Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 272• The Crown's right to "take up" lands under the Treaty is an inherent limitation ontreaty hunting, fishing and trapping rights.• Wording such as is found in Treaty 3 contemplates that "from time to time"portions of the surrendered land would be "taken up" and transferred from theinventory of lands over which the First Nations have Treaty Rights to hunt, fish andtrap, and placed in the inventory of lands where they do not.• Treaty Harvesting Rights are expressly limited to lands not "required or taken upfrom time to time for settlement, mining, lumbering, trading or other purposes."• Such language cannot be clearer in foreshadowing change. Nevertheless, the Crownis expected to manage the change honourably.• In this context, the Honour of the Crown gives rise to a "duty of consultation" inadvance of any "taking up" of lands that may interfere with Treaty Rights. This"principle of consultation . . . goes to the heart of the relationship" betweenAboriginal and non-Aboriginal peoples.[1466] For both governments to have assumed that the Mikisew standard will be applied here,without rigorously comparing the wording of the clauses at issue, the details of the negotiationsof this Treaty and the specific promises made to these Ojibway, was in my view virtuallytantamount to begging the real question to be decided here – what is the correct legalinterpretation of this particular Clause, having regard to all of the circumstances in this case?2011 ONSC 4801 (CanLII)[1467] Treaty Rights are substantive rights that are now Constitutionally protected. Courts mustcarefully determine their scope and context based upon a careful consideration of the specificcircumstances in which the particular treaty was made. One size does not fit all. As one of thewitnesses said, history can be messy.[1468] To properly determine the legal standard to be applied, it was and is necessary tocarefully examine the particular circumstances here in context and to consider the mindset,interests and unique perspectives of each Treaty partner. What promises were made, both inrespect of the content of the Harvesting Rights and in respect of their continuing enforcement?What did these parties intend and understand at the time this Treaty was made? The legalobligations that are owed will depend on the specific wording and circumstances, the mutualunderstanding of these parties at the time this Treaty was made and the interpretation that bestreconciles their interests.[1469] Given the two specific questions posed in this case relating to Ontario's rights andobligations, counsel agreed that it is not necessary for this Court to specifically determineCanada's obligations to the Ojibway under the Harvesting Clause. However, Canada's andOntario's assertion that Canada could not owe a fiduciary duty to the Ojibway here because nonewas found in Mikisew, and that Ontario's duties could not be held to be higher than Canada's,required me to consider these issues. The characterization of Canada's duty as fiduciary orotherwise and the definition and delineation of the extent of its obligations to the Plaintiffs inrespect of these Treaty Rights are not directly before me here. I shall not comment further exceptto say only the obvious: that the existence of a fiduciary duty is dependent on a number ofcircumstances defining the nature of the relationship. Any future determination of Canada's