Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 268Affairs did not protect us, did not respond to us when the logging that we were dissatisfied withhappened. They claimed that it was not their jurisdiction.…Q. So is it fair to say that if you had gone to the representative of the provincial government and theyhad satisfied your concerns, you wouldn't have had any reason to go to Indian Affairs about thatissue?A. Yes.[1438] Counsel for the Plaintiffs disagreed with Canada's submission that Canada's obligationsdevolved to Ontario in 1912. He submitted the transfer in 1912 was very different from a transferthat would have had that effect. Ontario was not gaining self-government in 1912. Canada wasnot relinquishing its sovereignty. The annexed lands were still part of Canada.[1439] Counsel for the Plaintiffs submitted that the doctrine of devolution only applies whenlaw-making powers and obligations are transferred from one government to another, not whenassets are transferred within an existing federal framework. Devolution applies, for instance,when a colony has gained independence. In 1912, Ontario did not gain independence fromCanada. There was no establishment of a new legislature, no new grant of a legislative power, orremoval of the Keewatin Lands from Canada. When Canada transferred the Keewatin Lands toOntario, it did so within Canada. The Constitutional division of powers and Canada's obligationsto the Ojibway under them [s. 91(24)] were unaffected. The federal s. 91(24) jurisdiction overIndians, including Treaty Rights, did not change. Canada's obligations under the Treaty wereunaffected.2011 ONSC 4801 (CanLII)[1440] Canada's argument has some practical difficulties that were immediately apparent. Forexample, Canada has continued to pay Treaty 3 annuities and to provide other services to theOjibway in Keewatin since 1912.[1441] Canada submitted that Ontario would not have accepted Keewatin knowing that Canadawould "supervise" Ontario's exercise of its s. 109 jurisdiction. However, Vipond, the expertcalled by Canada to assert that Ontario would not have accepted "supervision," conceded incross-examination that even strong provincial autonomists such as Mowat clearly understood andaccepted that if Canada were exercising a legitimate s. 91 jurisdiction, that would not constituteunacceptable "supervision."[1442] Ontario accepted responsibilities and obligations on the annexation more onerous thanagreeing to s. 91(24) authorizations by Canada whenever Ontario was purporting to significantlyinterfere with Harvesting Rights. For example, Ontario agreed to pay Treaty 9 annuities.[1443] I do not accept Canada's contention that Ontario would not have accepted annexation if itknew it would be required to obtain authorization from Canada for "taking up" of lands inKeewatin.Conclusions on the Devolution Argument[1444] In my view, the jurisdictional analysis to be applied here involves consideration of thedivision of powers. Saywell and Vipond conceded the 1912 Legislation expressly alludes to