Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 91Confederation and on evolving concepts of federalism is relevant in considering Morris'understanding and intent in 1873, and in considering and interpreting the words he used when hedrafted Treaty 3.[411] Vipond gave evidence (February 24, 2010 at p. 30) that in 1873 Morris understood thefundamental division between the Queen in Right of a province and the Queen in Right of thefederal government.Morris' View of Canada's s. 91(24) Powers and Duties[412] Von Gernet conceded (December 10, 2009) that Morris, given his background,understood Canada's and Ontario's legislative powers under the BNA Act. He acknowledged thatMorris understood that the Government of Canada had the obligation to protect and deal with theinterests of the Indians, arising out of the Rupert's Land order and also out of its assumption ofresponsibility for Indians and lands reserved for the Indian under s. 91(24). In the somewhatarchaic language of the day, it viewed the Indians as wards or pupils of the Crown. Section91(24) was often understood to confer the responsibility on the federal government to carry outthe duties associated with that wardship or pupilage.2011 ONSC 4801 (CanLII)[413] Saywell said (April 7, 2009) that the words "trustee" and "trust" had been mentionedemphatically and explicitly in the establishment of the department of the Secretary of State, thedepartment then responsible for Indians. Langevin mentioned it and McDougall spoke, on theseventh resolution of the address to Her Majesty, December 1867, of the particular responsibilityof the central government under s. 91(24). The Indians were in a state of pupillage vis-à-vis thefederal government, children, heathens, uncivilized. The federal government was responsible forlooking out for them and managing their affairs.[414] Vipond gave evidence (February 25, 2010 at pp. 143 and 150) that Morris knew that anumber of the Fathers of Confederation, including his mentor Macdonald, George Brown, Roseand Alexander Mackenzie (the second prime Minister) were of the view that one of the federalgovernment's functions was to protect individual and minority rights against arbitrary acts oflocal governments. For example, they expected the federal government to have a role inprotecting minority religious education. He agreed that part of the reason for assigning Indianmatters to the federal government was to protect a vulnerable local minority; the Indians.[415] Milloy gave evidence that jurisdiction was given to the federal government (i.e., the moredistant level of government) as a way of protecting local minorities against local majorities. TheIndians, wards of Canada, were members of a vulnerable minority.[416] Morris knew that his mentor Macdonald viewed protection of Indians as important.[417] Milloy gave evidence specifically on Morris' view of the role of the Canadiangovernment under s. 91(24). Morris believed that under s. 91(24), Canada had jurisdiction tonegotiate and enter into treaties with the Indians. Canada had jurisdiction over and responsibilityfor Indians and Lands Reserved for the Indians. He was generally of the view that the federalgovernment was expected to be the protector of the Indians. He believed the white man should