Keewatin v. Minister of Natural Resources

Part 14. The Answer to Question Two 286An example of constitutional restriction would be lands reserved for the Indians, which althoughowned by the province, are subject to federal legislative power under s. 91(24).[1529] I have also noted that paragraph 29.4 of the same book on Legislative power andProprietary Interests, contains the following:Some of the implications of the distinction between legislative power and proprietary interests areless obvious. The exercise of legislative power over, say, fisheries, may severely limit the owner'senjoyment of the property…such a law is valid notwithstanding its incidental effects on proprietaryrights… the provincial power over property is limited by the existence of federal powers.[Emphasis added.][1530] I have rejected the submission of Ontario that Treaty Harvesting Rights cannot adverselyaffect provincial proprietary rights.[1531] I am of the view that had Brooks Bidlake been decided today, the Court would likelyhave scrutinized the provision involving Japanese and Chinese workers, and used an interjurisdictionalimmunity analysis and would have found that the doctrine did not apply because itwas not at the core of the citizenship power.2011 ONSC 4801 (CanLII)[1532] Were Morgan being decided today, the Court would likely use an inter-jurisdictionalimmunity analysis. It would consider whether the provincial law limiting ownership of certaintypes of property in P.E.I. goes to the core of the federal citizenship power.[1533] In my view the Smylie case is not helpful to this Court in deciding the issues here.Because it involved the federal trade and commerce power and not a federal "person, place orthing" power, the doctrine of inter-jurisdictional immunity would not apply. Under s. 109, thelicensee had no prior right to sell timber across the border, and therefore there was "no interestother than the interest of the province in the same," such as the Treaty Harvesting Rights here.[1534] I note that LaForest wrote at p. 170: "In Smylie, Brooks Bidlake and Fisheries, we sawthat provincial legislation respecting its property may incidentally affect matters falling within s.91 of the British North America Act. But such legislation … cannot invade the federal sphere."[Emphasis added.][1535] I do not accept the submissions of counsel for Ontario that Ontario is free to exercise itsproprietary rights like any other landowner.[1536] At p. 179, LaForest wrote: "Reasons have already been advanced in support of the viewthat the right to hunt and fish is an interest preserved by s. 109."[1537] I have not accepted Ontario's submission that Ontario is not subject to Treaty Rightsunder s. 109. Pre-existing rights protected under s. 109 have always included Treaty HarvestingRights. Ontario is now ignoring that Harvesting Rights are an interest "other than that of theprovince in the same" pursuant to s. 109.[1538] In St. Catherine's Milling at p. 52, the JCPC did not conclude that Ontario's s. 109 rightswere free of Harvesting Rights.