Keewatin v. Minister of Natural Resources

Part 14. The Answer to Question Two 279[1491] Counsel for Ontario submitted that because Her Majesty the Queen in Right of Ontarioholds the beneficial ownership in all non-reserve lands ceded under Treaty 3, Ontario canexercise its proprietary right to authorize uses and dispositions of lands within Ontario as it seesfit like any other fee simple owner, unconstrained by the division of legislative powers under theConstitution. …22(c) ii. In authorizing forestry activities on Crown lands off-reserve, Ontario is exercising itsproprietary powers under s. 109 of the Constitution Act, 1867. The exercise of proprietary power isnot limited by inter-jurisdictional immunity, only by s. 35 of the Constitution Act, 1982 (and, whereapplicable, the doctrine of federal paramountcy – which is not engaged here);[1492] The doctrine of inter-jurisdictional immunity is "too blunt an instrument" toaccommodate the conflicting interests of Ontario, Canada and the First Nations because it"hampers the legitimate interplay between federal and provincial powers, creates seriousuncertainty as to the delineation of the core of a head of power, risks creating legal vacuums, andis generally superfluous." Its application should be restricted to narrow areas critical to givingeffect to a limited number of federal heads of power.2011 ONSC 4801 (CanLII)[1493] That doctrine does not apply to Ontario in its exercise of its proprietary jurisdiction.Ontario qua landowner is free to act in a manner that would otherwise be ultra vires.[1494] He cited cited Hogg, Constitutional Law of Canada, supra, at para. 29.2, as follows:29.2 … the provincial Legislature may legislate terms as to the use or sale of provincial propertywhich it could not legislate in other contexts, for example, a stipulation that timber be processed inCanada [footnote: Smylie v. The Queen (1900), 27 O.A.R. 172 (C.A.)], or that no Chinese or Japaneselabour be employed in cutting timber [footnote: Attorney-General for British Columbia and theMinister of Lands v. Brooks-Bidlake and Whitall, Ltd. (1922), 63 S.C.R. 466]. This broad legislativepower to dispose of a province's own property is consistent with the broad executive power enjoyedby the province as proprietor.[1495] He also cited the portions of the same text that I have already quoted in the sections ofthese Reasons dealing with the credibility of the experts and with the Constitutionality of theHarvesting Clause.[1496] Counsel for Ontario submitted that the doctrine of inter-jurisdictional immunity cannotapply where Ontario is not relying on its legislative authority under the Constitution, butexercising its proprietary rights like any other property owner. Its exercise of provincialproprietary jurisdiction is unrelated to the division of powers. Section 109 is regulated by theHonour of the Crown [duty to consult and accommodate] and s. 35 [any significant limitation onthe right must be justified] and not by s. 91(24).[1497] The fact that Ontario can also exercise its proprietary rights by way of legislation enactedunder s. 92(5) does not mean that Ontario is limited by competing federal heads of legislativeauthority under the division of powers. Section 92(5) should not be viewed as an independentsource of provincial jurisdiction.