Keewatin v. Minister of Natural Resources

Part 15. The Effect of the Answers to Questions One and Two 293considerations that will need to be taken into account. These include but may not be limited to:the practical effect of the proposed land use on Harvesting Rights; the consultation, or lackthereof, between Ontario and the Ojibway; the ability of the Ojibway and Ontario tosimultaneously use the land; the scope of the area affected; how the use would affect particularfamilies; the length of time involved in Ontario's proposed use of the land; the scale of the work;whether accommodations and benefits to the Ojibway are built in; where within Keewatin, theuse is taking place; the depletion caused to resources, in particular regions within Keewatin, andthe area as a whole. I have repeatedly emphasized herein that the Ojibway understood in 1873they would derive benefits from sharing their resources with the Euro-Canadians, includingwages and other advantages that might alleviate or offset otherwise detrimental effects.[1574] Throughout these Reasons, I have recognized the uniqueness of the circumstances underwhich Treaty 3 was negotiated. Just as the circumstances in Keewatin were extraordinary whenthe Treaty was made, they continue to differ greatly from those in other, more developed areastoday. Keewatin remains largely virgin territory, most of which continues to be held as Crownlands.2011 ONSC 4801 (CanLII)[1575] The fact that Ontario has been exercising its s. 109 jurisdiction for many years inKeewatin without litigation in my view speaks volumes, not (as asserted by Ontario) aboutOjibway agreement in 1873 to allow progressive extinguishment of their Harvesting Rights, but(as asserted by the Plaintiffs) about the unusual characteristics of the Treaty 3 area and the highlevel of compatibility between Harvesting Rights and Euro-Canadian land uses in Keewatin.From the largely undeveloped state of Keewatin today, it appears that adequate consultation andaccommodation would go a long way towards ensuring continuing compatibility betweenHarvesting Rights and Euro-Canadian uses. Just as the circumstances of Treaty 3 were unusualin 1873 and provided a unique rationale for the extraordinary promises made, it appears that thecircumstances in Keewatin today continue to provide a unique opportunity for cooperation andreconciliation.[1576] Ontario by and large already has the ability to control the way in which future forestrydevelopment will occur and to pursue the objective of promoting compatibility and/or preventingor minimizing interference with Treaty 3 Harvesting Rights. In my view, pursuing that objectivecan only further reconciliation.[1577] Counsel for Ontario agreed that it is already required to consult with the Treaty 3Ojibway with respect to how and where cutting will be allowed. He advised that forestrylicenses are hundreds of pages thick. They contain very detailed plans respecting how much andwhen cutting will be allowed, what trees will be left, what replanting must be done, etc. Ontarioalready does have the power to require its licensees to take steps to avoid or minimizeinterference with Harvesting Rights. It already has the power to scope its licensing instruments toensure that Harvesting promises in the Treaty are honoured.[1578] The April 26, 2010 transcript contains the following at p. 24: