Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 271specifically mentioned the continuing trusteeship obligations of the federal government to theFirst Nations in the area.[1457] There is no plain and clear proof that Canada intended to alter Treaty 3 Harvesting Rightsin 1912.[1458] In short, the Treaty promises made to the Ojibway in 1873 remain unaffected by the 1891Legislation and/or by the 1912 Legislation annexing Keewatin to Ontario.[1459] I have rejected Canada's devolution argument. The answer to Question One is No.The Mikisew Factor[1460] Counsel for Canada asserted at this trial with seeming confidence that we were in essencewasting our time because the issues needing to be decided here have already been conclusivelydetermined in Mikisew.2011 ONSC 4801 (CanLII)[1461] Similarly, counsel for Ontario submitted that when Lord Watson mentioned "questionsleft behind" in St. Catherine's Milling, he was contemplating the same issues already addressedby the Supreme Court in Mikisew. Since the Supreme Court concluded in Mikisew that the party"taking up" lands must allow the Aboriginal rightsholders to retain a meaningful ability toexercise their off-reserve Harvesting Rights (determined on a community-by-community, nottreaty-wide, basis), that standard must be applied here.[1462] In essence, counsel for both governments submitted that the substantive promise inTreaty 3, as in Mikisew, was simply that sufficient lands would remain available post-Treaty toallow for the meaningful pursuit of the Treaty Harvesting Rights.[1463] Counsel for both governments, assuming Canada owes no fiduciary duty to the Ojibwaybut only the same Honour of the Crown duties as it was held to owe to the Cree in Mikisew, andassuming the duty owed by Ontario and Canada is the same, submitted there would be noadvantage to the Ojibway were Canada rather than Ontario to be doing the "taking up" of lands.They submitted that the Supreme Court of Canada in Mikisew has already settled that Canadadoes not owe the Ojibway a fiduciary duty. Since Canada owes no such duty, it does not matterthat in other circumstances, Canada might be required to fulfill more onerous duties to Indiansthan Ontario.[1464] Counsel for Canada submitted that with the exclusive property rights of the provincefirmly established in law, Mikisew and Haida Nation already provide the necessary roadmap forunderstanding the relationship between Ontario's exclusive right to "take up" Crown lands withinits borders and the Plaintiffs' Treaty 3 rights to hunt, fish and gather over Crown lands not yet"taken up."[1465] Counsel for Canada submitted that Mikisew stands for the following propositions atparas. 3, 24, 30, 33 and 51: