Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 267Step 6: The Devolution Argument[1433] Counsel for Canada (not Ontario) made much of the 1912 Legislation, submitting that itconferred rights and imposed obligations on Ontario and absolved Canada from any furthers. 91(24) obligations in Keewatin relating to "taking up" of land in Keewatin. He submitted thatall of Canada's obligations devolved to Ontario under the 1912 Legislation. In effect, counsel forCanada submitted that in 1912, Ontario agreed to accept all responsibilities for Indians inKeewatin and Canada agreed to relinquish all jurisdiction over Indians in Keewatin.[1434] In both its oral and written submissions, counsel for Canada submitted that upon thetransfer of the beneficial interest, by operation of law, Canada's rights and obligations, bothConstitutionally and pursuant to Treaty, devolved to that local government, in this case, Ontario.(See Secretary of State at 132.) Under s. 2(a) of the Boundary Extension Act, Ontario was to actas Canada had "heretofore" in dealing with the "rights of the Indian inhabitants" of the District ofKeewatin. "Rights" included Treaty Rights. Canada submitted that under s. 2(a), Ontario took theplace of Canada in dealing with First Nations' rights. The content of those rights did not change.They submitted it is also a fundamental principle that a treaty promise given by the Crown in oneof its aspects cannot be read so as to prevent the Crown "from transferring or alteringsovereignty, or as binding the [Crown] to carry out obligations when it no longer has the powerto do so." Manuel at 828. See also Maritime Bank. When the Keewatin lands became part ofOntario, s. 109 of the Constitution Act, 1867 applied. Pursuant to legislative authority and byoperation of law, immediately upon transfer Ontario gained title to the lands "unencumbered byany operation of s. 91(24)." Smith at pages 562, 564 and 569.2011 ONSC 4801 (CanLII)[1435] Where the Constitution mandates that something must or can be done only by Ontario,the Treaty must be adjusted by substituting "Ontario" for "Canada" to accord with theConstitutional imperative.[1436] Counsel for Canada submitted that upon receipt of the benefits of the transferred lands,Ontario became "burdened with the obligation imposed by the Treaty" to honour the right of theIndians to hunt and fish over lands now within Ontario's exclusive jurisdiction. To so find would"permit the Treaty to survive." At the moment the Keewatin Lands became part of Ontario,s. 109 of the Constitution Act, 1867 applied, confirming that Ontario gained title to the lands"unencumbered by any operation of s. 91(24)," but "burdened with the obligation imposed by theTreaty" to honour the right of the Indians to hunt and fish over lands now within Ontario'sexclusive jurisdiction. Smith at pages 562, 564 and 569; Seybold at 81, cited with approval inSmith at 564-65.[1437] Counsel for Canada relied on the following evidence of Fobister from November 25,2009:Q. And so at the time when you were chief, when there was -- when you had concerns about logging,within the Treaty 3 area, would you speak to somebody from the provincial government about thatconcern?A. Initially, I did talk to someone within the provincial government. When they didn't listen, then Iwent to what the treaty had to offer us prior that Indian Affairs would take care of us. And I did gothere. And he didn't -- and at that time, I don't know if I should mention the name, but anyway, Indian