Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 269continuation of the federal s. 91(24) trusteeship/protective jurisdiction role in the territory beingannexed. It was well understood by 1912 that even though the federal government had noproprietary rights, it could exercise its s. 91(24) jurisdiction to protect Indians and by so doing,adversely affect a province's proprietary rights.[1445] Keewatin was annexed to Ontario in 1912 using the process mandated by theConstitution Act, 1871. Section 3 provided as follows:The Parliament of Canada may from time to time, with the consent of the Legislature of any Provinceof the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon suchterms and conditions as may be agreed upon to by the said Legislature, and may, with the likeconsent, make provision respecting the effect and operation of any such increase or diminution oralteration of territory in relation to any Province affected thereby.[1446] In the lead-up to the passage of the 1912 Legislation, I find (based on Newcombe'sopinion) that Canada believed it could not alter the division of powers. It believed it couldimpose conditions of transfer on Ontario, requiring it to expressly recognize and uphold OjibwayTreaty Rights, including Harvesting Rights. Ontario accepted the conditions imposed by Canadabecause it was in no position to demand otherwise. Canada had no legal obligation to transferKeewatin to it. In 1912, Ontario stood to benefit from the annexation of Keewatin, as it would beable to derive revenues therefrom. Ontario wanted access to a port on Hudson's Bay.2011 ONSC 4801 (CanLII)[1447] It is not necessary to accept Canada's devolution argument to "permit the Treaty tosurvive." After 1912, Canada had, and in 2011 still has, the power to fulfill its Treaty obligationsunder s. 91(24) of the Constitution Act, 1867. Moreover, s. 2 of the 1912 Extension Legislationexpressly and specifically provided that the trusteeship of Indians in the Territory would remainthe responsibility of Canada. In the lead up to annexation, Canada appears to have taken positivesteps to ensure that Indian rights in the territory would be respected and that federal jurisdictionin respect of Indians and lands reserved for the Indians would continue. It imposed conditions inthe legislation on their face designed to affirm existing Treaty Rights, not modify them.[1448] The wording, particularly of s. 2(c) of the Act, reinforces my conclusion that Parliamentintended to affirm the continuity of federal jurisdiction over Indians and Indian lands, consistentwith Newcombe's opinion. The phrase "the trusteeship of the Indians in the territory shall remainin the Government of Canada subject to control of Parliament" recognizes the continuedresponsibility of Parliament for the welfare and guardianship of the Indians under s. 91(24)(Vipond, February 25, 2010 at pp 116, 132-133; Saywell, April 7, 2010 at pp. 205-212.)[1449] I accept Saywell's evidence that "trusteeship of the Indians" was intended to be a politicalshorthand for the general wardship/guardianship responsibility of the federal government tomanage the affairs of the Indians. I find that the 1912 Legislation contemplated that Canada, notOntario, would continue to fulfill the trusteeship role.[1450] I have accepted the submission of counsel for the Plaintiffs and the evidence of Vipondand Saywell that in Keewatin, the principle that the federal government has a role to act asprotector guardian of the Indians and their interests is reinforced by the Constitutional provisions