Keewatin v. Minister of Natural Resources

Part 16. The Honour of the Crown 298[1601] While acknowledging that it must act honourably, in an attempt to support aninterpretation having the effect of limiting Treaty Harvesting Rights, Ontario sought to benefit(to the disadvantage of the Ojibway) from reliance on the technical concept of indivisibility ofthe Crown.[1602] I have earlier observed, based on its submissions in earlier litigation including but notlimited to the Annuities Case, and statements made by representatives of Ontario quoted in theevidence, that Ontario's position in this litigation that it is bound to respect Treaty Rights isnewfound, not long held. It does not reflect the stance taken by Ontario in the years moreproximate to the time the Treaty was made, and for at least 100 years thereafter. It thereforecannot fairly be said to reflect Ontario's intention at the time the Treaty was made (not thatOntario claimed to be a party to the Treaty in 1873.) Parties are free to change their legalpositions but the relevant time for the determination of intention here is 1873.[1603] Ontario's approach to this litigation, while pleasantly civil, was strongly adversarial.Always focusing on its own proprietary rights, it downplayed the plain and clear reference in theHarvesting Clause to Canada. It characterized as a "mistake" what I have found to be Morris'deliberate attempt to protect the Harvesting Rights of the Ojibway (by referring to Canada soCanada could manage the situation/ensure its promises were kept, in the event Canada lost theBoundary Dispute.)2011 ONSC 4801 (CanLII)[1604] Here, Ontario was asking this Court to interpret the Harvesting Clause in a mannercontrary to the plain meaning of the Treaty words, to benefit itself by expanding its s. 109 rightswhile restricting Ojibway rights validly conferred under s. 91(24).[1605] Ontario alleged a "mutual" intention that its own experts, including Chartrand, virtuallyconceded on cross examination did not exist, by agreeing that the Commissioners, acting onbehalf of Canada, intended the reference to Canada in the Harvesting Clause to be to Canadaand only to Canada, i.e., not to the Queen or the Crown.[1606] Ontario attempted to use traditional Euro-Canadian common law property principles tosupport the relief it was seeking, despite the evidence of Chartrand called by Ontario thatOjibway concepts were vastly different (e.g., they did not have a concept of buying and sellingland.)[1607] In this litigation, counsel for Ontario continued to rely on an argument that the policy ofthe Canadian government was to agriculturalize the Indians, yet its actions circa 1914-1915largely deprived the Ojibway of the opportunity to benefit from agriculture and forced them torely more on traditional harvesting.[1608] On the one hand, Ontario insisted on being at the table so that it can fulfill itsConstitutional obligations. On the other, by insisting it has exclusive rights over lands in Ontario,it sought to exclude Canada and by extension the Ojibway, from enjoying the same privilege.[Had Ontario been held to have the right to "take up" lands in Ontario under the Treaty, theCourts would have had no jurisdiction to protect Harvesting Rights in respect of those lands.]