Keewatin v. Minister of Natural Resources

Part 14. The Answer to Question Two 289exclusive legislative power under s. 91(24) of the Constitution Act, 1867" (p. 296). In Paul v. Paul,[1986] 1 S.C.R. 306, our Court held that provincial family law could not govern disposition of thematrimonial home on a reserve. In these cases, what was at issue was relationships within Indianfamilies and reserve communities, matters that could be considered absolutely indispensable andessential to their cultural survival. [Emphasis added.][1551] I note that Mr. Penner, counsel for Canada, in argument on April 30, 2010 submitted thatpart of the protective component of s. 91(24) (as confirmed by Canadian Western) is interjurisdictionalimmunity and that during argument on May 3, 2010, counsel for Ontario concededthat generally speaking, Treaty Harvesting Rights do relate to Indianness and that Treaty huntingand fishing rights are at the core of the s. 91(24) jurisdiction.[1552] On the facts here, I have concluded that Treaty Harvesting Rights are at the core of thefederal s. 91(24) jurisdiction. For the purposes of this litigation, the Plaintiffs are not claimingthat they have ongoing Aboriginal title. [However, it seems clear that before the Treaty, theOjibway had Aboriginal title to all of the Treaty 3 lands. Before the Treaty was signed, theTreaty 3 Ojibway exercised exclusive control over the Treaty 3 territory and exercised theirHarvesting Rights. As I found on the facts, as LaForest noted in his book and the JCPC noted inSt. Catherine's and Seybold, Harvesting Rights were reserved to the Ojibway under the Treaty.]2011 ONSC 4801 (CanLII)[1553] Only the federal government, pursuant to its jurisdiction over Indians and consistent withthe Chief Justice's description of Harvesting Rights in Delgamuukw, has power over TreatyHarvesting Rights. Treaty Harvesting Rights are Constitutionally protected. They burden the useof the land under s. 109. In this case, based on my conclusions about the importance ofHarvesting Rights to the Treaty 3 Ojibway, I am strongly of the view that their traditionalhunting rights are at the core of the federal s. 91(24) jurisdiction/central to the Indianness of theTreaty 3 Ojibway and worthy of federal protection under the doctrine of inter-jurisdictionalimmunity.[1554] For all the reasons outlined elsewhere in these Reasons, I do not accept Ontario'ssubmission that the "substantive bargain" allowed Ontario to remove Treaty Rights by "takingup" lands. I have found that the "substantive bargain" was that the lands could not be developedin a manner that would significantly interfere with Harvesting Rights. Ontario's rights toauthorize uses of land were limited by the Treaty to authorizing uses of land that did notsignificantly interfere with Harvesting Rights. I have already held that only Canada could "takeup" lands under the Treaty/extinguish Treaty Rights. Treaty Harvesting Rights were intended byCanada and the Ojibway to be enforceable substantive rights to be protected, not to be interferedwith without the specific authorization of the Dominion of Canada. Although the Plaintiffs donot contest Canada's rights as defined by the Treaty, they do contest any right of Ontario underthe Treaty to remove or ignore the burden of the Harvesting Rights and I have so held inanswering Question One.[1555] As Treaty-protected Harvesting Rights are at the core of the federal government's s.91(24) jurisdiction, Ontario cannot interfere with them unless allowed to do so under s. 88 of theIndian Act.