Keewatin v. Minister of Natural Resources

Part 15. The Effect of the Answers to Questions One and Two 295[1586] Post-1982, it is clear that the First Nations should be involved in matters that vitallyaffect them. I fail to see how allowing them to seek benefits from activities that would otherwisesignificantly adversely affect their livelihood, would undermine or interfere with balanced,cooperative federalism.[1587] In my view, requiring prima face infringement/significant adverse impact before thedoctrine of inter-jurisdictional immunity and s. 88 apply, and tolerating insignificantinterferences with Harvesting Rights, strikes a balance among Ontario's s. 109 proprietaryinterest, the Treaty Rights of the Plaintiffs and Canada's power to make and enforce TreatyRights and to legislate qua Indians. It serves to reconcile provincial powers over Ontario assetsqua assets with federal powers over Indians qua Indians.[1588] Because it cannot access the Treaty or pass legislation to infringe Harvesting Rights,Ontario does not have the power to significantly adversely impact the Treaty Harvesting Rightsif, after consulting, the effect of its actions would be to significantly adversely impact HarvestingRights. Under the Treaty, before that could happen, Canada, the historical guardian of Indiansand their lands under the Constitution, would have to authorize that adverse impact/Treatyinfringement and satisfy the Sparrow test.2011 ONSC 4801 (CanLII)[1589] Ontario is therefore restricted either to acting within the confines of the Treaty byavoiding significantly affecting the right (possibly by agreeing to mitigation measures with theOjibway) or turning to Canada to enable it to significantly affect the right without the consent ofthe Ojibway.16. THE HONOUR OF THE CROWN[1590] In 1982, a solemn commitment was made to recognize and affirm treaty rights (seeSparrow at pages 1108-1109.) Section 35 of the Constitution Act 1982 Constitutionalized theprotection of treaty rights. Treaties define Aboriginal rights guaranteed by s. 35. McLachlinC.J.C. said at paragraph 20 of Haida Nation that s. 35 represents a promise of rights recognition.[1591] Since 1982, the Supreme Court of Canada has made it clearer and clearer that, in theprocess of reconciliation, Canadian governments must respect treaty rights, interpret ancienttreaties liberally and in context, having regard to the manner in which they would have beenunderstood by the Indians. Words imposing limitations on treaty rights should be narrowlyconstrued. Governments must uphold the highest standards in treaty implementation, animportant element of the "rededication" of the commitment to Canada's Aboriginal people.[1592] In Sparrow, after governments submitted that an Aboriginal right to fish had beenextinguished prior to 1982 as a result of progressive restriction and detailed regulation, DicksonC.J.C. and LaForest J. emphasized that s. 35(1) of the Constitution Act, 1982 recognizes andaffirms treaty rights and pointedly referred to Canada's past failures to uphold the Honour of theCrown at pp. 1103-1105; 1108:... there can be no doubt that over the years the rights of the Indians were often honoured in thebreach ... As MacDonald J. stated in Pasco v. Canadian National Railway Co., [1986] 1 C.N.L.R. 35