Keewatin v. Minister of Natural Resources

Part 16. The Honour of the Crown 30117. THE NEXT STAGE OF THIS LITIGATION[1627] During the next stage, counsel will call evidence with respect to whether the forestryactivity Ontario is proposing to authorize is nevertheless allowable because it does not/will notsignificantly interfere with Treaty Harvesting Rights.[1628] As already noted, the Plaintiffs and the Defendants take differing positions on the impacton harvesting of the forestry activities that Ontario is being asked to license. The Plaintiffscontend that they would significantly interfere with Harvesting Rights under the Treaty. Ontariosubmits they would not.[1629] It will be necessary for the Court to make the complex type of impact assessment notundertaken during this stage of the trial. The Court will consider the types of factorsacknowledged by Chartrand, Von Gernet and Lovisek to be appropriate in making such anassessment.2011 ONSC 4801 (CanLII)[1630] If the forestry activities under consideration will not significantly interfere with OjibwayHarvesting Rights, the federal s. 91(24) interest will not engage, and Ontario will be free tolicence such activities without federal authorization.[1631] If they will significantly interfere, Canada must be involved in authorizing the proposedactivity. I emphasize that it will be necessary to assess not only the detriments but also thebenefits that would accrue to the Ojibway as a result of any proposed forestry activity. TheOjibway agreed to share the use of the resources so long as they also shared the benefits arisingout of those uses. Therefore, if proposed forestry activities would benefit the Ojibway, theywould be less likely to be held in breach of the Treaty.18. FINAL OBSERVATIONS[1632] Because I recognize that this judgment is lengthy, while re-iterating that I have felt itnecessary to detail my Reasons as I have, the following summarizes the heart of the matter:General Concern About Framing of the Issues[1633] Ontario has framed the issues here in terms of its own property rights. The Plaintiffs arenot disputing that Ontario has title to lands in Ontario. However, Ontario's argument understatesthe importance of Harvesting Rights to the Ojibway and virtually ignores intersecting s. 91(24)and s. 109 jurisdictions. Harvesting Rights were crucial to the Ojibway in 1873 and continue tobe in 2011.Findings of Fact and Law re 1873-1912/Answers to Questions One and Two[1634] Canada needed the Treaty more than the Ojibway did in 1873 in order to build the CPRrailway and secure the Dawson Route. Both were vitally necessary to the overall development of