Keewatin v. Minister of Natural Resources

Part 14. The Answer to Question Two 2903. Does Inter-Jurisdictional Immunity Apply?[1556] While many of the decided cases on inter-jurisdictional immunity have involvedprovincial attempts to directly regulate Treaty Rights, I am of the view that the doctrine appliesin any situation where there is prima facie infringement of a core federal interest, whether director indirect. In my view, even an indirect interference with Treaty Harvesting Rights couldsignificantly adversely affect those rights/constitute an infringement of those rights.[1557] Indirect interference could sufficiently adversely affect the core of the federal jurisdictionfor inter-jurisdictional immunity to apply. See Canadian Western. However, whether the indirecteffects/impacts of the provincial activities/legislation under consideration here are sufficientlysignificant to constitute infringement is an issue to be determined later in these proceedings.4. Does s. 88 of the Indian Act Apply?2011 ONSC 4801 (CanLII)[1558] If a provincial law is found to impair "Indianness," it may nevertheless be held to apply ifallowed to do so by s. 88 of the Indian Act, which reads as follows:88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general applicationfrom time to time in force in any province are applicable to and in respect of Indians in the province,except to the extent that those laws are inconsistent with this Act or any order, rule, regulation or bylawmade thereunder, and except to the extent that those laws make provision for any matter forwhich provision is made by or under this Act.[Emphasis added.][1559] Assuming that Ontario's legislation or acts adversely interfered with Harvesting Rights soas to constitute a prima facie infringement of Treaty 3 Harvesting Rights, could it or they besaved by the operation of s. 88 of the Indian Act?[1560] In Morris, Deschamps and Abella JJ. wrote at para. 45:[45] But as the opening words of this provision demonstrate, Parliament has expressly declined to uses. 88 to incorporate provincial laws where the effect would be to infringe treaty rights. And this Courtheld in Côté at para. 86, that one of the purposes of s. 88 is to accord "federal statutory protection toAboriginal treaty rights". Thus, on its face, s. 88 cannot be used to incorporate into federal lawprovincial laws that conflict with the terms of any treaty.[Emphasis added.][1561] The dissenting minority took the same position on the effect of s. 88 as follows:96 The Court clarified the effect of s. 88 of the Indian Act in Dick v. The Queen, [1985] 2 S.C.R.309. The Court noted that for the purposes of s. 88 there are two categories of provincial laws: (1)laws which can be applied to Indians without touching their Indianness; and (2) laws which cannotapply to Indians without regulating them qua Indians (pp. 326-27). The first category of provinciallaws applies to Indians without any constitutional difficulty. The second category cannot apply toIndians by reason of the doctrine of inter-jurisdictional immunity. It is to this second category ofprovincial legislation that s. 88 of the Indian Act is directed. Thus, s. 88 incorporates provincial lawsof general application that are otherwise constitutionally inapplicable to Indians — laws that areprecluded from applying to Indians by the doctrine of inter-jurisdictional immunity because theyaffect core Indianness, a matter under federal jurisdiction.