Keewatin v. Minister of Natural Resources

Part 16. The Honour of the Crown 297...25 Put simply, Canada's Aboriginal peoples were here when Europeans came, and were neverconquered ... the honour of the Crown requires that rights be determined, recognized and respected....27 The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests....32 ... Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowingfrom rights guaranteed by s. 35(1) of the Constitution Act, 1982. This process of reconciliation flowsfrom the Crown's duty of honourable dealing toward Aboriginal peoples, which arises in turn fromthe Crown's assertion of sovereignty over an Aboriginal people and de facto control of land andresources that were formerly in the control of that people. As stated in Mitchell v. M.N.R. at para. 9,"[w]ith this assertion [sovereignty] arose an obligation to treat Aboriginal peoples fairly andhonourably, and to protect them from exploitation" [Emphasis added by McLachlin C.J.C.].[1594] On the same day as Haida Nation was released, McLachlin C.J.C.'s reasons in Taku Riverwere also released. In that case, she characterized a province's submission that it only had a dutyof fair dealing before the determination of litigation as an impoverished view of the Honour ofthe Crown and all that it implies.2011 ONSC 4801 (CanLII)[1595] Last autumn, the Supreme Court also released Beckman. Deschamps J. made thefollowing observation about the relationship between treaties and the Honour of the Crown atpara. 106:For the treaty to have legal value, its force must be such that neither of the parties can disregard it.[1596] Since 1982, the Courts have consistently emphasized the legal and enforceable nature oftreaty rights when interpreting the will of Parliament in enacting s. 35.[1597] Since 1982, the Supreme Court of Canada has repeatedly referred to the Honour of theCrown in iterating and reiterating that treaties are solemn, sacred and legally enforceablecovenants. It has emphasized that treaty promises were not made out of simple Crownbenevolence, but as consideration for benefits it received. [See the survey of Professor LeonardRotman in "Marshalling the Principles from the Marshall Morass" (2000) 23 Dalhousie L.J. 5 at24-29.][1598] From the beginning of opening arguments until the end of the case, counsel for Ontariochanted the phrase 'Honour of the Crown' almost like a mantra, as if the reassuring cadence of itsrepetition would salve any concerns this Court might otherwise have about its failure to honourTreaty Rights in the past.[1599] Counsel for the governments repeatedly assured this Court that they are aware of theirduties to uphold the Honour of the Crown and that they can be expected to respect the Treatypromises. Post Haida Nation and Mikisew, Ontario acknowledges that they are legally obligatedto respect Treaty Rights under the doctrine of the Honour of the Crown.[1600] However, Ontario's present assurances came with a significant caveat. Ontario wants tohonour the Treaty promise as Ontario narrowly interprets it.