Keewatin v. Minister of Natural Resources

Part 14. The Answer to Question Two 280[1498] Counsel for Ontario submitted that the doctrine of inter-jurisdictional immunity does notapply to the exercise of provincial proprietary jurisdiction because that doctrine exists in order tomaintain an appropriate balance between valid exercises of federal and provincial legislativeauthority under ss. 91 and 92. Inter-jurisdictional immunity has nothing to do with the exerciseof property rights.[1499] In the section of these Reasons headed "Answer to Question One – Step 3," I havealready mentioned the reference by counsel for Ontario to LaForest on Natural Resources andPublic Property under the Canadian Constitution. supra, in which the author referred to the rightof provinces to deal with their property pursuant to the executive powers at pp. 164 and 167 asfollows:Provincial legislative power over its property carries with it the power of administration and controlby the provincial executive. This means that a provincial government may, without legislation,exercise in respect of its property the same rights as a private owner, and consequently attach suchrestrictions as it deems fit when it makes grants by lease or licence. …[1500] Counsel for Ontario referred to St. Catherine's Milling as an illustration of the "extremelynarrow scope of federal power relative to provincial jurisdiction under s. 109."2011 ONSC 4801 (CanLII)[1501] He cited Brooks-Bidlake and Smylie as authority for the proposition that provincialproprietary power is not constrained by federal legislative power. Brooks-Bidlake at p. 457.Sect. 91 reserves to the Dominion Parliament the general right to legislate as to the rights anddisabilities of aliens and naturalized persons; but the Dominion is not empowered by that section toregulate the management of the public property of the Province, or to determine whether a grantee orlicensee of that property shall or shall not be permitted to employ persons of a particular race. Thesefunctions are assigned by s. 92, head 5, and s. 109 of the Act to the Legislature of the Province; andthere is nothing in s. 91 which conflicts with that view.[Emphasis added.][1502] Counsel for Ontario submitted the Plaintiffs are seeking to use the doctrine of interjurisdictionalimmunity to give the federal government a "supervisory" role over Ontario'sexercise of proprietary and related legislative jurisdiction in the Keewatin Lands.[1503] Counsel for the Plaintiffs submitted that the answer to Question Two is No. In effect,because Treaty Rights are also protected under the Honour of the Crown and s. 35, Ontario isasking this Court to ignore the protection afforded Treaty Rights under the division of powers.[1504] Counsel for the Plaintiffs reiterated that while Ontario can act in its own proprietaryinterest under s. 109 without the federal s. 91(24) interest engaging, it can only continue to do soas long as by so acting it does not significantly interfere with federal interests at the core of s.91(24), including Treaty Harvesting Rights. Ontario can patent land and issue licenses only up tothe point of significant interference.[1505] Section 35 has not overtaken and replaced the division of powers in the circumstanceshere. The Supreme Court of Canada in Morris has specifically rejected the submission nowbeing made by Ontario, holding that the protection provided by s. 91(24)/the doctrine of interjurisdictionalimmunity was not withdrawn when s. 35 was passed. The Supreme Court has held