Keewatin v. Minister of Natural Resources

Part 14. The Answer to Question Two 283federal heads of power. Care must be taken to distinguish between the scope and the core of thes. 91(24) jurisdiction over Indians. With respect to scope, the federal government can legislateon any subject matter in relation to Indians (subject to the Constitutional justification protectiongranted by s. 35). Section 91(24) re: "Indians" covers subject matters relating to Aboriginalidentity and activities, often characterized as "Indianness" (or regulating Indians qua Indians, orIndians in their Indianness.) The core of Indianness under s. 91(24) is narrower, related to centralelements of Indian identity.[1514] While counsel for Ontario conceded that the core of the Indians' branch of s. 91(24)protects some aspects of Treaty Rights, including Treaty Harvesting Rights, from provincialimpairment, he submitted that not all aspects of Treaty Harvesting Rights necessarily comewithin the core. The majority in Morris, for example, left open the question of provincialConstitutional capacity to interfere with commercial Treaty Harvesting Rights. Questions ofpublic safety and resource conservation also leave scope for provincial laws. Geographicrestrictions on where Treaty Harvesting Rights can be exercised at any given point in time,resulting from the effect of provincial proprietary and related legislative jurisdiction, do notimpair the core of s. 91(24). Even though Ontario cannot access the "taking up" clause in theTreaty, the substantive bargain of the Treaty was that lands could be developed and TreatyRights could be geographically restricted.2011 ONSC 4801 (CanLII)[1515] Counsel for the Plaintiffs submitted that while jurisdictional overlap will generally notresult in a provincial law being found to be ineffective, in certain circumstances, including whenthe doctrine of inter-jurisdictional immunity applies, it will. The Supreme Court of Canada hasmade it clear that with regard to "Indians and Lands reserved for the Indians," there is anunassailable core of federal jurisdiction immune from impairment by the operation of provinciallaws, even if those laws are of general application.[1516] Counsel for the Plaintiffs submitted that the substantive bargain was not as alleged byOntario. In making the submission that the core was not affected and that the substantive bargainwas that lands could be developed by the generic government, including Ontario, and that TreatyRights could be geographically limited once that happened, Ontario is effectively urging thisCourt to ignore the mutual intention of the parties, the deliberate insertion of the process clauseby the Commissioners to protect Treaty Rights and the plain and ordinary meaning of theHarvesting Clause.(3) Does Inter-jurisdictional Immunity apply to Indirect Interferences?[1517] While conceding that the regulation of Treaty Harvesting Rights is within the exclusivejurisdiction of the federal government (subject to very narrow exceptions for safety andconservation), counsel for Ontario submitted that in passing the Crown Forests SustainabilityAct, Ontario was not directly regulating, nor proposing to directly regulate, Treaty HarvestingRights.[1518] Licensing of Crown lands for forestry purposes would only remotely and indirectly affectTreaty Harvesting Rights by limiting where those Rights can be exercised at a given point in