COURT OF APPEAL FOR ONTARIO

CITATION: Keewatin v. Ontario (Natural
    Resources), 2013 ONCA 158

DATE: 20130318

DOCKET: C54314, C54326 & C54348

Sharpe, Gillese and Juriansz JJ.A.

BETWEEN

Andrew Keewatin Jr. and Joseph William Fobister
    on their own behalf and on behalf of all other members of Grassy Narrows First
    Nation

Plaintiffs (Respondents)

and

Minister of Natural Resources

Defendant (Appellant)

and

Resolute FP Canada Inc.
    (formerly Abitibi-Consolidated Inc.)

Defendant (Appellant)

and

The Attorney General of
    Canada

Third Party (Appellant)

Michael R. Stephenson, Mark R. Crow, Peter R. Lemmond, and
    Candice Telfer, for the appellant the Minister of Natural Resources

Gary N. Penner and Barry M. Ennis, for the appellant the Attorney
    General of Canada

Christopher J. Matthews, for the appellant Resolute FP
    Canada Inc.

William J. Burden, Thomas F. Isaac and Linda I. Knol, for
    intervener Goldcorp Inc.

Robert J.M. Janes, Karey Brooks and Elin Sigurdson, for the
    respondents

Bruce Stadfeld McIvor, for the interveners Big Grassy First
    Nation, OchiichagweBabigoining Ojibway Nation, Ojibways of Onigaming First
    Nation, Naotkamegwanning First Nation, and Shoal Lake #40 First Nation, and
    Leslie Cameron on his own behalf and on behalf of all other members of Wabauskang
    First Nation

Peter W. Hutchins, Zachary Davis and Robin Campbell, for the
    intervener Grand Council of Treaty #3

David G. Leitch and Travis Moffatt, for the intervener Lac
    Seul First Nation

Abram Averbach, for the interveners Ermineskin Cree Nation,
    Muskeg Lake Cree Nation #102, Whitefish (Goodfish) Lake First Nation #128 and
    Samson Cree Nation

Heard: January 14  18, and 21  23, 2013

On appeal from the judgment of Justice Mary A. Sanderson dated
    August 16, 2011, with reasons reported at 2011 ONSC 4801, [2012] 1 C.N.L.R. 13.

BY THE COURT:

A.

OVERVIEW

[1]

On October 3, 1873, Canada and the Saulteaux Tribe of the Ojibway
    Indians (the Ojibway) entered into Treaty 3 in respect of a large tract of
    land situated in what is now northwestern Ontario and eastern Manitoba. By
    entering into Treaty 3, the Ojibway surrendered their interest in the lands in
    exchange for reserves, payments and other benefits. Treaty 3 contains a
    harvesting clause by virtue of which the Ojibway retain the right to pursue
    their avocations of hunting and fishing throughout the tract surrendered
    except on tracts required or taken up for settlement, mining, lumbering or other
    purposes by [the] Government of the Dominion of Canada.

[2]

Treaty 3 covers an area of approximately 55,000 square miles. In 1873,
    Canada claimed ownership of all of the territory covered by Treaty 3. The Treaty
    was negotiated by Commissioners appointed by the Dominion of Canada. Part of
    the territory, the Keewatin District, was unquestionably under Canadas
    jurisdiction in 1873 and another part of the territory was disputed with
    Ontario. Since 1912, all of the Treaty 3 territory, except for a small portion
    in Manitoba, has been within the borders of Ontario.

[3]

The central issue on these appeals is whether Ontario has the right to
    take up lands and thereby limit harvesting rights without first obtaining
    Canadas approval in the Keewatin portion of the Treaty 3 lands (the Keewatin
    Lands).

The claim

[4]

The plaintiffs in this action and respondents on these appeals are
    members of the Grassy Narrows First Nation (Grassy Narrows). In 1997, Ontarios
    Minister of Natural Resources (Ontario) issued a sustainable forest licence,
    which enabled Abitibi-Consolidated Inc., a large pulp and paper manufacturer,
    to carry out clear-cut forestry operations in certain parts of the Whiskey Jack
    Forest, which falls within the Keewatin portion of the Treaty 3 territory.

[5]

In 2000, Grassy Narrows applied for judicial review to set aside all
    licences, permits, management plans, and work schedules that Ontario had granted
    to Abitibi, alleging that the forestry operations were in violation of the
    Treaty 3 harvesting clause. The Divisional Court quashed the application for
    judicial review on the grounds that it lacked the jurisdiction to grant some of
    the relief sought and there were complex questions of fact and law that
    required a trial. Grassy Narrows was permitted to bring an action raising the
    same issues:
Keewatin v. Ontario (Minister of Natural Resources)
(2003), 66 O.R. (3d) 370 (Div. Ct.).

[6]

In January 2005, the plaintiffs launched the action from which these
    appeals are taken.

The case management order

[7]

In 2006, Spies J. made a case management order dividing the trial into
    two phases. The order directed that the first phase would involve the trial of
    two issues:

Question
    One
: Does Her Majesty the Queen in Right of Ontario have the
    authority within that part of the lands subject to Treaty 3 that were added to
    Ontario in 1912, to exercise the right to take up tracts of land for
    forestry, within the meaning of Treaty 3, so as to limit the rights of the
    plaintiffs to hunt or fish as provided for in Treaty 3?

Question
    Two
: If the answer to question/issue 1 is no, does Ontario
    have the authority pursuant to the division of powers between Parliament and
    the legislatures under the
Constitution Act, 1867
to justifiably
    infringe the rights of the plaintiffs to hunt and fish as provided for in
    Treaty 3?

[8]

Question one turns on the interpretation of Treaty 3s harvesting clause,
    which preserves the Ojibways hunting and fishing rights subject to a taking
    up clause:

Her Majesty further agrees with Her said Indians, that they the
    said Indians shall have [the] right to pursue their avocations of hunting and
    fishing throughout the tract surrendered as hereinbefore described subject to
    such regulations as may from time to time be made by Her Government of Her
    Dominion of Canada and saving and excepting such tracts as may, from time to
    time, be required or taken up for settlement, mining, lumbering or other
    purposes by Her said Government of the Dominion of Canada, or by any of the
    subjects thereof duly authorized therefor by the said Government.

[9]

Question two, which is only necessary to answer if the response to
    question one is no, looks at the division of powers in the abstract. It does
    not consider any specific licence or legislation.

[10]

Spies
    J.s order contemplates another phase of the trial to determine the plaintiffs
    claim with respect to the validity of the specific forestry licence and
    practices. The second phase of litigation has yet to commence.

Judgment under appeal

[11]

After
    an extended trial on the two issues identified for the first phase, the trial
    judge answered no to both questions. She gave lengthy, detailed and complex
    reasons for judgment. The trial judge found in favour of Grassy Narrows on
    every crucial issue. In particular, she found that in the Keewatin Lands,
    Ontario could not take up land so as to limit harvesting rights without first
    obtaining Canadas approval.

[12]

The
    parties have radically different views as to what are the trial judges
    findings of fact. The appellants attack all of what they view as her
    significant findings of fact and conclusions of law.

Parties and interveners on appeal

[13]

On
    appeal there are 10 different parties or sets of parties: three appellants, two
    interveners with party status, four other interveners, and the respondents.

[14]

The
    first two appellants are Ontario and the Attorney General of Canada (Canada).
    Canada was added below as a third party to the litigation.

[15]

The
    third appellant is Abitibi, which changed its name to Resolute FP Canada Inc.
    in May 2012. It owns and operates a paper mill in the Treaty 3 area. It
    surrendered its Whiskey Jack forestry licence  the licence that gave rise to
    these proceedings  shortly after the company was granted protection under the
Companies
    Creditors Arrangement Act
, R.S.C. 1985, c. C-36, in 2009. While the
    company initially participated in the trial, it withdrew in November 2009 as it
    focused on its reorganization. It is common ground, however, that the issues
    raised on this appeal remain alive and require resolution.

[16]

Goldcorp
    Inc. was granted party intervener status on these appeals. Its Red Lake gold
    mine is the largest gold mine in Canada. It is located within the Keewatin
    Lands and its operations depend on licences issued by Ontario. Goldcorp
    supports the appellants position.

[17]

Leslie
    Cameron acting on behalf of himself and the Wabauskang First Nation (Wabauskang)
    was also granted party intervener status. Wabauskangs traditional territory
    includes lands within the Keewatin Lands.

[18]

Grand
    Council of Treaty #3 describes itself as the traditional, historic governing
    body and political organization charged with advancing and protecting the Anishinaabe
    Nations rights and interests in Treaty 3 territory. It is composed of the
    leaders of the 28 communities of the Anishinaabe Nation in Treaty 3 who meet as
    the Chiefs in Assembly of the Grand Council. The 28 communities have reserve
    lands across Treaty 3 territory, mostly south of the Keewatin Lands. The Grand
    Council participated in the appeals as an intervener.

[19]

Five
    Treaty 3 First Nations with reserves and traditional territories south of the
    English River in the so-called Disputed Territory also participated in these
    appeals as interveners: Big Grassy First Nation, Naotkamegwanning First Nation,
    Ochiichagwebabigoining Ojibway Nation, Ojibways of Onigaming First Nation and
    Shoal Lake #40 First Nation (the Big Grassy interveners).

[20]

Lac
    Seul First Nation (Lac Seul) is also a Treaty 3 First Nation. Its traditional
    territory includes portions of the Keewatin Lands. It too participated as an
    intervener.

[21]

Finally,
    a number of Treaty 6 First Nations were granted intervener status: Ermineskin
    Cree Nation, Muskeg Lake Cree Nation #102, Whitefish (Goodfish) Lake First
    Nation #128 and Samson Cree Nation (the Treaty 6 interveners). Treaty 6,
    which covers large tracts of land in central Alberta and Saskatchewan, contains
    a similar harvesting clause to that of Treaty 3.

[22]

The
    First Nations interveners support the respondents position that the trial
    judge correctly answered the two threshold questions.

Outcome of the appeals

[23]

For
    the following reasons, we conclude that the trial judge made many errors and
    that these appeals must be allowed. We propose to begin with a summary of the
    facts, to identify the trial judges key factual findings and legal
    conclusions, and then to explain our reasons for concluding that the trial
    judges central findings and conclusions cannot stand. It is neither necessary
    nor desirable for us to canvas all of the issues and arguments that were
    raised; we have chosen to focus on what we perceive to be the truly dispositive
    aspects of this case.

B.

FACTS

The Keewatin Lands

[24]

The
    trial judge devoted a substantial part of her decision to the history of Treaty
    3. We will not repeat or review those efforts here. Rather, we recount only
    those historical facts necessary to understand the context within which Treaty
    3 came into being and the political realities that characterized the early
    years of its existence.

[25]

Grassy
    Narrows claim relates to an area called the Keewatin Lands. In 1873, the
    Keewatin Lands were within the District of Keewatin, a federal territory. They
    became part of the Province of Ontario when Ontario and Canada passed
    reciprocal legislation in 1912:
Ontario Boundaries Extension Act, 1912
(C.A.), 2 Geo. V, c. 40
; An Act to express the Consent of the Legislative
    Assembly of the Province of Ontario to an Extension of the Limits of the
    Province
(ON), 2 Geo V., c. 3 (together, the 1912 Legislation).

[26]

The
    Keewatin Lands constitute only a portion of the lands covered by Treaty 3. The
    rest of the Treaty 3 lands that now fall within Ontario are referred to in this
    case as the Disputed Territory. The Disputed Territory was the subject of a
    boundary dispute between Ontario and the federal government. We provide details
    of that dispute and its resolution below.

The negotiation of Treaty 3

[27]

Prior
    to any treaty negotiations in the area covered by Treaty 3, Canada had begun to
    build an immigrant travel route - the Dawson Route - to move settlers westward
    across Treaty 3 lands and waters. In 1871, to induce British Columbia to join
    Confederation, Canada promised to build a transcontinental railroad that would
    also cross the Treaty 3 territory.

[28]

In
    1871 and 1872, Canada sent Treaty Commissioners to negotiate with the Treaty 3
    Chiefs, but they were unable to conclude a treaty.

