Keewatin v. Minister of Natural Resources

Part 14. The Answer to Question Two 285Conclusions1. Is Division of Powers Analysis Appropriate Here? Is Ontario Unconstrained by theDivision of Powers? Are Treaty Rights Protected only by s. 35 and the Honour of theCrown?[1523] I have earlier given reasons for rejecting the submissions of Ontario that St. Catherine'sMilling stands for the proposition that after a valid surrender, Canada has no further s. 91(24)jurisdiction and also for rejecting Canada's submission that Smith stands for the sameproposition.[1524] In St. Catherine's Milling, Canada asserted a proprietary interest in the land, based uponthe theory that the Treaty 3 surrender had conveyed legal title from the Treaty 3 Ojibway to thefederal government. The JCPC rejected Canada's arguments and held that Ontario, not Canada,had proprietary rights in lands in Ontario under s. 109. At issue were ownership rights, notHarvesting Rights.2011 ONSC 4801 (CanLII)[1525] In my view, a solid evidentiary basis exists in this case upon which I have concluded thatCanada's founding fathers, centralists and provincial autonomists alike, and later Morris in 1873,understood Canada could act under s. 91(24) to protect the Harvesting Rights of its wards "theIndians," and that in so doing Canada could adversely affect provincial proprietary rights andthat s. 109 rights could be limited by Treaty Harvesting Rights reserved to the Indians under theTreaty by Canada exercising its s. 91(24) powers.[1526] I have already opined that the JCPC did not conclude in either St. Catherine's Milling orSeybold that the title was free and clear of any Indian interest, but that it was free and clear ofany interest except the harvesting interest mentioned in the Treaty. Canada's s. 91(24) interestwas continuing. I have noted that at the end of the judgment in St. Catherine's Milling, LordWatson specifically reserved judgment with respect to "questions that may be behind the right todetermine to what extent, and at what periods, the disputed territory, over which the Indians stillexercise their avocations of hunting and fishing, is to be taken up for settlement or otherpurposes …" [Emphasis added.][1527] Counsel for Ontario submitted that when exercising its proprietary rights and not subjectto the division of powers, Ontario has powers akin to those of a fee simple owner. He citedHogg, Constitutional Law of Canada, supra, at para 29.3, as follows:29.3 … The federal and provincial governments have full executive powers over their respectivepublic properties. It is neither necessary nor accurate to invoke the royal prerogative to explain theCrown's power over its property. As a legal person, the Crown in right of Canada or the Crown inright of a province has the power to do anything that other legal persons (individuals or corporations)can do. Thus, unless there are legislative or constitutional restrictions [footnote 11] applicable to apiece of public property, it may be sold, mortgaged, leased, licensed or managed at the pleasure of theresponsible government, and without the necessity of legislation.[Emphasis added.][1528] I have already noted the content of footnote 11, as follows: