Keewatin v. Minister of Natural Resources

Part 1. Introduction 11. INTRODUCTION[1] At issue here is the interpretation of a Harvesting Clause (the "Harvesting Clause") in atreaty (the "Treaty" or "Treaty 3") made in 1873 between Canada and the ancestors of thePlaintiffs including the following:…they, the said Indians, shall have the right to pursue their avocations of hunting and fishingthroughout the said tract surrendered as hereinbefore described … and saving and excepting suchtracts as may, from time to time, be required or taken up for settlement, mining, lumbering or otherpurposes by Her said Government of the Dominion of Canada, or by any of the subjects thereof, dulyauthorized therefor by the said Government.[2] On June 28, 2006, Spies J. ordered a trial of the following two issues:Question One:Does Her Majesty the Queen in Right of Ontario have the authority within that part of the landssubject to Treaty 3 that were added to Ontario in 1912, to exercise the right to "take up" tracts of landfor forestry, within the meaning of Treaty 3, so as to limit the rights of the Plaintiffs to hunt or fish asprovided for in Treaty 3?2011 ONSC 4801 (CanLII)Question TwoIf the answer to question/issue 1 is "no," does Ontario have the authority pursuant to the division ofpowers between Parliament and the legislatures under the Constitution Act, 1867 to justifiablyinfringe the rights of the Plaintiffs to hunt and fish as provided for in Treaty 3? [provided that thequestion of whether or not the particular statutes and statutory instruments at issue in this action infact justifiably infringe the treaty rights shall not be determined and shall be reserved for the trial ofthe rest of this proceeding.][Emphasis added.][3] The Plaintiffs are members of the Grassy Narrows First Nation, who entered intolitigation with Ontario after it issued licenses to the Defendant Abitibi-Consolidated Inc.("Abitibi") to clear cut forests on Crown lands in the Plaintiffs' trap line areas, allegedlysignificantly interfering with their Harvesting Rights under the Treaty.[4] "Harvesting Rights" encompasses the entirety of traditional resource harvesting activitiesin pursuit of the seasonal round.[5] "Treaty Rights" includes Harvesting Rights and all other rights granted under the Treaty.[6] Initially, the Plaintiffs moved to set aside the forestry licenses issued by Ontario.However, that application was turned into an action in which the present trial of the two issueswas ordered.[7] The answers to Questions One and Two will affect the issues to be determined in the nextphase of this litigation.Ontario's Position[8] Ontario apparently sees this case as a bulwark against encroachment of its Constitutionalright to manage and receive all revenues from its Crown lands without meddling by the federal