[29]

By
    1872, the Dawson Route was open and settlers were crossing through the Treaty 3
    territory heading West. By 1873, Canada was concerned about the security of
    travellers over the Dawson Route and surveyors preparing for the construction
    of the Canadian Pacific Railway (CPR). Canada feared it would have to incur
    the costs of stationing troops in the area. The deadline for completing the CPR
    between the Red River and Lake Superior was December 31, 1876.

[30]

In
    1873, Canada renewed its efforts to negotiate a treaty. Three Treaty
    Commissioners were appointed.

[31]

The
    first was Alexander Morris, a founder of Confederation and a political ally of
    Sir John A. Macdonald. He served as a federal cabinet member and briefly as a
    judge before his appointment as Lieutenant-Governor of Manitoba and the
    North-West Territories. He subsequently played a leading role in the
    negotiation of Treaties 3, 4, 5, and 6.

[32]

The
    second commissioner was Joseph Provencher, a federal Indian Agent.

[33]

The
    third commissioner was Simon Dawson, who had supervised the construction of the
    Dawson Route. He had also been involved in an earlier exploratory expedition
    through Treaty 3 lands and earlier treaty negotiations with the Ojibway.

[34]

The
    Commissioners were authorized, on behalf of the Crown in right of Canada, to
    negotiate, make and conclude with the several bands or tribes of Indians the
    necessary Treaties for the cession to us, our heirs and successors, of all and
    every their respective rights, titles, and claims to and in the said lands and
    every of them.

[35]

All
    Chiefs from the Treaty 3 area were present and participated in the Treaty
    negotiations. Three were selected as spokespersons. The Chiefs were accompanied
    by an Aboriginal reporter whose duty was to commit to memory all that was said as
    well as Joseph Nolin, a Métis who was to take notes of the negotiations in
    French.

[36]

The
    1873 negotiations, which resulted in the making of Treaty 3, were very well recorded
    as reflected by the documents that were in evidence at trial:

·

the formal English language Treaty signed by the parties;

·

Morriss official report on the making of the Treaty dated
    October 14, 1873;

·

a record of discussions taken by a shorthand reporter, as
    subsequently published in
The Manitoban
newspaper (although the original
    notes of the reporter are not available);

·

handwritten notes made during the Treaty negotiations that are
    generally accepted to be Dawsons notes;

·

an English translation of the notes made by Nolin, which were attached
    to Morriss report;

·

a document recording a written list of treaty demands dated
    January 22, 1869 apparently drafted on behalf of a group of Ojibway Chiefs; and

·

a record of negotiations published in
The

Manitoba Free
    Press
.

[37]

The
    parties to this litigation were not able to identify Ojibway elders with
    relevant oral traditions.

The 1873 negotiations

[38]

The
    Commissioners arrived at the North-West Angle of the Lake of the Woods in late
    September 1873 along with an entourage and a contingent of troops sent to add
    to the pomp of military display. The entourage included two Métis who acted as
    cultural intermediaries and translators: James McKay and George McPherson.

[39]

Negotiations
    were deferred for a number of days as the Chiefs were not ready to proceed. The
    parties gathered on September 30 and negotiations began in earnest on October
    1, 1873.

[40]

Throughout
    the negotiations, the Commissioners referred to the Queen, emphasizing that
    they represented her. They also made reference to the Queens government, which
    Morris referred to as being located in Ottawa, and to authorities in Ottawa.

[41]

Morriss
    October 1st proposal to the Chiefs included initial and annual monetary
    payments, goods, provisions and the offer to establish schools and reserves.

[42]

According
    to two accounts of the negotiations (as found in
The Manitoban
and in Dawsons
    notes), Morriss reference on October 1st to reserves was followed by a
    reference to hunting and fishing.

[43]

The
    Manitoban
recorded that Morris stated that [i]t may be a long time before
    the other lands [outside the reserves] are wanted, and in the meantime the
    First Nations would be permitted to hunt and fish over them.

[44]

Similarly,
    Dawsons notes record Morriss statement as: It may be a long time before the
    other lands are wanted and you will have the right to hunt and fish over them
    until white man wants them.

[45]

The
    Ojibway responded to Morriss proposal by saying that they would retire to
    discuss the offer among themselves. Negotiations were thus adjourned to the
    next day.

[46]

On
    October 2nd, the Ojibway presented a lengthy list of demands. The list included
    monetary and other terms that were much more generous than those offered by
    Morris.

[47]

The
    Chiefs pressed their demands throughout the day and Morris rejected them. A
    turning point in the negotiations came towards the end of the day when Chief Sah-katch-eway
    of Lac Seul stepped forward and indicated a willingness to make a deal.

[48]

Negotiations
    were again adjourned and Ojibway representatives held a council through the
    evening of October 2nd and into the morning of October 3rd. Nolin and McKay
    were among those who attended the council.

[49]

Chief
    Manitobiness opened the negotiations on October 3rd by inviting Morris to
    present his best offer. Morris presented additional and improved terms to which
    the Commissioners had agreed among themselves, including agricultural
    implements, fishing nets, twine and an increase in the monetary terms.

[50]

The
    Ojibway negotiators proceeded to raise additional issues, which the Commissioners
    responded to in turn.

[51]

According
    to
The Manitoban
, the Ojibway demanded that [w]e must have the
    privilege of travelling about the country where it is vacant. James McKay is
    reported in
The Manitoban
as saying, Of course, I told them so.

[52]

Dawsons
    notes similarly record that there was a request that the Ojibway have the
    privilege of travelling through the country. The response is simply recorded
    as yes.

[53]

The
    entry in Nolins notes records that McKay stated: The Indians will be free, as
    by the past, for their hunting and rice harvest.

[54]

Following
    negotiations on each of the many points raised by the Ojibway, Treaty 3 was
    concluded and signed on behalf of the parties. The text of Treaty 3 is included
    at Appendix A.

Boundary dispute

[55]

Treaty
    3 was negotiated amidst controversy over the location of Ontarios western and
    northern boundaries. At the time Treaty 3 was negotiated, the federal
    governments position was that all of the Treaty 3 lands were in the North-West
    Territories or Manitoba, under the administration and control of the Dominion
    of Canada. Ontario took the position that its boundaries extended to the west
    of its current boundary, taking in much of what became Treaty 3 lands.

[56]

The
    boundary dispute was lengthy and at times acrimonious, with Premier Oliver
    Mowat fighting to defend Ontarios position and Prime Minister John A. Macdonald
    refusing to back down.

[57]

The
    relationship between the federal government and Ontario softened after Prime
    Minister Macdonald was forced to resign in November 1873 as a result of a
    political scandal.

[58]

Alexander
    Mackenzies Liberal government came to power in January 1874.

[59]

With
    a more conciliatory Liberal government in Ottawa and a Liberal government in
    Ontario, in June 1874 the two sides agreed to resolve the boundary dispute
    through arbitration and reached a provisional boundary agreement to provide
    legal certainty for development in the disputed area.

[60]

The
    provisional boundary ran north-south through the eastern part of the Treaty 3
    area.

[61]

Under
    the 1874 Provisional Boundary Agreement, it was agreed that for lands within
    the Disputed Territory to the east and south of the provisional boundary,
    Ontario would grant patents; to the west and north, Canada would grant patents.
    If it were subsequently found that these lands were not in Ontario or federal
    territory, the applicable government would ratify the patents issued by the
    other government and account for the proceeds of such lands.

[62]

Ontarios
    position in the boundary dispute was accepted in August 1878 by a panel of
    arbitrators, resulting in most of the Treaty 3 area being in Ontario.

[63]

However,
    matters changed with Macdonalds return to power in October 1878. He refused to
    honour the arbitration decision.

[64]

The
    Ontario boundary dispute case was heard by the Judicial Committee of the Privy
    Council in 1884, which essentially endorsed the 1878 arbitrators ruling.
    Ontarios original boundaries, as determined by the Privy Council in 1884, were
    not confirmed by Imperial legislation until 1889:
Canada (Ontario Boundary)
    Act, 1889
(U.K.), 52-53

Vict., c. 28.

[65]

In
    the meantime, despite the Privy Councils decision, Prime Minister Macdonald
    continued to assert Canadas administration and control over the entire Treaty
    3 lands. The federal government took the position that, because it had obtained
    the surrender of the Aboriginal title in Treaty 3, Canada was the owner of the
    Crown lands in the territory of Treaty 3. Ontario strongly contested that claim
    and asserted that the province was entitled to the beneficial ownership of the
    lands pursuant to the
Constitution Act, 1867
(U.K.), 30 & 31
    Vict., c. 3, s. 109. As is discussed later in these reasons, s. 109 gives
    Ontario beneficial ownership of Crown lands within the borders of Ontario,
    subject to any trust or other interest in those lands, including existing
    Aboriginal interests.

[66]

Canada
    issued timber permits that Ontario challenged. The dispute led to the Privy
    Councils 1888 decision in
St. Catherines Milling

and Lumber Co.
    v. The Queen
(1888), 14 A.C. 46, affg [1887] 13 S.C.R. 577, affg (1866),
    13 O.A.R. 148 (C.A.), affg (1885), 10 O.R. 196 (Ch. Div.). The Privy Council decided
    in Ontarios favour. It struck down the federal timber licence, upheld
    Ontarios s. 109 claim and held that the province had exclusive power to
    authorize forestry on off-reserve Treaty 3 lands in the province.

[67]

Negotiations
    from 1889 to 1891 between Canada and Ontario culminated in reciprocal
    legislation:
An Act for the settlement of certain questions between the
    Governments of Canada and Ontario respecting Indian Lands
(C.A.), 54 &
    55 Vict., c. 5;
An Act for the settlement of questions between the
    Governments of Canada and Ontario respecting Indian Lands
(ON), 54 Vict.,
    c. 3 (the 1891 Legislation). It dealt with the selection and confirmation by
    Ontario of Treaty 3 reserves and confirmed Ontarios authority to take up
    Treaty 3 surrendered lands situated within its boundaries. The 1891 Legislation
    included a Schedule, containing a draft agreement addressing the two issues.
    The draft agreement was executed by both governments in 1894 (the 1894
    Agreement).

[68]

Article
    1 of the 1894 Agreement provides that with respect to lands taken up for
    settlement, mining, lumbering or other purposes ... it is hereby conceded and
    declared that as the lands belong to Ontario, the Indian harvesting rights do
    not continue with reference to any tracts which have been, or from time to time
    may be, required to be taken up for settlement, mining, lumbering or other
    purposes by the Government of Ontario or persons duly Authorized by the said
    Government of Ontario.

[69]

Ontarios
    boundaries (as well as Quebecs and Manitobas) were again extended by
    reciprocal legislation passed by Canada and Ontario in 1912. The 1912
    Legislation extended Ontarios boundaries to include the Keewatin Lands.

[70]

The
    1912 Legislation did not expressly allow Ontario to take up lands in
    Keewatin.

[71]

Apart
    from projects falling within federal jurisdiction (such as inter-provincial
    railways, harbours, national parks, etc.), development, patenting and leasing
    of Crown lands in the Treaty 3 area have been exclusively authorized by Ontario
    - in the Disputed Territory since the late 1880s and in the Keewatin Lands
    since 1912.

C.

The trial judges decision

Answer to Question One

Interpretation of the harvesting clause

[72]

The
    trial judge reviewed the history leading up to Treaty 3 at great length. She
    emphasized the fact that Canada needed the Treaty more than the Ojibway. Canada
    had obtained British Columbias assent to enter Confederation on the promise of
    building the CPR railway. Securing a safe route through the traditional Ojibway
    hunting and fishing lands for the railway and for the expected influx of
    settlers was vital for the accession of British Columbia to Confederation and
    for the development of the West. Two previous attempts to secure a treaty had
    failed and Canada knew that, once again in 1873, the Ojibway could walk away
    from the negotiations without reaching an agreement.

[73]

The
    trial judge found that the relationship with the Queen's Government at Ottawa
    was important to the Ojibway and that they relied on the Ottawa government to
    implement and enforce the Treaty promises made by the Crown.

[74]

The
    trial judge also found that both Morris, who was Canadas principal
    Commissioner at the Treaty 3 negotiations, and Canada believed that it was
    pivotal that the Ojibway should remain content while the railroad was being
    built and while the settlers crossed the Dawson Route to the West.

