Keewatin v. Minister of Natural Resources

Part 14. The Answer to Question Two 287[1539] In Seybold, Lord Davey for the JCPC affirmed that the surrender did not leave the federalgovernment without any s. 91(24) jurisdiction, at p. 79:… prior to the surrender Ontario had a proprietary interest in the land, under the provisions of s. 109of the British North America Act, 1867, subject to the burden of the Indian usufructuary title, andupon extinguishment of that title by the surrender the province acquired the full beneficial interest inthe land subject only to such qualified privilege of hunting and fishing as was reserved to theIndians in the treaty.[Emphasis added.][1540] Ontario's argument virtually ignored Morris and the statements of the Supreme Court ofCanada in Sparrow, Delgamuukw and Haida Nation among others concerning limitations on thescope of s. 109 powers, quoted earlier in these Reasons supporting the view that Ontario took itsproprietary interest subject to Treaty Rights. Its proprietary rights are subject to pre-existingHarvesting Rights, an interest other than that of the province in the same.[1541] I have already mentioned the reasons of Lamer C.J.C. in Delgamuukw at paragraph 175and the reasoning of the Court in Haida Nation at paragraphs 58 and 59.2011 ONSC 4801 (CanLII)[1542] I do not accept Ontario's submission that when exercising its proprietary rights, Ontario isnot subject to the division of powers. In Morris the Supreme Court of Canada held that s. 109rights are subject not only to s. 35 rights, but are also constrained by the exercise of federalpower under s. 91. Treaty Rights are protected by s. 91(24) as well as by s. 35 and the Honour ofthe Crown. Section 35 supplements Treaty Rights already otherwise protected under s. 109. Itdoes not adversely affect them. In Morris, the Supreme Court of Canada did not hold that s.92(13) of the Constitution Act merely confirms the provinces' jurisdiction to legislate in relationto their proprietary jurisdiction.[1543] I do not accept Ontario's submission that treaty protection should be limited to s. 35 andthe Honour of the Crown. As Lamer C.J.C. in Delgamuukw held at paras. 176-178, "to separatejurisdiction over Indians from jurisdiction over their lands" and from the jurisdiction over "otherAboriginal rights in relation to land" would create an injustice.[1544] The Supreme Court of Canada made it clear in Delgamuukw that s. 35 and the Honour ofthe Crown are not the only limitations on s. 109 proprietary rights. The doctrine of interjurisdictionalimmunity/division of powers can limit s. 109 powers as well.[1545] I do not accept the submissions of Ontario that Ontario can use its proprietary jurisdictionto partially extinguish Treaty Rights. Only Canada could extinguish Treaty Rights before 1982and only Canada could justifiably infringe Treaty Rights post-1982.[1546] I note that in Delgamuukw, where an NDP government in British Columbia hadwithdrawn a general extinguishment argument but was continuing to advance a partialextinguishment argument similar to the one being made by Ontario here (i.e., that using itsproprietary powers, British Columbia could make fee simple grants and thereby extinguishAboriginal title piece by piece.) Lamer C.J.C., after rejecting that contention at paragraph 175,added at paragraph 176: