Keewatin v. Minister of Natural Resources

Part 14. The Answer to Question Two 277a) I have accepted Chartrand's evidence on January 21, 2010 at pp. 55-6 that huntingwas and is central to the Indianness of the Treaty 3 Ojibway. To simply focus onthe physical aspects of the activity would be a mistake. To understand thesignificance of hunting to the Ojibway, a holistic approach must be taken.b) I have also accepted Fobister's evidence summarized earlier in these Reasons aboutthe importance of traditional harvesting to his people.c) In my view, the evidence in this case amply supports the conclusion that the Treaty3 Ojibway were and are vitally concerned about being able to continue andmaintain the traditional harvesting activities I have found were promised to themduring the Treaty 3 negotiations. Traditional harvesting was and is closely linkedwith their identity and fundamentally important to them culturally, economicallyand spiritually. Traditional harvesting was and is tied to their understanding andperception of themselves and their society. Indeed, before 1873 and ever since, theright to harvest has been central to the identity and economy of the Treaty 3Ojibway.2011 ONSC 4801 (CanLII)Analysis[1483] I have answered Question Two by dealing with the issues raised during argument in thefollowing sequence:1 Is a division of powers analysis appropriate here? Can Ontario act as any other feesimple landowner without regard to the division of powers?2 If a division of powers analysis applies, is the matter (here traditional HarvestingRights under the Treaty) at the core of the federal s. 91(24) power?3 Will the proposed provincial action/legislation have an adverse impact on thatcore? Does inter-jurisdictional immunity apply to indirect interference?4 Does s. 88 of the Indian Act apply?5 What is the answer to Question Two?Issues Raised in Argument1. Is a Division of Powers analysis appropriate here?[1484] Generally, counsel for Ontario submitted that the answer to Question Two is Yes, Ontariocan justifiably infringe Treaty 3 Harvesting Rights. The issue is the scope of Ontario'sConstitutional capacity, if it cannot "take up" lands under the Treaty but can authorize the use oflands under s. 109.[1485] Counsel for Ontario submitted this Court should not be concerned about allowing Ontarioto infringe Treaty 3 Harvesting Rights because Ontario recognizes it is bound to honour theTreaty under the Honour of the Crown and s. 35 of the Constitution Act, 1982.