[75]

She
    further found that Morris was aware of the boundary dispute with Ontario and
    that to ensure that in the event Ontario was successful in asserting its claim
    to the Disputed Territory, Morris deliberately tailored the wording of the
    harvesting clause to ensure that the Government of the Dominion of Canada could
    maintain a protective role. In her view, Morris intended to ensure that Canada
    could stand between Ontario and the Ojibway, where necessary, to police Ontarios
    taking up of lands pursuant to s. 109 so as to preserve and protect the Ojibway
    harvesting rights. This assertion of federal authority, she held, was a proper
    exercise of Canadas jurisdiction under s. 91(24) of the
Constitution Act
,
1867
over Indians, and Lands reserved for the Indians.

[76]

In
    her lengthy judgment, the trial judge formulates her findings on the issue of
    the proper meaning and interpretation of the harvesting clause in different
    places and in different language. We believe, however, that her central finding
    is best summarized at para. 1452:

In Keewatin, Ontario does
not
have
    the right to limit Treaty Rights by taking up lands
under
    the Treaty.
 It can issue land authorizations under s. 109 apart from
    the Treaty, but only in compliance with s. 109, i.e., only so long as the
    authorizations do not have the effect of substantially interfering with Treaty
    Harvesting Rights. To authorize uses that significantly interfere with Treaty
    Harvesting Rights
under the Treaty
, Ontario, or
    users of land already authorized by Ontario to use the land, must also obtain
    the authorization of Canada. [Emphasis in original.]

[77]

At
    the hearing of the appeals much argument was devoted to the trial judges
    findings of fact relating to the scope of the taking up power under the harvesting
    clause. The parties spent a great deal of time reviewing the evidence that
    pertains to that issue. It was striking that the parties disagreed not only
    about what factual issues were in dispute, but also about what the trial
    judges findings of fact were.

[78]

This
    is perhaps understandable given the length of the trial judges reasons  some
    1651 paragraphs. In her reasons, the trial judge addressed the factual and
    legal issues at various points and in various ways. As a result, it is possible
    for the reader to focus on a passage from a section addressing one issue, and erroneously
    read the passage as making a significant finding about a different issue.

[79]

A
    major cause of the lack of consensus about the trial judges findings is the
    fact that much of the trial judges discussion of what lands could be taken
    up is compounded with her view that Ontario could not exercise the Treaty partners
    right to take up lands without Canadas approval. At some points in her
    judgment, the trial judge uses taking up to describe what she considered to
    be Ontarios improper unilateral exercise of its s. 109 powers as amounting to using
    the Treaty lands in a way that is incompatible with the exercise of harvesting
    rights. In large part, this flows from her view that Ontario could not properly
    authorize the use of Treaty lands for the purposes specified in the taking up
    clause, namely settlement, mining, lumbering or other purposes without
    Canadas approval. On the other hand, in other passages she uses taking up with
    reference to the proper exercise of the Treaty partners right reserved by the
    harvesting clause to commence using the lands. These two different uses of the
    term taking up must be kept in mind in understanding the trial judges
    reasons.

[80]

The
    parties failed to maintain this distinction in their submissions. In support of
    their contention that the trial judges entire approach was fundamentally
    wrong, both Ontario and Canada made what might be described as a straw man
    argument. They submitted that the trial judge found that no government could
    significantly interfere with Treaty harvesting activities throughout the Treaty
    lands without breaching the Treaty, except along the Dawson Route and the CPR. In
    other words, the taking up clause could only be exercised in the Dawson Route
    and the CPR line corridors. Canada went so far as to raise doubt as to whether
    the trial judge even found that Treaty 3 represented a surrender of Treaty 3
    territory, except in very limited areas.

[81]

We
    do not agree with that interpretation of the trial judges findings. While isolated
    passages in the reasons, read out of context, could be read to support that
    view, in the final analysis, we agree with the respondents that when her
    reasons are read as a whole in the context of the evidence and the pleadings,
    the trial judge made no such finding.

[82]

In
    para. 924 the trial judge summed up her findings:

For all the reasons detailed within these Reasons, I have found
    that in the Treaty 3 area, the Commissioners promised
more
than a continuation of the right to hunt anywhere within their traditional
    territories. Away from the vicinity of the Dawson Route and the CPR, they
    intended that Ojibway Harvesting Rights would not be significantly interfered
without
    the authorization of Canada
. They would continue throughout the Treaty 3
    lands "as long as the sun shone and the waters flowed." [Underlining
    in original; italics added.]

[83]

As
    counsel for the respondents pointed out, the trial judge made clear in this passage
    that with Canadas authorization, the taking up clause could be used to limit harvesting
    rights outside of the Dawson Route and the CPR corridor.

[84]

Paragraph
    1280 also demonstrates that the trial judges finding as to the scope and
    effect of the taking up clause is confounded with her view that Ontario could
    not exercise the taking up power without Canadas approval. She said:

The Clause as written contemplates on its face that subjects of
    the Dominion may be authorized
by Canada
to
    "take up" lands under the Treaty/to use lands in a manner visibly
    incompatible with Harvesting Rights. Where Canada is not the owner of the land,
    the words of the Treaty on their face contemplate a two-step approval process
    in the event that land uses threaten to interfere with Harvesting Rights: (1)
    authorization to use the land from the owner of the land; and (2) additional
    authorization from Canada.

[85]

The
    underlining of by Canada is the trial judges. A few paragraphs later, in
    para. 1286 she said:

In my view, the plain and literal wording of the Treaty is that
    the Ojibway will have unlimited Harvesting Rights throughout the tract
    surrendered, i.e., over
all
the ceded territory,
    off-reserve as well as on-reserve, unless the process specified in the Treaty
    is followed. The Ojibway are entitled to exercise their Harvesting Rights
unless Canada has authorized their limitation or extinguishment
. [Underlining
    in original; italics added.]

[86]

Paragraph
    1310 again shows that the trial judge did not interpret the Treaty so that the
    right to take up lands was restricted to the Dawson Route and the CPR line,
    provided that Canada authorized the taking up. She said:

After having considered all the evidence and the various
    interpretations of common intention, the one that best reconciles the interests
    of both parties at the time the Treaty was signed, the chosen interpretation is
    that Canada promised continuous Harvesting Rights without significant
    interference away from the Dawson Route and CPR right-of-way and the Ojibway
    relied upon Canada and only Canada to implement and enforce those Rights.
    Canada intended that in the event it lost the Boundary Dispute,
Ontario would not be able to "take up" lands
/authorize
    any land uses that would significantly interfere with Harvesting Rights
unless Canada also authorized such "taking up."

[87]

Again
    the underlining is the trial judges. In our view, the trial judges finding is
    that, provided Canada approves, taking up may involve land uses that would
    limit harvesting rights throughout the entire area of Treaty 3.

[88]

We
    note as well that the respondents did not raise any issue regarding Ontarios
    ability to take up lands under Treaty 3 with federal authorization in their
    pleadings. Quite the contrary, in discovery admissions that were read in at
    trial respondents counsel stated that lands could be validly taken up under
    Treaty 3 if federal authorization were in place.

[89]

We
    conclude that when her reasons are properly read as a whole, the trial judge
    found that the taking up clause, which imposed a two-step process involving the
    approval of Canada for the lands added to Ontario in 1912, permitted lands
    throughout the entire Treaty 3 area to be taken up, subject only to the legal
    limits imposed by virtue of the honour of the Crown and the rights protected by
    s. 35 of the
Constitution Act, 1982
. As we explain below, these limits
    were definitively explained by the Supreme Court of Canada in
Mikisew Cree
    First Nation v. Canada (Minister of Canadian Heritage)
2005 SCC 69, [2005]
    3 S.C.R 388.

The 1891 Legislation, the 1894 Agreement and the 1912 Legislation

[90]

In
    answering question one, the trial judge found that the effect of the 1891 Legislation
    and the 1894 Agreement was limited to the Disputed Territory. She found, at
    para. 1455, that with respect to the Disputed Territory, Canada bargained away
    its control over Ojibway Harvesting Rights on lands taken up by Ontario in
    the Disputed Territory and that the legislation amended the Treaty in that
    respect. In other words, she found that Ontario could take up land in the
    Disputed Territory unilaterally, thereby affecting harvesting rights on that
    land.

[91]

However,
    she found that neither the 1891 nor the 1912 Legislation affected Treaty 3 harvesting
    rights in the Keewatin Lands, essentially on the ground that the 1912 Legislation
    did not clearly reveal an intention to alter the Treaty harvesting rights and
    specifically mentioned the federal governments continuing trusteeship
    obligations to the First Nations in the area.

[92]

The
    trial judge thus concluded that the answer to question one was no.

Answer to Question Two

[93]

Having
    answered question one no, the trial judge proceeded to question two. She
    concluded that, pursuant to the division of powers between Parliament and the legislatures
    under the
Constitution Act, 1867
, Ontario does not have the authority
    to justifiably infringe the rights of the plaintiffs to hunt and fish as
    provided for in Treaty 3. To arrive at that conclusion, trial judge applied the
    doctrine of inter-jurisdictional immunity.
That doctrine
    protects the core of a limited number of federal heads of power, including s.
    91(24), from impairment by provincial laws.

The
    trial judge found that treaty harvesting rights are at the core of the federal s.
    91(24) jurisdiction over Indians, and Lands reserved for the Indians, and
    that it followed that a province, in the exercise of its s. 109 proprietary
    rights, cannot infringe those rights, even if the infringement can be justified
    under the legal test a government must satisfy to justify an interference with
    a right protected by s. 35: see
R. v. Sparrow
, [1990] 1 S.C.R. 1075.

D.

Parties positions

[94]

The
    appellants and Goldcorp submit that the trial judges findings and legal
    conclusions on question one are unsupported by and contrary to the evidence,
    contrary to established law on Treaty 3 and the respective rights of Canada and
    Ontario over the surrendered lands, contrary to established principles of
    treaty interpretation, contrary to settled law on taking up lands under
    harvesting clauses, contrary to basic principles of the Canadian constitution
    and contrary to the doctrine of devolution with respect to obligations owed by
    the Crown.

[95]

The
    appellants and Goldcorp submit that the trial judges interpretation of the 1891
    and 1912 Legislation is fundamentally wrong and leads to an inconsistent and
    incoherent result whereby one part of the Treaty 3 lands (the Disputed
    Territory) fall under one legal regime, and the other part (the Keewatin Lands,
    which were added in 1912) falls under a different regime. Ontario contends
    that, properly read in accordance with principles of statutory interpretation,
    the 1891 Legislation does apply to the Keewatin Lands, and that, in any event,
    as submitted by Canada, the 1912 Legislation brought the Keewatin Lands within
    the scope of Ontarios s. 109 rights.

[96]

More
    generally, Ontarios position in this litigation is that it is bound by the
    significant limits the courts have placed on the Crowns ability to take up
    lands pursuant to the honour of the Crown and s. 35, as detailed in
Mikisew
.
    Ontario accepts that when contemplating land use authorizations or dispositions
    that may adversely affect Treaty 3 harvesting rights, it is constitutionally
    required to consult the affected persons and, where appropriate, accommodate those
    rights to ensure that each Treaty 3 First Nation has a meaningful ability to
    exercise its harvesting rights.

[97]

With
    respect to the trial judges answer to question two, the appellants and
    Goldcorp submit that inter-jurisdictional immunity has no application and that
    a long line of cases from the Privy Council and the Supreme Court of Canada
    makes it clear that the exercise of Ontarios proprietary rights conferred by
    s. 109 are not rendered inoperative or ineffective by Canadas s. 91(24)
    legislative head of power.

[98]

The
    First Nations interveners support the trial judges ultimate conclusions on
    questions one and two. However, they raise a number of issues that we propose
    to deal with below. In particular, they have asked this court to conclude that
    the trial judges findings as to the effect of the 1894 Agreement outside of
    the Keewatin Lands and her comments concerning the legal status of the Treaty 3
    reserves before 1915 were
obiter
. They also challenge her comments with
    respect to the extinguishment of Treaty 3 harvesting rights outside of the
    Keewatin Lands.

E.

ISSUES

[99]

In
    the first part of our analysis, which is set out below, we deal with issues
    relating to Question One. Specifically, we propose to answer the following:

(1)

Did the trial judge err in holding that Ontario cannot authorize the
    taking up of land in the Keewatin Lands, within the meaning of the harvesting
    clause, without Canadas approval or permission?

(2)

Did the trial judge err in her interpretation of the 1891 Legislation,
    the 1894 Agreement and the 1912 Legislation?

(3)

Does Ontarios use of the taking up clause, short of infringement,
    engage s. 91(24)?

[100]

In the second
    part of our analysis, we deal with issues that arise from Question Two,
    specifically:

(1)

Does inter-jurisdictional immunity apply and can Ontario resort to a
Sparrow
justification?

F.

ANALYSIS

Issues related to Question One

1. Did the trial judge err in holding that Ontario cannot
    authorize the taking up of land in the Keewatin Lands, within the meaning of
    the harvesting clause, without Canadas approval or permission?

[101]

We propose to
    consider this issue in three stages. First, we will consider whether the trial
    judges interpretation of the harvesting clause is consistent with governing
    constitutional provisions and principles. Then we will consider whether the
    text of the harvesting clause supports her interpretation. Finally, we will
    consider whether her factual findings bearing upon this issue can survive
    scrutiny.

Constitutional provisions

[102]

The harvesting
    clause has to be interpreted within the constitutional framework established by
    the
Constitution Act, 1867
, the case law elaborating those provisions,
    and other relevant constitutional principles.

[103]

Canadas
    constitutional order divides legislative authority between Canada and the
    provinces and extends certain protections to Aboriginal and treaty rights.

[104]

The
Constitution
    Act, 1867
,

s. 91(24) gives Canada exclusive legislative authority
    over Indians, and Lands reserved for the Indians. It is common ground that Canada
    negotiated Treaty 3 pursuant to the power conferred by s. 91(24).

[105]

Aboriginal and
    treaty rights existing in 1982 enjoy constitutional protection by virtue of
    the
Constitution Act, 1982
, s. 35:

35.(1) The existing aboriginal and treaty rights of
    the aboriginal peoples of Canada are hereby recognized and affirmed.

[106]

The
Constitution
    Act, 1867
, s. 109 gives Ontario beneficial ownership of Crown lands within
    the borders of Ontario, subject to any trust or other interest in those lands,
    including existing Aboriginal interests:

109. All Lands, Mines, Minerals, and Royalties
    belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at
    the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or
    Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova
    Scotia, and New Brunswick in which the same are situate or arise, subject to
    any Trusts existing in respect thereof, and to any Interest other than that of
    the Province in the same.

[107]

Ontario also has
    exclusive legislative jurisdiction to manage and sell public lands belonging to
    the province by virtue of s. 92(5):

92. In each Province the Legislature may
    exclusively make Laws in relation to Matters coming within the Classes of
    Subjects next hereinafter enumerated; that is to say,

5. The Management and Sale of the Public Lands
    belonging to the Province and of the Timber and Wood thereon.

[108]

By virtue of s.
    109, Ontario beneficially owns the public lands governed by Treaty 3 situated
    within its borders, and by virtue of s. 92(5), Ontario has exclusive
    legislative authority to manage and sell those public lands.

[109]

Additional powers
    with respect to non-renewable natural resources, forestry resources and
    electrical energy are conferred on the provinces by s. 92A:

92A. (1) In each province, the legislature
    may exclusively make laws in relation to

(a) exploration for non-renewable natural
    resources in the province;

(b) development, conservation and management of
    non-renewable natural resources and forestry resources in the province,
    including laws in relation to the rate of primary production therefrom; and

(c) development, conservation and management of
    sites and facilities in the province for the generation and production of
    electrical energy.

[110]

The taking up of
    public lands in Ontario for provincial purposes occurs pursuant to ss. 109,
    92(5) and 92A, by which forestry, mining, settlement and other land uses within
    provincial jurisdiction are authorized. The federal government also has a
    residual ability to take up lands for federal purposes under federal heads of
    power (e.g. the establishment of national parks, railways, harbours, airports,
    military bases, etc.).

[111]

As will become
    clear from the discussion that follows, Ontarios beneficial ownership,
    combined with the exclusive legislative authority to manage and sell the lands,
    embraces the things that would amount to taking up lands governed by Treaty 3
    for settlement, mining, lumbering or other purposes, including in the
    Keewatin Lands.

Case law

[112]

The Privy Council
    considered the allocation of constitutional authority to Ontario and Canada
    applicable to the taking up of lands governed by Treaty 3  in
St.
    Catherines Milling.
In that case, Ontario challenged the validity of a
    licence issued by Canada to the St. Catherines Milling and Lumber Company to
    cut timber on public lands within the area governed by Treaty 3. Canada took
    the position that as the lands had been ceded to Canada under the Treaty,
    Canada enjoyed the beneficial ownership of the lands and, with ownership, the
    right to administer the lands.

[113]

The Privy
    Council rejected that contention and ruled that the Treaty was between the
    Indians and the Crown, not Canada, and that by virtue of s. 109, beneficial
    ownership in the lands and the right to administer and profit from the lands by
    issuing timber licences belonged exclusively to Ontario.

[114]

St.
    Catherines Milling
involved the Disputed Territory portion of the Treaty
    3 lands. By the time the case was heard, the boundary dispute had been resolved
    in Ontarios favour. While the specific focus of the case was the validity of a
    timber licence, the Privy Council recognized, at p. 53, that the decision
    necessarily involves the determination of the larger question between that
    government [Canada] and the province of Ontario with respect to the legal
    consequences of the treaty of 1873.

[115]

Lord Watson
    traced the history of the relationship between Aboriginal people and the Crown
    from the
Royal Proclamation, 1763,
and outlined the protective role
    assumed by the Crown in relation to dealings in Indian lands. He did not find
    it necessary to define the precise quality of the Indian right but held, at
    p. 55, that from the date of the
Royal Proclamation
, there was vested
    in the Crown a substantial and paramount estate, underlying the Indian title,
    which became a plenum dominium whenever that title was surrendered or otherwise
    extinguished.

[116]

The nature and
    character of the Indian interest in the lands did not change until that
    interest was surrendered by the Treaty: p. 55. The Crown had at all times what
    Lord Watson described, at p. 58, as a present proprietary estate in the land,
    upon which the Indian title was a mere burden. The underlying legal estate
    remained vested in the Crown, but beneficial ownership, including all revenues
    derived from [lands] being taken up for settlement, mining, lumbering and other
    purposes devolved to the Province of Canada when it was created in 1840: p.
    55. As Lord Watson went on to explain, the beneficial ownership subsequently
    passed to Ontario at Confederation in 1867 pursuant to s. 109.

[117]

That
    constitutional provision, said Lord Watson at p. 57, was sufficient to give
    each Province, subject to the administration and control of its own
    Legislature, the entire beneficial interest of the Crown in all lands within
    its boundaries vested in the Crown at the time of union, excepts lands vested
    under the
Constitution Act, 1867
, s. 108 (public works and property
    specifically enumerated in Schedule 3) and s. 117 (property required for
    national defence). By virtue of the terms of s. 109, Ontarios beneficial
    interest is subject to any Trusts existing in respect thereof, and to any
    Interest other than that of the Province in the same. Those words embrace the
    burden of the Indian title or, following cession of that title, treaty rights
    with respect to the lands.

[118]

The Privy
    Council rejected Canadas argument that the power to make laws for Indians,
    and Lands reserved for the Indians conferred by s. 91(24) gave Canada any patrimonial
    interest the Crown had in the lands reserved for Indian occupation by virtue of
    the
Royal Proclamation.
As Lord Watson put it, at p. 59, the power
    of legislating for Indians, and for lands which are reserved to their use  is
    not in the least degree inconsistent with the right of the Provinces to a
    beneficial interest in these lands, available to them as a source of revenue
    whenever the estate of the Crown is disencumbered of the Indian title.

[119]

The Privy
    Council rejected Canadas contention that Treaty 3 amounted to an agreement or
    conveyance between the Indians and the Government of Canada. The Treaty, said
    Lord Watson, at p. 60, was according to its very terms a transaction between
    the Indians and the Crown. The Commissioners who negotiated the Treaty were
    appointed by the Dominion of Canada and they had full authority to represent
    the Crown and to accept a surrender of the Indian title to the Crown, but they
    had neither authority nor power to take away from Ontario the interest which
    had been assigned to that province by the
Constitution Act, 1867
.

[120]

Lord Watson
    stated, at p. 60, that Canadas exclusive power to regulate the Indians
    privilege of hunting and fishing did not extend to confer upon Canada the
    power to dispose, by issuing permits or otherwise, of that beneficial interest
    in the timber which has now passed to Ontario. Simply put, once the beneficial
    interest in the lands passed to Ontario by virtue of s. 109, Canada lost the
    right to take up the lands.

[121]

The respondents
    place heavy reliance on the concluding passage in Lord Watsons opinion, at p.
    60:

There may be other questions behind, with respect to the right
    to determine to what extent, and at what periods, the disputed territory, over
    which the Indians still exercise their avocations of hunting and fishing, is to
    be taken up for settlement or other purposes, but none of these questions are
    raised for decision in the present suit.

[122]

The trial judge
    accepted the respondents argument that Lord Watsons reference to remaining
    and undecided questions behind regarding the reconciliation of the Aboriginal
    harvesting right and the taking up of lands left open the issue of whether
    federal approval was required to take up lands: see especially at para. 1340.

[123]

We are unable to
    agree with that interpretation of Lord Watsons dictum.
St. Catherines
    Milling
resolved a very hard fought battle between Canada and Ontario over
    valuable resources - which level of government had the right to profit from the
    resources and which level of government had the right to control the
    development and management of those resources. The Privy Council categorically
    denied Canadas claim and clearly affirmed Ontarios full jurisdiction to take
    up lands for development. Canadas jurisdiction to legislate in relation to
    Indians, and Lands reserved for the Indians was said to be
not in the
    least degree inconsistent
 with Ontarios right to manage and benefit from
    the lands. [Emphasis added.]

[124]

In our view, it
    is simply inconceivable that Lord Watson could have intended to leave dangling
    the possibility of a residue of federal authority that would unsettle the very
    question he had decided. The more plausible interpretation of the dictum is
    that the other questions behind referred to the reconciliation of the
    Aboriginal harvesting right with the development of the lands, the issue that
    was ultimately dealt with by the Supreme Court of Canada in
Mikisew
.

[125]

Treaty 3 was again
    considered by the Privy Council in
Dominion of Canada v. Province of
    Ontario
, [1910] A.C. 637 (the
Annuities Case
), where Canada
    asserted a claim against Ontario for indemnity for the payments made to the Ojibway
    by Canada under Treaty 3. Relying on a comment by Lord Watson in
St.
    Catherines Milling,
Canada argued that having obtained beneficial
    ownership of the lands ceded, Ontario was obliged to indemnify Canada for the
    payments made in exchange for the cession. The Privy Councils decision rejecting
    Canadas claim rests on two foundational pillars.

[126]

First, as stated
    in
St. Catherines Milling
, Treaty 3 is between the Ojibway and the
    Crown.

[127]

Second, in
    relation to the Crowns benefits and burdens arising under the Treaty, the two
    levels of government were separately invested by the Crown with its rights and
    responsibilities as treaty maker and as owner respectively: p. 645. The Crown,
    said Lord Loreburn, at p. 645, acts on the advice of ministers in making
    treaties, and in owning public lands holds them for the good of the
    community.

[128]

The Privy
    Council held that there was no legal principle to ground Canadas claim. The
    burden and the benefit of the Treaty rested with the Crown. The Dominion
    government, acting for the Crown under the authority conferred upon it by s.
    91(24), represented the Crown as treaty maker to achieve a great national
    purpose. The benefit Ontario derived, representing the Crown as beneficial
    owner by virtue of s. 109 of the constitution, could not render the government
    of Ontario liable to the government of Canada.

[129]

Turning to more
    recent case law, while the characterization of the legal nature of Aboriginal
    title in
St. Catherines Milling
has been overtaken by
Delagamuuk

v
.
British Columbia
, [1997] 3 S.C.R. 1010, the authority of
St.
    Catherines Milling
as to the operation of ss. 91(24) and 109 has

never
    been doubted.

