Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 270of the Rupert's Land and Northwest Territory Order and the provisions of the Constitution Act,1871.[1451] Canada's s. 91(24) jurisdiction over Indians including Treaty Rights did not devolve toOntario in 1912 upon the transfer of the Keewatin lands to Ontario. None of the bases fordevolution arose or existed in 1912. Fobister's attempt to get assistance from Ontario does notprove Canada's assertion. He also sought redress through Canada, as he clearly understoodIndian Affairs to have a continuing responsibility.Step 7: The Answer to Question One[1452] In Keewatin, Ontario does not have the right to limit Treaty Rights by "taking up landsunder the Treaty." It can issue land authorizations under s. 109 apart from the Treaty, but only incompliance with s. 109, i.e., only so long as the authorizations do not have the effect ofsubstantially interfering with Treaty Harvesting Rights. To authorize uses that significantlyinterfere with Treaty Harvesting Rights under the Treaty, Ontario, or users of land alreadyauthorized by Ontario to use the land, must also obtain the authorization of Canada.2011 ONSC 4801 (CanLII)[1453] I do not accept Ontario's submission that a "No" answer to Question One represents "amassive incursion" on Ontario's proprietary rights and is contrary to the mutual intentions of theparties and the Constitutional reality. Rather, it is a "Yes" answer that would not accord with themutual intention of the parties or with the Constitutional reality. Such an interpretation would notbest reconcile the interests of the parties at the time the Treaty was made. Under s. 109, Ontario'srights are expressly subject to "any interest other than that of the province in the same," includingTreaty Harvesting Rights. Had I ignored the clear reference in the Treaty to authorization of"taking up" by Canada, I am of the view that that would have been to allow an unwarrantedincursion on Ojibway Harvesting Rights by Ontario.[1454] The Commissioners deliberately provided in the Harvesting Clause that in the eventOntario won the Boundary Dispute or a new province with s. 109 powers were formed under s. 3of the 1871 Constitution Act, authorization of "taking up" by Canada would be needed inaddition to Ontario's or that new province's authorization under s. 109. In that event, theCommissioners did contemplate and intend that a two-step authorization process would need tobe followed.[1455] Although Canada bargained away its control over Ojibway Harvesting Rights on lands"taken up" by Ontario in the Disputed Territory and passed legislation amending the Treaty inthat respect, Treaty Harvesting Rights outside the Disputed Territory (e.g., in Keewatin) were notaffected.[1456] The circumstances surrounding the negotiation for the annexation of Keewatin differedconsiderably from those surrounding the negotiations of the 1891 Legislation. During thenegotiations for the 1912 Legislation, there was no mention of altering Treaty 3 rights. Canadawas aware that part of the Treaty 3 lands was being annexed to Ontario. No legislation waspassed amending Treaty 3 Harvesting Rights in Keewatin; on the contrary, the 1912 Agreement