[1430] The 1891-1894 Legislation/Agreement did not expressly amend the Treaty provision re"taking up" except in respect of the Disputed Territory. In 1912, the 1891 Legislation was notamended to make it apply to an expanded area. The 1891-1894 Legislation/Agreement was notspecifically mentioned in the 1912 Legislation. Neither the 1891 nor the 1912 Legislationmentions the Keewatin Lands. It is not necessary to infer their inclusion to give the legislationmeaning.[1431] I have accepted the evidence of Saywell and Vipond that before the 1912 Legislation waspassed, after reviewing Hansard and all other relevant documents relating to the 1912annexation, neither of them found any discussion about extinguishing or altering Treaty 3 rightsor any evidence that Canada/Parliament considered or agreed to alter, extinguish or in any wayamend the terms of Treaty 3. To the contrary, Canada appears to have been concerned to ensurethat Indian rights in the territory would be respected and protected and that federal jurisdiction inrespect of Indians and their Lands would continue. The 1912 Legislation made it clear thatCanada expected to continue its trusteeship role in connection with Indians (a position that runscounter to viewing 1891 Legislation removing Treaty Rights formerly inapplicable to Keewatin,as applicable after 1912.) It inserted conditions in the legislation to that end.[1432] I accept the submission of counsel for the Plaintiffs that the 1912 Legislation did notmake it clear that in Keewatin, Ojibway Harvesting Rights throughout the tract were beingabridged or extinguished with respect to tracts taken up by Ontario. There was no clear and plainintention by the federal government to remove or extinguish Harvesting Rights in Keewatin atthe time it was annexed to Ontario in 1912.