Keewatin v. Minister of Natural Resources

Part 4. Euro-Canadian History 1758-1871 21A. Boiling it down to a summary, the imperial government was worried about the defence of theterritory, and for those reasons I explained, would not take on its administration. The Hudson's BayCompany wanted out of the administration ... It was expensive, and there were growing doubts thatthey were able to defend the area.The Canadians – and by that I mean the … united Canadians… were willing to take it on as part ofthe – of part of the development of the Confederation scheme, largely for economic reasons as well.And so that meant that one had to decide where it went. And the only reasonable place to put it wouldbe on the federal list. There are no colonies out there, and the federal government would be then bestplaced to develop administrative structures and facilitate its development.As one of the central challenges to administration and the development of that territory was theworrisome state of First Nations people there, particularly plains people south of the SaskatchewanRiver, as they were a considerable military force. It made sense as well the that s.91(24), or theresponsibility for Indians and lands reserved for the Indians, would also be put on the … federal list.And that's where you get to – they think that's how this development with respect to Rupert's Landand the reorganization of the economic foundation of Empire and its political ramifications of Canadalead you directly to placing 91(24) on the list, on the federal list, rather than in any other place in theConstitution.2. The Existence of Indian Policy Tradition2011 ONSC 4801 (CanLII)[137] To establish a model for the management of Indian Affairs, the Fathers of Confederationlooked to the long established Imperial model that had been faithfully followed in Ontario datingback to at least the Proclamation of 1763.[138] Milloy opined that the Fathers of Confederation understood that treaties were needed inthe West to meet national priorities. Conciliation was crucial to nation-building.[139] When s. 91(24), the assignment of "Indians and Lands reserved for Indians" was put onthe federal list, it was assumed as a matter of national importance that relationships with FirstNations should be administered centrally from the top of the organizational pyramid. Milloy saidthe placement of s. 91(24) represented a continuation of direct control of Aboriginaladministration from the top, following a tradition of insulating/separating Indians from settlerand local legislatures for strategic reasons, a "replication of a system of protection that allowedan honest broker…to stand between settlers…and tribal groups."[140] Macdonald, Brown, Rose and Mackenzie (the second prime Minister) believed that thefederal government should protect individuals and minorities against arbitrary acts by localgovernments.[141] Professor Hogg [Peter W. Hogg, Constitutional Law of Canada, 5th ed., Vol. 1. (Toronto:Thomson Carswell, 2007)] writes at 756:The main reason for section 91(24) seems to have been a concern for the protection of the Indiansagainst local settlers, whose interests lay in an absence of restrictions on the expansion of Europeansettlement. The idea was that the more distant level of government, the federal government, would bemore likely to respect the Indian reserves that existed in 1867, to respect the treaties with the Indiansthat had been entered into by 1867, and generally to protect the Indians against the interests of localmajorities.