Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 275j) Binnie J. found at paragraph 25 of Mikisew that there was anticipation of an"uneasy tension between the First Nations' essential demand that they continue tobe as free to live off the land after the treaty as before and the Crown's expectationof increasing numbers of non-Aboriginal people moving into the surrenderedterritory" in the Treaty 8 area. I have found that in the Treaty 3 area, there was nosuch "uneasy tension." The parties did not see from the beginning that theirongoing relationship would be difficult to manage. Apart from the right of wayarea they mutually anticipated little permanent settlement in the Treaty 3 area.Canada understood that if it won the Boundary Dispute, the relationship would berelatively easy to manage since cooperation among the federal departmentsinvolved was expected. If Ontario won the Boundary Dispute and a conflict inuses developed, Morris had provided that Canada would be able to manage thesituation by refusing to authorize proposed uses that crossed the line.[1473] In Mikisew, the Supreme Court of Canada highlighted the difference between substantivetreaty rights that cannot be infringed except upon satisfying the Sparrow test, and proceduralrights that apply under the Honour of the Crown, even before the point of substantive breach ofthe treaty has been reached. It made it clear that the Honour of the Crown requires considerationof the content of the substantive promise, in effect recognition of the overall promise,consultation and monitoring in anticipation of possible breach and, in some circumstances,accommodation to ensure that the line between possible and substantive breach will not becrossed. The Court held that once the geographic scope had been so narrowed that the huntingright was about to become meaningless, any further authorizations of land uses would need tomeet the s. 35 Sparrow test. The Sparrow analysis would apply to the federal Crown as soon asthe line of substantive infringement was crossed. In their submissions about Mikisew, counsel forthe governments did not draw a clear distinction between the duties of governments where therehas not yet been a substantive infringement and where a substantive breach has already occurred.2011 ONSC 4801 (CanLII)[1474] The Plaintiffs submitted that even the evidence of Chartrand in cross-examinationsupports a conclusion that it was not when the Harvesting Right was reduced to meaningless thatthe Treaty Harvesting Clause would be breached and Sparrow would apply, but when non-Aboriginal activities would start to intrude to a degree that they would give rise to seriousconcerns/when they could not accommodate the non Aboriginal activities.[1475] Counsel for the Plaintiffs in argument referred to Chartrand's cross-examination on thepoint about meaninglessness versus serious effect:Q: And that line, I'm going to suggest to you, is not crossed at the point where there's no fishing ofany sort whatsoever available, it's crossed well before then, isn't it? And if you want me to break thisdown --A: Yeah. I mean, certainly the warning and the concern appears long before then.…Q"And what I'm going to suggest to you is that the concern and complaint would have been triggeredat a lower level than that. And this is an example where we see that, where we see sturgeon depletion,and not extinction at this point, but just depletion and the threat of future extinction, triggering acomplaint.