Keewatin v. Minister of Natural Resources

Part 16. The Honour of the Crown 300[1619] I recognized on the one hand that every litigant should be able to put its best footforward. On the other hand, I questioned whether the conduct of the Crown parties was gearedsufficiently to complying with recent case law emphasizing the need to affirm and recognizeTreaty Rights, regard Treaty promises as "sacred covenants," give treaties a broad and liberalinterpretation and bear in mind the perspective of the Aboriginal signatories.[1620] I grappled with how governments can be expected to promote reconciliation, yet test thelimits of their liability in the same way as other litigants are entitled to do.[1621] My inquiries about Honour of the Crown duties canvassed with counsel during argumentwere not a factor in my fact-finding process. My factual determinations herein were made afterreviewing, comparing and analyzing all of the evidence and without regard to considerationsinvolving the Honour of the Crown.[1622] Had I found the facts as the governments urged me to find them, they could havesupported the interpretation of the Treaty that the governments were seeking.2011 ONSC 4801 (CanLII)[1623] The governments have been afforded the opportunity to present a version of the factswhich, if accepted, could have supported the legal conclusions they were asking this Court toreach.[1624] That being said, I have now rejected much of the evidence on mutual intention andunderstanding relied upon by the governments in support of their narrow interpretation of theHarvesting Clause.[1625] On the facts as I have found them, I am of the view it would violate the Honour of theCrown were Ontario to now continue to ignore the process clause that I found was deliberatelyinserted by the Commissioners to protect Treaty Harvesting Rights. Having been unsuccessful, Iam firmly of the view that they should now, to use the words of Binnie J. in Mikisew atparagraph 63, "get on with performance."[1626] The Honour of the Crown requires not only a fulfillment of Constitutional responsibilitiesand Treaty obligations, but also genuine openness and commitment to achieving reconciliation.