Keewatin v. Minister of Natural Resources

Part 14. The Answer to Question Two 288176 I conclude with two remarks. First, even if the point were not settled, I would have come to thesame conclusion. The judges in the court below noted that separating federal jurisdiction over Indiansfrom jurisdiction over their lands would have a most unfortunate result -- the government vested withprimary constitutional responsibility for securing the welfare of Canada's Aboriginal peoples wouldfind itself unable to safeguard one of the most central of native interests — their interest in theirlands. Second, although the submissions of the parties and my analysis have focussed on the questionof jurisdiction over Aboriginal title, in my opinion, the same reasoning applies to jurisdiction overany Aboriginal right which relates to land. As I explained earlier, Adams clearly establishes thatAboriginal rights may be tied to land but nevertheless fall short of title. Those relationships with theland, however, may be equally fundamental to Aboriginal peoples and, for the same reason thatjurisdiction over Aboriginal title must vest with the federal government, so too must the power tolegislate in relation to other Aboriginal rights in relation to land.[Emphasis added.]Delgamuukw at para. 176; Adams at para, 30; Cote at para. 39.[1547] In short, Ontario is constrained by the division of powers. Ontario is not free to exerciseits proprietary rights without regard to the division of powers. Canada, using its s. 91(24)jurisdiction, can make treaty promises that may affect Ontario's proprietary interests, includingpromising Treaty Harvesting Rights.2011 ONSC 4801 (CanLII)2. If Ontario is Constrained by the Division of Powers, Does Inter-Jurisdictional ImmunityApply?[1548] Delgamuukw made it clear, among other things, that if not allowed to do so under theTreaty itself, Ontario cannot extinguish Treaty Rights at the core of federal jurisdiction. LamerC.J.C. noted at paras. 177 that "s. 91(24) protects a 'core' of Indianness from provincial intrusion,through the doctrine of inter-jurisdictional immunity" and at para. 178 that "the core ofIndianness encompasses the … practices, customs and traditions which [may or may not be] tiedto land…Provincial governments are prevented from legislating in relation to both types ofAboriginal rights."[1549] I accept the submission of counsel for the Plaintiffs that inter-jurisdictional immunityapplies here.[1550] While the Supreme Court of Canada has recently limited the applicability of the doctrineof inter-jurisdictional immunity in Canadian Western because of the fundamental federalresponsibility for a thing or person (here Indians), the Court specifically reaffirmed that interjurisdictionalimmunity continues to apply, in the case of s. 91(24), to protect the core ofIndianness. Binnie and LeBel JJ. wrote:61 In some cases ... the Court has found a vital or essential federal interest to justify federalexclusivity because of the special position of Aboriginal peoples in Canadian society or, as GonthierJ. put it in the National Battlefields Commission case mentioned earlier, "the fundamental federalresponsibility for a thing or person" (p. 853). Thus, in Natural Parents, Laskin C.J. held theprovincial Adoption Act to be inapplicable to Indian children on a reserve because to compel thesurrender of Indian children to non-Indian parents "would be to touch 'Indianness', to strike at arelationship integral to a matter outside of provincial competence" (pp. 760-61). Similarly, inDerrickson, the Court held that the provisions of the British Columbia Family Relations Act dealingwith the division of family property were not applicable to lands reserved for Indians because "[t]heright to possession of lands on an Indian reserve is manifestly of the very essence of the federal