Keewatin v. Minister of Natural Resources

Part 1. Introduction 2government. It positions itself as any other property owner, entitled to enjoy the benefits of itslands. While it acknowledges it must respect Treaty Harvesting Rights, it interprets themnarrowly, asserting that as owner it can unilaterally restrict or extinguish them under the Treatyby "taking up" lands/authorizing uses visibly incompatible with them.[9] Ontario posits that the present difficulties in interpreting the Harvesting Clause stem fromthe Treaty Commissioners' mistaken assumption in 1873 that the Treaty 3 lands were and wouldalways be owned by Canada. That assumption was proven incorrect in 1888, when the JudicialCommittee of the Privy Council ("JCPC") in St. Catherine's Milling determined that Ontarioowned the southerly 2/3 of the Treaty 3 lands (the "Disputed Territory"), and in and after 1912when the northerly 1/3 of the Treaty 3 lands (the "Keewatin Lands") were annexed to Ontario.Ontario asserts that as owner, only Ontario can "take up" its own lands and exercise proprietaryrights in respect thereof.[10] Ontario warns this Court that to hold otherwise would represent a "massive incursion"upon its exclusive proprietary rights over lands in Ontario.2011 ONSC 4801 (CanLII)[11] In essence, Ontario asks this Court to disregard the reference in the Harvesting Clause to"taking up by the Dominion," and to interpret it as if it read "taking up" [which it submits means"authorizing land uses" by the owner of the land, i.e., by Ontario.]The Ojibway Position[12] For the Ojibway, this litigation is all about Harvesting Rights and the meaning (in bothsenses of the word) to be given to the Treaty: (1) how should it be interpreted? (2) will theirTreaty Harvesting Rights be recognized and affirmed by Canadian Courts, or will Ontario beallowed to disregard and violate the promises Canada made to induce them to enter into theTreaty? Will the Courts ignore the plain wording of the Treaty deliberately inserted by thefederally appointed Commissioners to protect their Harvesting Rights?[13] The Plaintiffs submit that the reference in the Harvesting Clause to the Dominion is areference to the federal government, the party that negotiated the Treaty with them, the branch ofgovernment with s. 91(24) jurisdiction to make treaties and enforce treaty rights.[14] The Plaintiffs ask this Court to require the Defendants not only to honour but also toenforce the Harvesting Rights promise, to give effect to the plain meaning of the HarvestingClause (i.e., to hold that "taking up" by the Dominion of Canada means taking up by Canada andthat "taking up by any of the subjects thereof duly authorized therefor by the said Government"means that "taking up" by anyone other than the Dominion must be authorized by the Dominionof Canada), to require Ontario and Canada to act honourably in interpreting and enforcing theTreaty, and to recognize and affirm their Treaty Rights under s. 35 of the Constitution.[15] The Plaintiffs submit that this Court should not allow Ontario and Canada to ignore/readout a critical promise the Commissioners deliberately made, a crucial consideration that theOjibway imposed as a pre-condition to entering into the Treaty. They would not have made theTreaty had the promises of continued harvesting not been made.