[130]

In
Smith

v. Canada
, [1983] 1 S.C.R. 554, Estey
    J.
dealt with the relationship between s. 91(24) and s. 109 of the
Constitution
    Act, 1867
. He affirmed
St. Catherines Milling
, stating at p.
    562,
that the authority of that decision has
    never been challenged or indeed varied by interpretations and application. He
    confirmed the following principle from
St. Catherines Milling
, at p. 562:

The law therefore came to recognize the right and ability of
    the benefited Indians to give up their relationship to lands theretofore
    devoted to their use and occupation, and the result of such a process is the
    revival or restoration of the complete beneficial ownership in the Province
without
    further burden by reason of s. 91(24)
.  [Emphasis added.]

[131]

Estey J. went on,
    at pp. 564-65, to refer to the statement of Street J., who rendered the
    Divisional Court decision in
Ontario Mining Co. v. Seybold
, as cited
    by the Privy Council in
Seybold
, [1903] A.C. 73, at p. 81:

The Provincial Government could not without plain disregard of
    justice take advantage of the surrender and refuse to perform the condition
    attached to it; but it is equally plain that its ownership of the tract of land
    covered by the treaty was so complete
as to exclude the Government of the
    Dominion from exercising any power or authority over it.
[Emphasis added.]

[132]

In our view,
    that statement is to be preferred over the dictum of Chancellor Boyd, the trial
    judge in
Seybold
, which the respondents rely on to support their
    position that taking up involves both levels of government. Specifically, the
    respondents point to the following statement by Chancellor Boyd:

The question is left open in the
St. Catherines Milling and
    Lumber Company
case (1888), 14 A.C. 46, as to other questions behind
i.e
.,
    with respect to the right to determine to what extent and at what periods the
    territory over which the Indians hunt and fish, is to be taken up for
    settlement and other purposes
. I infer that these rights will be transacted
    by means of and upon the intervention of both general and local governments,
    although the central government may choose to deal ex parte with the Indians
    for the extinction of their claims to land
. Still it appears preferable,
    for the sake of the Indians themselves, as well as for present and future
    peace, that the allocation of particular or treaty reserves as well as the sales
    of surrendered lands should be upon conference with the band and with the
    approval and co-operation of the Crown in its dual character as represented by
    the general and the provincial authorities. [Emphasis added.]

[133]

Chancellor
    Boyds statement  the only judicial authority cited to us that implies the
    need for two levels of approval  is inconsistent with
St. Catherine's
    Milling
and the Privy Councils statement just quoted in the appeal from
    Chancellor Boyds judgment. In our view, Chancellor Boyds statement does not
    assist the respondents.

[134]

We conclude that
    the trial judges finding that the Commissioners who negotiated Treaty 3
    qualified Ontarios constitutional rights and responsibilities by agreeing to a
    requirement that Canada interpose itself and approve the taking up of lands
    is fundamentally at odds with this established constitutional framework and
    cannot be sustained.

[135]

The Ojibways Treaty
    partner is the Crown, not Canada. Canada is not a party to the Treaty. The
    Treaty promises are made by the Crown, not by a particular level of government.
    The Ojibway may look to the Crown to keep the Treaty promises, but they must do
    so within the framework of the division of powers under the constitution. As
    was specifically held in
St. Catherines Milling
, Canada, Morris and
    the other Commissioners who negotiated the Treaty had no authority to depart
    from the constitutions allocation of powers and responsibilities and no power
    to deprive Ontario of the beneficial ownership that devolved to the province
    when Ontarios borders were expanded.

Constitutional evolution

[136]

The taking up
    clause also has to be interpreted in the light of the process of constitutional
    evolution from the time of the
Royal Proclamation
in 1763, to the
    creation of the Province of Canada in 1840, the creation of the Dominion of
    Canada and the Province of Ontario at Confederation in 1867, and finally, the
    extension of Ontarios border in 1912. Throughout that process of
    constitutional evolution, the Crown and the relationship between the Crown and
    Canadas Aboriginal peoples remains a constant, central and defining feature.
    What has evolved is the allocation of legislative and administrative powers and
    responsibilities to different levels of government. In formal terms, what
    changes with constitutional evolution is the level of government on whose
    advice the Crown acts.

[137]

The principle of
    constitutional evolution has an important bearing upon treaties with First
    Nations. Treaties are solemn agreements and they are intended to last
    indefinitely. The rights they guarantee are not frozen in time:
R. v.
    Marshall,
[1999] 3 S.C.R. 456
; R. v. Bernard
, 2005 SCC 43, [2005]
    2 S.C.R. 220, at para. 25. Treaties must be capable of adapting to the natural
    evolution of the constitution, which evolves as a living tree to meet the
    changing political and cultural realities of Canadian society:
Canadian
    Western Bank v. Alberta,
2007 SCC 22, [2007] 2 S.C.R. 3, at para. 23.

[138]

As the English
    Court of Appeal explained in
R. v. Secretary of State for Foreign and
    Commonwealth Affairs
,
ex parte Indian Association of Alberta
, in
    relation to a challenge to proposals for constitutional change in 1982, if
    treaties are to be honoured by the Crown so long as the sun shines and river
    flows, treaty interpretation has to evolve along with the constitution: [1982]
    2 All E.R. 118 (C.A.), at pp. 129-30.

[139]

The promise made
    in the harvesting clause is that of the Crown, not Canada. The two levels of
    government are separately invested by the Crown with its rights and
    responsibilities as treaty maker and as owner respectively:
Annuities
    Case,
at p. 645. As Prime Minister Robert Borden stated in the House of
    Commons when explaining the effect of the 1912 Legislation, the land is always
    vested in the Crown and the only question is by whose advice shall that land
    be administered.... This land, like the rest of the land within the limits of
    Ontario, will be administered by the Crown on the advice of the provincial
    government:
House of Commons Debates
, 12th Parl., 1st Sess., No. 2
    (27 February 1912), at p. 3906.

[140]

Responsibility
    for respecting the Crowns promises falls to be determined by the allocation of
    powers under the constitution and the location of that responsibility evolves
    as the constitution evolves. The Crown, acting on the advice of the government
    of Ontario as the owner and administrator of the lands, is bound to keep the
    promise it made in the harvesting clause. When the beneficial title of the
    Keewatin Lands was transferred to Ontario by virtue of the 1912 Legislation and
    the operation of s. 109, by operation of law, the power of Canada as beneficial
    owner to take up lands devolved to Ontario. The interest assigned to Ontario by
    s. 109 as beneficial owner carries with it the burden of the harvesting clause
    imposed by the Treaty. In the exercise of its rights and powers as beneficial
    owner, Ontario is legally obliged to ensure that its actions on behalf of the
    Crown are consistent with the promises made by the Crown.

[141]

For these
    reasons, we conclude that the trial judge erred by failing to apply the
    governing constitutional principles in her interpretation of the taking up
    clause.

The text of the harvesting clause

[142]

For ease of
    reference, we repeat the text of the harvesting clause:

Her Majesty further agrees with her said Indians, that they the
    said Indians, shall have [the] right to pursue their avocations of hunting and
    fishing throughout the tract surrendered as hereinbefore described subject to
    such regulations as may from time to time be made by Her Government of Her
    Dominion of Canada and saving and excepting such tracts as may, from time to
    time, be required or taken up for settlement, mining, lumbering or other
    purposes by Her said Government of the Dominion of Canada, or by any of the
    subjects thereof duly authorized therefor by the said Government.

[143]

In our view, the
    trial judges interpretation, although said to be based upon the literal
    wording of the harvesting clause, cannot be reconciled with the text for a
    number of reasons.

[144]

The text of the
    harvesting clause plainly does not reflect or contemplate a two-step approval
    involving two levels of government for taking up tracts of land for settlement,
    mining, lumbering or other purposes. The text refers to only one level of
    government, the Dominion of Canada. The Dominion of Canada is referred to as
    the government that has the right to take up such tracts as may, from time to
    time, be required or taken up  by Her [Majestys] said Government of the
    Dominion of Canada.

[145]

In our view,
    there can be no doubt that the reference to the Government of the Dominion of
    Canada reflects the fact that in 1873, Canada claimed beneficial ownership of
    all the lands governed by Treaty 3. The Keewatin Lands were unquestionably
    Canadas and Canada strongly asserted its claim to beneficial ownership of the
    Disputed Territory.

[146]

The only
    reference to Canada approving the taking up of lands is found in the concluding
    phrase of the clause, which contemplates lands being taken up by any of the
    subjects thereof duly authorized therefor by the said Government. A province
    is not a subject of Her Majesty or a subject of Canada and these words have
    no application to Ontario.

[147]

It is telling
    that the drafters of Treaty 3 did foresee a role for Canada to authorize other
    entities to take up lands. The authorization clause did not, however, use
    language that embraced the province. If the drafters of the Treaty had actually
    intended that Canada would exercise a general supervisory role over the
    exercise of the taking up power, even if the borders of Ontario were extended,
    they could have said so. The fact that they did not tells against the trial
    judges interpretation.

[148]

Taken to its
    logical conclusion, the respondents literal meaning argument would put the
    taking up clause in a legalistic straightjacket. If the text of the harvesting
    clause is to be read literally, that would mean that
only
Canada can
    take up lands. As a result of
St. Catherines Milling
, it is clear
    that Canada cannot issue patents or permits for settlement, lumbering or
    mining. In other words, Canada does not have the authority to take up any of
    the surrendered lands. That net result would leave no level of government
    capable of doing so.

[149]

The trial judge
    accepted the literal approach but was only able to escape this impossible
    result by departing from the literal approach to read into the clause a two-step
    land use regime that cannot be derived from the literal meaning.

[150]

The text of the
    harvesting clause provides for taking up by one level of government. In 1873,
    it was believed that Canada enjoyed beneficial ownership of all Treaty 3 lands
    and Canada was accordingly specified as the government with the capacity to
    take up lands. Beneficial ownership and the legal authority to take up lands is
    derived from the constitution, not the taking up clause in the Treaty. When
    beneficial ownership was transferred to Ontario, Ontario took the place of
    Canada as the level of government with the capacity to take up lands, subject
    to the rights guaranteed by the Treaty.

[151]

To the extent
    the trial judges interpretation rests on the argument that the language of the
    harvesting clause is ambiguous, it should be rejected. It is well established
    that as a rule, ambiguities in treaties are generally to be resolved in favour
    of the Aboriginal treaty partners: see
R. v. Badger
, [1996] 1 S.C.R.
    771, at para. 41. However, as stated in
R. v. Marshall,
at para. 14, [g]enerous
    rules of interpretation should not be confused with a vague sense of
    after-the-fact largesse. Even a generous interpretation must be realistic, and
    reflect the intention of both parties and reconcile their interests:
R. v.
    Sioui
, [1990] 1 S.C.R. 1025, at p. 1069.

[152]

For the reasons
    just stated, we do not agree that the language is ambiguous.

[153]

Finally, the
    trial judges interpretation produces a process that is unnecessary,
    complicated, awkward and likely unworkable. The two-step process is unnecessary
    to protect the Aboriginal Treaty harvesting right because when the Crown,
    through Ontario, takes up land, it must respect the Treaty right. When Ontario
    stepped into Canadas shoes by virtue of the process of constitutional
    evolution, the legal standard that binds the Crown did not change and the
    Treaty right is fully protected. To require both levels of government to be
    engaged in a two-step process is, on its face, complicated and awkward. It is
    difficult to see how the process of consultation, which is required when the
    Treaty harvesting right is affected by taking up, would be improved by
    involving both levels of government.

[154]

The trial
    judges conclusion that Canada retains a role in Ontarios use of the taking up
    provision could undermine, rather than advance, reconciliation.  Leaving
    meaningful constitutional space for the exercise of provincial jurisdiction
    under ss. 109, 92(5) and 92A, without federal control under s. 91(24), fosters
    direct dialogue between the province and Treaty 3 First Nations.  Such dialogue
    is key to achieving the goal of reconciliation.  As the Supreme Court stated in
Haida Nation v. British Columbia (Minister of Forests),
2004 SCC 73,
    [2004] 3 S.C.R. 511, at para. 32:

Reconciliation is not a final legal remedy in the usual sense.
    Rather, it is a process flowing from rights guaranteed by s. 35(1) of the
Constitution
    Act, 1982
.  This process of reconciliation flows from the Crowns duty of
    honourable dealing toward Aboriginal peoples, which arises in turn from the
    Crowns assertion of sovereignty over an Aboriginal people and
de facto
control of land and resources that were formerly in the control of that people.

[155]

For these
    reasons, we conclude that the trial judge erred in law in her interpretation of
    the taking up clause.

The trial judges factual findings

[156]

The trial
    judges conclusion that Ontario could not exercise the taking up clause without
    Canadas approval was largely based on certain factual findings. We have
    already explained why we find the trial judges interpretation of the taking up
    clause impossible to reconcile with the governing constitutional principles and
    the actual text of the clause. We will now consider the appellants contention
    that her factual findings are fundamentally flawed.

[157]

The trial
    judges key finding is expressed in a variety of ways in her judgment but
    perhaps the clearest statement is that found at para. 1454:

The Commissioners deliberately provided in the Harvesting
    Clause that in the event Ontario won the Boundary Dispute or a new province
    with s. 109 powers were formed under s. 3 of the
1871 Constitution Act
,
    authorization of "taking up" by Canada would be needed in addition to
    Ontario's or that new province's authorization under s. 109. In that event, the
    Commissioners
did
contemplate and
intend that a two-step authorization process would need to be
    followed
. [Emphasis in original.]

[158]

We do not find
    it necessary to engage in a detailed consideration of the applicable standard
    of review. We will assume, without deciding, that the trial judges findings
    are properly characterized as findings of adjudicative fact and that they
    attract the deferential palpable and overriding error standard of review. We
    note, however, that as the trial judges findings of fact are mingled with her
    assessment of the effect of legislation and principles of treaty
    interpretation, there may be an argument that some or all of her findings
    attract a less deferential standard.

[159]

In our
    respectful view, the trial judges finding that a two-step authorization
    process had to be followed is wrong in both law and fact.

[160]

The Treaty was
    between the Crown and the Ojibway, not between Morris and the Ojibway. Even if
    Morriss intention was that found by the trial judge, without more, it is very
    difficult to see how Morriss subjective intention could have any impact upon
    the proper legal interpretation of the Treaty. While any representation Morris
    made would be significant, it was conceded by the respondents in oral argument that
    there is no evidence to suggest that Morris communicated to the Ojibway an
    intention to require Canadas approval of taking up by Ontario.

[161]

As the trial
    judge found, the Ojibway were no doubt concerned that the Treaty promises would
    be kept and they naturally looked to Canada, their Treaty partner, for that
    assurance. However, there is nothing in the record to suggest that there was
    any representation made to the Ojibway that the taking up clause would be
    subject to a process requiring the approval of two levels of government. And as
    held in
St. Catherines Milling,
Morris could not, as a Commissioner,
    remove Treaty 3 from the reach of the constitution as it stood in 1873 and as
    it evolved in the years following.

[162]

Moreover, the
    trial judges factual finding as to Morriss intention is not only speculative
    but also inconsistent with the available evidence. It runs afoul the admonition
    in
Mitchell v. M.N.R.,
2001 SCC 33, [2001] 1 S.C.R. 911, at para. 51,
    that [s]parse, doubtful and equivocal evidence cannot serve as the foundation
    for a successful claim and that findings based on the application of a very
    relaxed standard of proof and an unreasonably generous weighing of tenuous
    evidence will be set aside. We conclude that the finding is based on a
    palpable and overriding error and that it must be set aside. We arrive at that
    conclusion for the following reasons.

[163]

As we have
    observed, the Treaty 3 negotiations were very well-documented. Morris himself
    wrote extensively on the negotiation of Treaty 3 and other treaties. There is
    nothing in this thorough documentation, which includes his reports and
    correspondence on his treaty-making activities, to support the thesis that
    Morris intentionally drafted the harvesting clause to require Canadas approval
    for Ontarios taking up should Ontario become the beneficial owner of the
    lands.

[164]

The trial judge
    placed significant emphasis on the fact that Morris, a lawyer, former judge,
    and long-time confidant of Sir John A. Macdonald, was a trained constitutional
    lawyer and had a sophisticated understanding of the governing legal principles.
    In our view, Morriss legal background detracts from rather than supports the
    trial judges findings, because it is very difficult to reconcile the actual
    text of the harvesting clause with the trial judges finding. It is difficult
    to imagine how or why an expert constitutional lawyer would have drafted the
    clause as he did had his intention been as described by the trial judge.

[165]

The most likely
    explanation for the text of the harvesting clause and the reference to the Government
    of the Dominion of Canada is that, in 1873, there was no other government to
    whom the Commissioners appointed by Canada could conceivably refer. As
    explained above, the Keewatin Lands were unquestionably not in Ontario, and
    Canada vigorously contested Ontarios claim to the Disputed Territory. Prime
    Minister Macdonald refused to accept the arbitrators boundary award in 1878
    and would not yield until the Privy Council ruled in Ontarios favour in 1884.
    Even then, Prime Minister Macdonald continued to assert Canadas proprietary
    claim to the lands until it was rejected by the Privy Council in
St.
    Catherines Milling
.

[166]

Morris was sent
    as Prime Minister Macdonalds confidant to negotiate the Treaty and he was very
    close to the Prime Minister. It is highly unlikely he would have done anything
    that would have undermined Prime Minister Macdonalds position on the Disputed Territory.
    To recognize in the language of the Treaty the possibility that all or part of
    the Treaty 3 lands might belong to Ontario would be inconsistent with and would
    undermine Prime Minister Macdonalds position.

[167]

The trial
    judges interpretation is also inconsistent with the available evidence as to
    the contemporary understanding of the harvesting clause. As described above, within
    a year of the signing of the Treaty, Canada and Ontario entered into the 1874
Provisional
    Boundary Agreement
to deal with the administration of the Treaty lands
    pending settlement of the boundary dispute by way of arbitration. This
    agreement was possible because Macdonald had left office and the Mackenzie
    government, which came to power in early 1874, was willing to submit the
    dispute to arbitration.

[168]

The agreement
    provided that Ontario would grant patents for lands east and south of the
    provisional boundary and that Canada would grant patents for the western and
    northern portion of the lands. It was also agreed that if the provisional
    boundary were subsequently determined to be wrong, the government found to have
    jurisdiction over the lands would ratify any patents that had been issued by
    the other government.

[169]

Plainly, the
    1874 agreement reflects a contemporary understanding that the right to take up
    lands attached to the level of government that enjoyed beneficial ownership of
    the lands. There is no reference to any requirement that Ontario obtain
    Canadas approval for taking up lands.

[170]

As we will
    discuss in detail below, the 1891 Legislation and 1894 Agreement, which confirm
    Ontarios power to take up lands, are also very revealing as to the
    contemporary understanding.

[171]

Another point
    that tells against the trial judges finding is that until this case was
    commenced, there was no suggestion that Ontario had to obtain Canadas approval
    to access the taking up clause. The precise details of settlement, lumbering
    and mining activities and their impact on Aboriginal harvesting are sparse.
    However, it cannot be doubted that in the more than 100 years since the
    Keewatin Lands became part of Ontario, lands have been taken up by Ontario for
    those purposes without any suggestion that Ontario required Canadas approval
    or that Treaty 3 mandated a two-step land use regime.

[172]

For these
    reasons, we conclude that the trial judges factual finding that the Commissioners
    deliberately contemplated and intended a two-step authorization process and
    that Canada would have to authorize taking up by Ontario cannot survive
    scrutiny even under the deferential palpable and overriding error standard.

2.  Did the trial judge err in her interpretation of the 1891
    Legislation, the 1894 Agreement and the 1912 Legislation?

[173]

As previously
    noted, the trial judge found that while Ontario did not have the right to take
    up pursuant to Treaty 3 as a result of the operation of law, the 1891
    Legislation and the 1894 Agreement expressly amended Treaty 3 so as to give
    Ontario the unilateral right to take up in the Disputed Territory.  In her
    view, the 1912 Legislation  considered alone or in combination with the 1891
    Legislation and the 1894 Agreement  did not give Ontario that right in respect
    of the Keewatin Lands. Accordingly, she held that Ontarios power to take up
    Keewatin Lands is subject to Canadas supervision and authorization.

[174]

In our view, the
    1891 Legislation and the 1894 Agreement merely confirmed Ontarios right to
    take up under Treaty 3 without Canadas approval or permission in the Disputed
    Territory. We are further of the view that once the Keewatin Lands became part
    of Ontario in 1912, Ontario stepped into the shoes of Canada for the purposes
    of Treaty 3s harvesting clause in the Keewatin Lands.

Confirmation of Ontarios existing right

[175]

The 1891
    Legislation is reciprocal legislation authorizing Canada and Ontario to enter
    into an agreement relating to the Treaty 3 lands.  The 1891 Legislation
    includes a Schedule containing a draft agreement which declares that the Aboriginal
    hunting and fishing rights in the Disputed Territory do not continue for tracts
    of land that have been, or will be, taken up by Ontario.  It provides that the
    draft agreement, if and when concluded, would be binding on Canada and Ontario
    as if it were itself set out in an Act of Parliament or the Ontario
    legislature.

[176]

The draft
    agreement was subsequently executed by both governments, at which point it
    became the 1894 Agreement.  Having been concluded under the reciprocal
    legislation of 1891, the 1894 Agreement has the force of legislation.

[177]

It is apparent
    from the content of the 1894 Agreement that its two principal purposes were:
    (1) to obtain Ontarios concurrence in the selection of reserve lands; and (2) to
    confirm, in respect of the harvesting rights identified in Treaty 3, that
    Ontario could take up Treaty 3 lands within its territorial boundaries as those
    stood in 1894. In this regard, we note that the preamble of a statute shall be
    read as a part of the enactment intended to assist in explaining the statutes
    purport and object:
Interpretation Act,
R.S.C. 1985, c. I-21, s. 13.

[178]

The relevant
    provisions of the 1894 Agreement read as follows:

Whereas by Articles of [Treaty 3] , the Saulteaux
    tribe of the Ojibbeway Indians and all other the Indians inhabiting the country
    therein defined and described surrendered to Her Majesty all their rights,
    titles and privileges whatsoever to the lands therein defined and described on
    certain terms and considerations therein mentioned:

And whereas by the said treaty, out of the lands so
    surrendered, reserves were to be selected and laid aside for the benefit of the
    said Indians; and the said Indians were amongst other things hereinafter
    provided to have the right to pursue their avocations of hunting and fishing
    throughout the tract surrendered, subject to such regulations as might, from
    time to time, be made by the Government of the Dominion of Canada, and saving
    and excepting such tracts as might, from time to time, be required or taken up
    for settlement, mining, lumbering or other purposes by the said Government of
    the Dominion of Canada or by any of the subjects thereof duly authorized
    therefor by the said Government:

And whereas the true boundaries of Ontario have since
    been ascertained and declared to include part of the territory surrendered by
    the said treaty, and other territory north of the height of land with respect
    to which Indians are understood to make a claim as being occupants thereof,
    according to their mode of occupying, and as not having yet surrendered their claim
    thereto or interest therein  .

1.       With respect to the tracts to be, from time to time,
    taken up for settlement, mining, lumbering or other purposes and to the
    regulations required in that behalf, as in the said treaty mentioned,
it is
    hereby conceded and declared that, as the Crown lands in the surrendered tract
    have been decided to belong to the Province of Ontario
, or to Her Majesty
    in right of the said Province,
the rights of hunting and fishing by the
    Indians throughout the tract surrendered
, not including the reserves to be
    made thereunder
, do not continue with reference to any tracts which have
    been, or from time to time may be, required or taken up for settlement, mining,
    lumbering or other purposes by the Government of Ontario or persons duly authorized
    by the said Government of Ontario;
and that the concurrence of the
    Province of Ontario is required in the selection of the said reserves.
    [Emphasis added.]

[179]

Article 1 of the 1894 Agreement was clearly intended to confirm
    Ontarios right to take up in the Disputed Territory, and to recognize that
    such uses could be inconsistent with continued harvesting rights.  In referring
    to
Ontarios right, article 1 says that it is conceded and declared.
    These words demonstrate that Canada and Ontario were confirming in the 1894
    Agreement that which had already come to pass by operation of law.

[180]

Accordingly, it
    is our view that article 1 of the 1894 Agreement explicitly declared and
    confirmed that the Treaty 3 regime operated in conformity with the law: Ontario,
    the government with the administration, control and beneficial ownership of the
    Disputed Territory, was the government with the exclusive authority to exercise
    the taking up power in Treaty 3.

[181]

We would note
    that because the 1894 Agreement is confirmatory of Ontarios right, it did not,
    as the trial judge found, amend Treaty 3.

Application of the 1894 Agreement after 1912

[182]

Given our
    analysis of the doctrine of constitutional evolution and the 1894 Agreement, it
    follows as a matter of law that in 1912, when legislation extended to their
    present dimensions the territorial boundaries of the province of Ontario,
    subject to certain terms and conditions, Ontario was, by operation of law,
    entitled to exercise the taking up power under Treaty 3 in relation to the
    Keewatin Lands. However, as both the trial judge and the parties devoted
    considerable attention to the issue, we provide the following fuller
    explanation of the application of the 1894 Agreement after 1912.

[183]

Parliament
    enacted the legislation extending Ontarios boundary on April 1, 1912. To be
    effective, such legislation required the consent of the Ontario legislature. Accordingly,
    on April 16, 1912, the Ontario legislature enacted legislation consenting to
    the enlargement of the provinces boundaries and agreeing to the terms and
    conditions.

[184]

The 1912
    Legislation (federal and provincial), and the Ontario boundary extension, took
    effect on May 15, 1912. In the result, a substantial portion of the tract of
    land previously known as the District of Keewatin in the North-West Territories
    became part of the province of Ontario. The Keewatin Lands are a part of the
    annexed tract.

[185]

The 1912
    Legislation increased Ontarios boundaries to include the Keewatin Lands upon
    the following terms and conditions:

2.       (a) That the province of Ontario will
    recognize the rights of the Indian inhabitants in the territory above described
    to the same extent, and will obtain surrenders of such rights in the same
    manner, as the Government of Canada has heretofore recognized such rights and
    has obtained surrender thereof, and the said province shall bear and satisfy
    all charges and expenditures in connection with or arising out of such
    surrenders;

(b)
    That no such surrender shall be made or obtained except with the approval of the
    Governor in Council;

(c) That the trusteeship of the Indians
    in the said territory, and the management of any lands now or hereafter
    reserved for their use, shall remain in the Government of Canada subject to the
    control of Parliament.

[186]

The 1912 Legislation
    did not expressly confirm Ontarios right to take up in the Keewatin Lands, as
    article 1 of the 1894 Agreement had done in respect of the Disputed Territory.
    As this right flowed by operation of law, it was unnecessary to confirm that
    right.

[187]

In any event, we
    are of the view that the text of the 1894 Agreement is entirely consistent with
    our conclusion that article 1 applied to the Keewatin Lands on and after May
    15, 1912.

[188]

As we have seen,
    a principal purpose of the 1894 Agreement was to confirm, in respect of the
    harvesting rights identified in Treaty 3, provincial (or provincially-authorized)
    taking up activity within Ontarios territorial boundaries as those stood in
    1894.

[189]

As of May 15,
    1912, the government of Ontario acquired in respect of ceded Keewatin Lands the
    same constitutional and proprietary capacity it had previously to take up (or
    to authorize the taking up) of ceded Treaty 3 lands within its boundaries.
    Nothing in the operative text of article 1 of the 1894 Agreement purports to
    differentiate between Treaty 3 lands that lay within Ontarios original
    boundaries and other Treaty 3 lands that might subsequently become Crown lands
    in Ontario. The language of article 1, with Canadas concession and declaration
    as to Ontarios authority, is entirely consistent with provincial taking up
    activity in and after 1912 in respect of the Keewatin Lands.

[190]

Furthermore,
    article 1 of the 1894 Agreement gives as the reason for Canadas concession and
    declaration in respect of provincial taking up and Treaty 3 harvesting rights,
    the fact that the Crown lands in the surrendered tract have been decided to
    belong to the Province of Ontario. It is common ground that not all the Crown
    lands in the surrendered tract belonged to Ontario in 1894  the Keewatin
    Lands did not, nor did Treaty 3 lands in Manitoba.

[191]

The effect of
    the 1912 Legislation on Ontarios boundaries was to stipulate that the
    unpatented Keewatin Lands, along with other lands from the former District of
    Keewatin, belonged to the province of Ontario. Thus, as of 1912, the rationale
    expressly offered for Canadas concession and declaration in article 1 of the
    1894 Agreement applied with equal force to the Keewatin Lands.

[192]

Therefore, the text
    of, and rationale for, the 1894 Agreement are both consonant with our view that
    provincial (or provincially-authorized) taking up activity in respect of the
    Keewatin Lands in and after 1912 was effective, pursuant to article 1 of the
    1894 Agreement, in relation to Treaty 3 harvesting rights.

Interpretation of the 1912 Legislation

[193]

Three principles
    of statutory interpretation reinforce our view that it was unnecessary for the
    1912 Legislation to contain similar language to that in article 1 of the 1894
    Agreement.

[194]

The first
    presumes a harmony, coherence and consistency between statutes dealing with
    the same subject matter: see
R. v. Ulybel Enterprises Ltd.
, 2001 SCC
    56, [2001] 2 S.C.R. 867, at para. 52. This principle, often referred to as the
in
    pari materia
principle, was recently reaffirmed by the Supreme Court of
    Canada in
Sharbern Holding Inc. v. Vancouver Airport Centre Ltd.
, 2011
    SCC 23, [2011] 2 S.C.R. 175. In that case, as in the present one, the court was
    considering successor related legislation. At para. 117, the Supreme Court said
    this:

Lord Mansfield explained this principle in
R. v. Loxdale
(1758),
    1 Burr. 445, 97 E.R. 394, observing that [w]here there are different statutes
in
    pari materia
though made at different times, or even expired  they shall
    be taken and construed together  and as explanatory of each other (p. 395).

[195]

The second principle
    of statutory interpretation is the presumption that the legislature does not
    intend to produce absurd consequences: see
Rizzo & Rizzo Shoes Ltd.
    (Re)
, [1998] 1 S.C.R. 27, at para. 27. To interpret the 1912 Legislation
    so that the Keewatin Lands were not subject to Ontarios unsupervised
    jurisdiction would create a clear inconsistency with the 1891 Legislation. The
    result would be that different parts of the Treaty 3 lands would be subject to
    different regimes for the purposes of taking up. Indeed, there would be
    inconsistent treatment of the Treaty 3 lands used by members of the Grassy
    Narrows First Nation, some of which fall within the Keewatin Lands and others
    of which do not. Our view of the Legislation avoids these undesirable and
    absurd consequences.

[196]

The third is the
    interpretive maxim that the law shall be considered as always speaking. Legislative
    provisions are not bound to the historic state of affairs at the time of their
    enactment. As the Supreme Court stated in
R. v. 974649 Ontario Inc.,
2001
    SCC 81, [2001] 3 S.C.R. 575
,
at para. 38:

The intention of Parliament or the legislatures is not frozen
    for all time at the moment of a statutes enactment, such that a court
    interpreting the statute is forever confined to the meanings and circumstances
    that governed on that day.  Such an approach risks frustrating the very purpose
    of the legislation by rendering it incapable of responding to the inevitability
    of changing circumstances.

[197]

Finally,
    and very importantly, we would reiterate that our view of the 1912 Legislation
    accords with constitutional law dictates. At the moment that the Keewatin Lands
    became part of Ontario, the
Constitution Act, 1867,
s. 109 applied and
    Ontario gained beneficial ownership of the lands unencumbered by any operation
    of s. 91(24): see
Smith v. The Queen,
at para. 246. Upon the transfer
    of the beneficial interest in the Crowns underlying title to
Ontario,
    by operation of law, the Crowns rights and obligations devolved to Ontario as
    well.  I
t would have taken clear and express language in the 1912
    Legislation for Canada to extend Ontarios boundaries to encompass the Keewatin
    Lands but at the same time purport to withhold an essential incident of
    administration and control (i.e. the taking up provision) over those lands. In
    our view, the terms and conditions in the 1912 Legislation do not amount to
    such language.

[198]

Section 2(a) of the 1912 Legislation requires Ontario to recognize
    the rights of the Indians in the Keewatin Lands to the same extent that Canada
    had theretofore recognized such rights. That is, Ontario is to stand in
    Canadas shoes for the purposes of recognizing the rights of First Nations in
    the Keewatin Lands. This
condition
contemplates,
    therefore, that Ontario could take up Keewatin Lands under the Treaty only to
    the same extent that Canada could validly do so prior to 1912. In light of
    modern constitutional jurisprudence, this means that Ontarios taking up power
    is subject to the limitations and obligations flowing from the honour of the
    Crown and s. 35 of the
Constitution Act, 1982
.
    These obligations and limitations are discussed below.

[199]

Section 2(c) reserves to Canada the trusteeship of the Indians in
    the said territory. There is nothing in this language that precludes Ontario
    from having the same ability that Canada previously had to take up Keewatin
    Lands. Moreover, and particularly in light of s. 2(a), it would torture the
    language of s. 2(c) to interpret it as creating or retaining a role for Canada
    in Ontarios exercise of the taking up provision in respect of off-reserve,
    Treaty 3 ceded lands.

[200]

Finally, this view of the 1891 Legislation, the 1894 Agreement and
    the 1912 Legislation, which holds that Ontario has exclusive jurisdiction to
    administer ceded off-reserve lands for its sole benefit, was acknowledged in
    further legislation passed by Parliament and the Ontario legislature in 1924.
    The reciprocal acts making up
The Indian Lands Act, 1924
, S.C. 1924, c. 48, Schedule 1; S.O. 1924, c. 15, Schedule A, deal
    primarily with reserves. However, their preambles confirm a continuing
    understanding that only Ontario administers ceded off-reserve treaty lands.

3.  Does Ontarios use of the taking up clause, short of
    infringement, engage s. 91(24)?

[201]

The trial judge
    concluded that Ontarios right to take up in the Keewatin Lands was subject to
    Canadas approval. We have already considered and rejected the main reason she
    gave for arriving at that conclusion, namely that the Treaty expressly provided
    for a two-step authorization process. We turn here to a second reason she
    offered, specifically that  Canadas s. 91(24) jurisdiction over Indians gives Canada
    a residual and continuing role in respect of Ontarios use of the taking up
    provision.

[202]

In our view, the
    trial judges conclusion rests on three errors. First, in viewing provincial
    land ownership as being qualified by federal jurisdiction over Indians, the
    trial judge erred with respect to the division of powers. Second, her
    conclusion cannot be reconciled with
St. Catherines Milling
and
Smith
,
    both of which are binding. Third, the trial judges conclusion that Canada has ongoing
    supervisory authority over Ontarios exercise of the taking up provision is inconsistent
    with
Mikisew.

[203]

We have fully canvassed
    the first two points in our earlier discussion of the constitutional framework
    and the process of constitutional evolution that took place when Ontarios
    boundary expanded to include the Keewatin Lands.

[204]

The trial judge
    appears to consider that federal jurisdiction over treaty rights, which
    properly comes within s. 91(24) jurisdiction, encompasses a continuing role for
    Canada in respect of the taking up of lands for provincial purposes in lands
    ceded by treaty.

[205]

With respect, such
    an expansion of s. 91(24) jurisdiction would render illusory provincial
    jurisdiction over the disposition and management of public lands and forests
    under ss. 109, 92(5) and 92A. As we have already explained, this would be
    contrary to the decision of the Privy Council in
St. Catherines Milling
and
    that of the Supreme Court of Canada in
Smith
. It would also be
    contrary to the Supreme Courts emphasis on balanced federalism and the
    interdiction that a federal head of power cannot be given a scope that would
    eviscerate a provincial legislative competence: see
Reference Re
    Securities Act
, 2011 SCC 66, [2011] 3 S.C.R. 837, at para. 71.

[206]

Turning to
Mikisew,
the trial judges conclusion that Canada has a residual s. 91(24)
    supervisory authority over Ontarios use of the taking up clause is at odds
    with the principles set out by the Supreme Court of Canada in that case.

[207]

It is important
    to distinguish between a provincial taking up that would leave no meaningful harvesting
    right in a First Nations traditional territories from a taking up that would have
    a lesser impact than that. The former would infringe the First Nations treaty
    rights, whereas the latter would not. Where it is claimed that a taking up will
    infringe a treaty right,
Mikisew
makes it clear that the remedy is to
    bring an action for treaty infringement: see para. 48. An action for
    infringement does not engage Canada in a supervisory role.

