Keewatin v. Minister of Natural Resources

Part 14. The Answer to Question Two 282fishing by the Tsawout people under the Douglas Treaty. See also White; Bartleman; Simon;Sundown.[1509] Counsel for the Plaintiffs distinguished the cases relied on by counsel for Ontario in theirattempt to support their contention that Ontario can exercise its proprietary rights without regardto the division of powers. He submitted that Smylie, decided before Canadian Western andMorris, did not involve provincial rights that conflicted with a core federal jurisdiction. Interjurisdictionalimmunity does not apply to the federal trade and commerce power as it is not aperson, place or thing. Indians are federal persons. Treaty Harvesting Rights are at the core ofthe federal s. 91(24) jurisdiction over Indians. In Smylie, provincial powers under s. 109 were notlimited by an interest other than that of the province in the same. There was no such pre-existinginterest. The licensee in Smylie had no prior right to sell timber across the border. Unlike inSmylie, Treaty Harvesting Rights here are protected as an interest other than that of the provincein the same.2011 ONSC 4801 (CanLII)[1510] Counsel for the Plaintiffs submitted that the reasoning in Brooks Bidlake has beenovertaken, as it was decided before Canadian Western. Were Brooks Bidlake to be decidedtoday, an inter-jurisdictional immunity analysis would be required. On the facts in BrooksBidlake, a Court using the Canadian Western analysis would probably conclude that thelimitation involving Japanese and Chinese workers was not at the core of the federal citizenshipjurisdiction/power under s. 91(25) (see page 457) and for that reason, the doctrine of interjurisdictionalimmunity would not apply. [Unlike the case at bar, where the limitation onHarvesting Rights involving Indians is at the core and inter-jurisdictional immunity would befound to apply.] Had the legislation in Brooks Bidlake contained a general prohibition directed atkeeping Chinese persons out of the province, inter-jurisdictional immunity would apply. SeeUnion Colliery at p. 587. At the same time, post-1982, the limitation in Brooks Bidlake involvingJapanese and Chinese workers would be held to be unconstitutional.[1511] In Northwest Falling, the Court allowed federal interference with provincial proprietaryinterests where provincial jurisdiction could have adverse effects on federal heads of power.[1512] In a number of cases, the Supreme Court of Canada has held that s. 91(24) covers twodistinct heads of powers: "Indians" and "Lands reserved for the Indians." While most importantin the context of Aboriginal title cases, this distinction is significant here in understanding thecontinuing federal interest in lands in Keewatin that are not "Lands reserved for the Indians."Treaty Rights other than Aboriginal title fall under the subject matter of "Indians." Indians canhave treaty rights tied to lands that may not amount to Aboriginal title/rights to the exclusivepossession of the lands. [I have already cited the reasoning of Lamer C.J.C. on this point inDelgamuukw at paragraph 176.](2) Are Traditional Harvesting Rights Under the Treaty at the Core of the Federal s. 91(24)Power?[1513] Counsel for Ontario submitted the doctrine of inter-jurisdictional immunity is restrictedin its application to narrow residual areas that are critical to give effect to a limited number of