Keewatin v. Minister of Natural Resources

Part 15. The Effect of the Answers to Questions One and Two 294MR. STEPHENSON: My point is that there are tools available, you know, to the Ontario governmentin order to honour its treaty obligations and make sure that some recipient of an instrument withrespect to Crown land [has] not an ability to validly and unduly entrench upon harvesting rights.[1579] While Harvesting Rights on lands where uses inconsistent with their Harvesting Rightshave been authorized have not been legally extinguished, the practical effect on the ground of thefinding that the Ojibway and Canada did not agree that the geographic area where the Ojibwaycould hunt could be decreased as land use was authorized without the authorization of Canadamay not be as significant as might appear at first blush. The Supreme Court of Canada has heldthat all treaties must be construed so as to include a prohibition against unsafe hunting. Fobisterand counsel for the Plaintiffs both acknowledged that the Plaintiffs are committed to huntingsafely.[1580] These answers to Questions One and Two do not apply in the more developed portions ofthe Treaty 3 lands that constituted the Disputed Territory. They only apply to the Treaty 3 landsin Keewatin because Keewatin was and is unaffected by the 1891 Legislation.2011 ONSC 4801 (CanLII)[1581] Even today in Keewatin, it appears that the Plaintiffs' traditional harvesting activities arelargely compatible with Euro-Canadian activities. They do not contend that all or even mostEuro-Canadian land uses in Keewatin are or will be incompatible with Treaty 3 HarvestingRights.[1582] An infringement of Treaty Harvesting Rights will be found only if the activity isunreasonable or arbitrary and if it places a significant burden on their exercise or otherwisesignificantly interferes with them. Deschamps and Abella JJ. for the majority of the Court inMorris wrote at para 50:Insignificant interference with a treaty right will not engage the protection afforded by s. 88 of theIndian Act. This approach is supported both by Côté and by Nikal, where Cory J. rejected the ideathat "anything which affects or interferes with the exercise of those rights, no matter howinsignificant, constitutes a prima facie infringement" (para. 91 (emphasis added [by Deschamps andAbella JJ.])). Therefore, provincial laws or regulations that place a modest burden on a personexercising a treaty right or that interfere in an insignificant way with the exercise of that right do notinfringe the right.(See also Côté at paras. 77-80 and Nikal, at paras. 98-102.)[1583] Were Ontario's laws, regulations or licenses held to place only a modest burden on theexercise of Treaty Harvesting Rights or were they held to interfere in an insignificant way withthe exercise of those Rights, they would not be constrained by inter-jurisdictional immunity.[1584] I have already noted that impact assessment must involve both positive and negativefactors. Potentially negative aspects of particular Euro-Canadian land uses can be addressed byensuring that the Ojibway will benefit from the economic activity being proposed.[1585] Although I have held that Ontario cannot unilaterally legislate or act in a manner tosignificantly interfere with hunting and fishing rights in Keewatin without authorization fromCanada, there is nothing preventing it from conferring and cooperating with the Treaty 3Ojibway and with Canada.