Keewatin v. Minister of Natural Resources

Part 15. The Effect of the Answers to Questions One and Two 29215. THE EFFECT OF THE ANSWERS TO QUESTIONS ONE AND TWO[1568] Counsel for Ontario submitted in argument that to answer the questions as this Court hasdone would "be contrary to balanced, cooperative federalism," "be inconsistent with Ontario'sproprietary jurisdiction under s. 109, "dramatically change the balance of Canadian federalism asit applies in the Keewatin Lands and has been so applied for over a century;" "represent amarked, massive and unwarranted incursion into provincial proprietary and legislativejurisdiction" and "exclude Ontario from the bargaining table." He urged this Court to giveOntario "sufficient scope to fulfil its Constitutional obligations, exercise its Constitutional rights,and be at the table in any discussion affecting its interests."[1569] In my view, the answers to Questions One and Two will not result in Ontario beingexcluded from the bargaining table. They will result in Ontario being required to respect theHarvesting Rights Clause in the Treaty as found by this Court as mutually intended by the partiesto the Treaty.2011 ONSC 4801 (CanLII)[1570] Citing Mikisew, Ontario agrees that under the Honour of the Crown, it is already requiredto consult with the Ojibway whenever it is contemplating forestry uses that may adversely affectHarvesting Rights. [I have earlier commented on the applicability of the Mikisew standard here.]Although I have held that Ontario cannot access the "taking up" clause under the Treaty, Ontariocan exercise its Constitutional powers under s. 109 to authorize land uses that do notsignificantly interfere with Treaty Harvesting Rights. Its right to patent and license land up to thepoint of significant interference involves a concomitant duty to assess in advance the impacts onTreaty Harvesting Rights of any activities it is being asked to patent or license.[1571] These Answers to Questions One and Two do not "deprive Ontario of important rightsthat were part of the Confederation bargain." Since Confederation, s. 109 rights have beensubject to interests other than interests of the province in the same. They have been subject tointerference by valid federal legislation. They do not put Ontario behind "the Constitutionalbaseline" but at it, just as the Treaty Commissioners intended. In answering Questions One andTwo, this Court has not determined that the activities of Ontario that precipitated this litigationdo or did amount to prima facie infringement of Treaty Harvesting Rights. It has answered thequestions it was ordered to answer in order to focus the issues and the evidence to be calledduring the next stage of these proceedings.[1572] Whether or not the activities Ontario was purporting to authorize would significantlyinterfere with the Treaty Harvesting Rights has not been directly addressed in the evidencebefore this Court to date. Evidence must be adduced going beyond the fact that there was Euro-Canadian activity in the Keewatin Lands, and addressing the impact of that activity on TreatyHarvesting Rights.[1573] The next stage of this litigation will involve a complicated impact assessment. Duringcross-examination on January 18, 2010, Chartrand explained at pp. 56-69 the myriad