Keewatin v. Minister of Natural Resources

Part 14. The Answer to Question Two 281that the doctrine of inter-jurisdictional immunity continues to apply to protect treaty rights and torender inoperative an otherwise valid provincial law (the Wildlife Act) to the extent of theimpairment. In that case, the Court did not hold that s. 92(13) was merely confirmatory of theprovince's jurisdiction to legislate in relation to its proprietary jurisdiction. Deschamps andAbella JJ. for the majority wrote at paras. 42-43:42 In this case, there is no question that the relevant provisions of the Wildlife Act are valid provinciallegislation under s. 92(13) of the Constitution Act, 1867, which refers to Property and Civil Rights inthe Province. However, where a valid provincial law impairs "an integral part of primary federaljurisdiction over Indians and Lands reserved for the Indians" (Four B Manufacturing Ltd. v. UnitedGarment Workers of America, [1980] 1 S.C.R. 1031, at p. 1047), it will be inapplicable to the extentof the impairment. Thus, provincial laws of general application are precluded from impairing"Indianness". (See, for example, Dick v. The Queen, [1985] 2 S.C.R. 309, at p. 326.)43 Treaty rights to hunt lie squarely within federal jurisdiction over "Indians, and Lands reserved forthe Indians". As noted by Dickson C.J. in Simon, at p. 411:It has been held to be within the exclusive power of Parliament under s. 91(24) of theConstitution Act, 1867, to derogate from rights recognized in a treaty agreement made with theIndians.This Court has previously found that provincial laws of general application that interfere with treatyrights to hunt are inapplicable to particular Aboriginal peoples. (See, for example, Simon, at pp. 410-11; Sundown, at para. 47.) Where such laws are inapplicable because they impair "Indianness",however, they may nonetheless be found to be applicable by incorporation under s. 88 of the IndianAct.[Emphasis added.][1506] In Morris, McLachlin C.J.C. and Fish J., while disagreeing with the majority aboutwhether hunting after dark is always unsafe and as such is treaty protected, agreed with themajority that the doctrine of inter-jurisdictional immunity applies to protect core federallegislative competence from inference by governments as follows:90. Under the doctrine of inter-jurisdictional immunity, valid provincial legislation is constitutionallyinapplicable to the extent that it intrudes or touches upon core federal legislative competence over aparticular matter. Thus, exclusive federal jurisdiction under s. 91(24) protects "core Indianness" fromprovincial intrusion: Delgamuukw, at para. 177. Valid provincial legislation which does not touch on"core Indianness" applies ex proprio vigore. If a law does go to "core Indianness" the impugnedprovincial legislation will not apply unless it is incorporated into federal law by s. 88 of the IndianAct.2011 ONSC 4801 (CanLII)91. Indian treaty rights and Aboriginal rights have been held to fall within the protected core offederal jurisdiction: Simon at p. 411; Delgamuukw, at para. 178. It follows that provincial laws ofgeneral application do not apply ex proprio vigore to the hunting activities of Indians that areprotected by a treaty.[Emphasis added.][1507] The law is settled that provincial laws of general application cannot impair treaty rights atthe core of Canada's s. 91(24) jurisdiction.[1508] While most of the relevant cases have involved provincial regulation of treaty rights,counsel for the Plaintiffs submitted that in Saanichton Marina, the British Columbia Court ofAppeal enjoined the construction of a marina that was adversely affecting fish habitat and treaty