[208]

Mikisew
also explains the process that must be followed by a governmental entity seeking
    to take up surrendered lands, short of infringement.

[209]

To uphold the
    honour of the Crown, the governmental entity must first inform itself of the
    degree to which the contemplated conduct would adversely affect the Aboriginal
    peoples right to hunt, fish and trap and whether that triggers the duty to
    consult. It must communicate its findings to the affected Aboriginal peoples. It
    must attempt to deal with First Nations in good faith and with the intention of
    substantially addressing their concerns. The duty to consult is triggered at a
    low threshold but adverse impact is a matter of degree, as is the extent of the
    content of the governmental entitys duty to consult and accommodate.

[210]

Ontario, as the
    emanation of the Crown holding the beneficial ownership of the public lands
    ceded by Treaty 3, is required to respect Treaty 3 harvesting rights. Its s.
    109 powers are subject to Aboriginal harvesting rights.

[211]

Ontario must
    respect those rights and manage changes to them in accordance with the honour
    of the Crown and s. 35 of the
Constitution Act, 1982
. Ontario cannot
    take up lands so as to deprive the First Nation signatories of a meaningful
    right to harvest in their traditional territories. Further, honourable
    management requires that Ontario, as the government with authority to take up in
    the Keewatin Lands, must consult with First Nations and accommodate their
    treaty rights whenever they are sufficiently impacted by the taking up. As
    noted above, Ontario accepts these constitutional obligations.

[212]

These
    significant protections, grounded in the honour of the Crown and s. 35 of the
Constitution
    Act, 1982
, revolve around direct interaction between Ontario and the First
    Nation signatories. They do not contemplate the involvement of an additional
    level of government. In other words, Ontario is not subject to federal
    supervision in carrying out its obligations.

Issues related to Question Two

1.  Does inter-jurisdictional immunity apply and can Ontario
    resort to a
Sparrow
justification?

[213]

It will be
    recalled that the second threshold question was:

Question Two: If the answer to question/issue 1 is no, does
    Ontario have the authority pursuant to the division of powers between
    Parliament and the legislatures under the
Constitution Act, 1867
to
    justifiably infringe the rights of the plaintiffs to hunt and fish as provided
    for in Treaty 3?

[214]

The trial judge
    answered this question in the negative. She held that Ontario is constrained by
    the division of powers and that Canada, using its s. 91(24) jurisdiction, can make
    treaty promises that affect Ontarios proprietary interests. She went on to
    hold that the doctrine of inter-jurisdictional immunity applied. The result, in
    her view, was that as treaty-protected harvesting rights are at the core of the
    federal governments s. 91(24) jurisdiction, Ontario cannot interfere with them
    unless allowed to do so under s. 88 of the
Indian Act
, R.S.C. 1985, c.
    I-5. She then concluded that s. 88 could have no application as in the
    circumstances of this proceeding, provincial law cannot displace treaty rights.

[215]

By its terms,
    the court is to answer the second threshold question only if it answered the
    first threshold question in the negative. Accordingly, having answered the
    first threshold question affirmatively, there is no need to consider the second
    threshold issue. We wish to note, however, that nothing in these reasons should
    be construed as approval of the trial judges reasoning or result in respect of
    the second threshold issue.

G.

THE INTERVENERS ISSUES

[216]

As explained
    above, five First Nations, or groups thereof, intervened in these appeals:
    Wabauskang, the Big Grassy interveners, the Grand Council of Treaty #3, Lac
    Seul, and the Treaty 6 interveners.

[217]

The interveners
    brought helpful perspectives to these appeals and their submissions informed
    the foregoing analysis. In this section, we address the discrete issues raised
    by those submissions.

Wabauskang, Big Grassy interveners and Grand Council of Treaty
    #3

[218]

Each of
    Wabauskang, the Big Grassy interveners and the Grand Council of Treaty #3 raise
    issues about the scope of the trial judges pronouncements. They urge this
    court to find that certain aspects of her reasons are
obiter dicta
and,
    therefore, not binding. Together, their submissions raise the following three
    issues.

[219]

First, they
    submit that the trial judges statements on Ontarios right, pursuant to the
    1891 Legislation and the 1894 Agreement, to exercise the taking up power in the
    Disputed Territory, are
obiter dicta
. While they support the trial
    judges finding that there was no evidence that Canada intended the 1891
    Legislation or the 1894 Agreement to apply to the Keewatin Lands, they submit
    that it was unnecessary for the trial judge to consider the effect of that Legislation
    and Agreement on Treaty 3 harvesting rights outside of the Keewatin Lands.
    They point out that the threshold questions are limited to the Keewatin Lands
    and that the respondents sought no determination in respect of the lands in the
    Disputed Territory. Further, they stress, the trial judge did not hear
    submissions on the importance or legal status of harvesting rights in the
    Disputed Territory and that this court should be cautious when interpreting
    instruments to the detriment of third parties to the proceedings.

[220]

We appreciate
    this concern of these interveners, particularly as they were not present at the
    trial to provide their perspective and make submissions on the effect of the
    1891 Legislation and the 1894 Agreement on the Disputed Territory. However, we
    do not accept that the trial judges statements relating to the scope and
    effect of those instruments were
obiter dicta
.

[221]

A central
    question before the trial judge was whether the 1891 Legislation and the 1894
    Agreement empowered Ontario to take up tracts in the Keewatin Lands. While the
    respondents did not seek a determination of the legal effect of the 1891
    Legislation south of the English River in the Disputed Territory, that was the
    land to which the Legislation and Agreement applied when it was drafted and
    enacted. Because the respondents took the position that the Legislation and Agreement
    did not apply to the Keewatin Lands, the interpretation of those instruments
    was squarely before the trial judge and had to be decided in order to answer
    the first threshold question. Her interpretation of those instruments was both
    necessary and relevant to the issues before her. Therefore, her comments are
    not
obiter dicta
.

[222]

While we do not
    agree with the trial judges analysis of the 1891

Legislation and the 1894
    Agreement, we do agree with her conclusion on their legal effect in respect of
    the Disputed Territory. As we have explained, in our view, Ontarios right to
    take up tracts in the Keewatin Lands flows from the constitutional framework,
    as interpreted by the Privy Council in
St. Catherines Milling
. The 1891
    Legislation

and the 1894 Agreement

merely confirm that
    right.  Our conclusions in this matter apply to all of the Treaty 3 lands
    within Ontarios boundaries, including the Disputed Territory.

[223]

Second, these
    interveners submit that the trial judges statements that Treaty 3 was amended
    by the 1891 Legislation and the 1894 Agreement so as to extinguish Aboriginal
    harvesting rights in the Disputed Territory are
obiter dicta
and
    erroneous. They say that the evidentiary record before the trial judge
    regarding the 1891 Legislation and the 1894 Agreement was inadequate to decide
    that their constitutionally-protected treaty rights had been extinguished.

[224]

We agree. The
    issue of the possible extinguishment of the interveners Treaty 3 harvesting
    rights in the Disputed Territory was not before the trial judge. Her statements
    on this matter are
obiter dicta
and, on that basis alone, are not
    binding.

[225]

Furthermore,
    given the importance of Aboriginal constitutional rights and the onus on the
    Crown to act honourably, courts should proceed with caution in the matter of
    extinguishment.  Findings of extinguishment should only be made when squarely
    raised, absolutely necessary, and after a thorough assessment of an adequate
    record. None of these conditions is met in the present proceeding.  Neither
    Ontario nor Canada alleged, or sought to prove, that the 1891 Legislation or
    the 1894 Agreement extinguished Aboriginal harvesting rights.

[226]

We would
    conclude this point by observing that in
Mikisew
the Supreme Court
    considered a very similar Treaty 8 taking up clause and its effect on Aboriginal
    harvesting rights and, at para. 31, makes clear that not every taking up
    constitutes an infringement of treaty rights that must be justified according
    to
Sparrow
. Put another way, the taking up clause in Treaty 3 operates
    as a limit on treaty harvesting rights, not an extinguishment of such rights.

[227]

Third, these
    interveners submit that statements made by the trial judge concerning the legal
    status of Treaty 3 reserve lands prior to 1915 are
obiter dicta
and
    unnecessary for the resolution of the issues at trial.  Further, they submit
    that the trial judges comments on the history of the treatment of the promised
    reserve lands following the signing of Treaty 3 do not appear to be supported
    by evidence and give an erroneous description of the history and legal status
    of the right to reserve lands, to the detriment of the Aboriginal beneficiaries
    of Treaty 3.

[228]

In
Ermineskin
    Indian Band and Nation v. Canada
, 2006 FCA 415, [2007] 3 F.C.R. 245, affd
    2009 SCC 9, [2009] 1 S.C.R. 222, a complex treaty action involving a phased
    trial, the Federal Court of Appeal found that certain conclusions of the lower
    court were not relevant to the claims made in that phase of the trial. After
    noting that the conclusions were
obiter
, it declined to express an
    opinion of the correctness of those conclusions.

[229]

We come to the
    same conclusion in this case. It was unnecessary for the trial judge to make
    statements concerning the legal status of Treaty 3 reserves prior to 1915. Those
    matters were not in issue and their resolution was not necessary for the proper
    adjudication of the claims before her. Accordingly, the trial judges comments
    regarding Treaty 3 reserve lands are
obiter dicta
and nothing in these
    reasons should be taken as suggesting that those comments are correct.

Lac Seul

[230]

Lac Seul seeks
    negative answers to the two threshold questions based on submissions relating
    to the honour of the Crown and its duty to consult all affected First Nations.
    It contends that both Ontario and Canada should be required to engage in
    consultation with all affected First Nations regarding Canadas involvement in
    the taking up of Keewatin Lands. Lac Seul emphasizes that consultation and
    negotiation are the preferable methods by which to reconcile state and
    Aboriginal interests, and stresses that the duty to consult should not be
    avoided by bringing legal action.

[231]

We agree that
    the honour of the Crown, the duty to consult and the process of reconciliation
    are foundational principles at play in this proceeding. They are specifically
    addressed in a number of parts of the foregoing discussion. However, we decline
    to accede to any suggestion that this proceeding be stayed or adjourned until
    consultation has taken place, as these appeals are properly before us.

The Treaty 6 interveners

[232]

The Treaty 6
    interveners provided their perspective with respect to the negotiation and
    formation of Treaty 6. The tracts of lands covered by Treaty 6, which was
    signed in 1876, constitute much of central Alberta and Saskatchewan. The taking
    up clause in Treaty 6 is identical to that in Treaty 3.

[233]

After
    identifying other similarities between Treaty 3 and Treaty 6, the Treaty 6
    interveners made submissions based on a comparison of s. 1 of the
Natural
    Resources Transfer Agreement, 1930
,

being Schedule 2 (Alberta)
    and Schedule 3 (Saskatchewan) to the
Constitution Act, 1867 (NRTA)
with
    s. 109 of the
Constitution Act, 1867.
We do not propose to comment on
    the
NRTA
as it is unnecessary for the resolution of these appeals.

H.

DISPOSITION

[234]

Accordingly, the
    appeals are allowed. The answer to Question One is yes. It is not necessary
    to answer Question Two.

[235]

Ontario and
    Canada shall pay the respondents costs of the appeals, on a partial indemnity
    basis, in accordance with the terms of this courts order dated December 7,
    2012. With the exception of Wabauskang, the interveners are neither liable for
    nor entitled to costs of the appeals.

[236]

Wabauskang was
    given party intervener status because their Aboriginal rights are directly
    affected by the judgment under appeal.  Its position is very similar to that of
    the respondents. The reasons given for ordering costs in favour of the
    respondents apply to Wabauskang as well. Therefore, we order reasonable costs
    of the appeals to Wabauskang on a partial indemnity basis.  Should Canada,
    Ontario and Wabauskang be unable to agree on the quantum of costs, they may
    return to the court for assistance.

[237]

We thank all
    counsel for their excellent submissions.

Robert J. Sharpe J.A.

E.E.
    Gillese J.A.

R.G. Juriansz J.A.

Released: March 18, 2013

APPENDIX A

THE NORTH WEST ANGLE TREATY, NUMBER
    THREE

October 3, 1873

Articles of a Treaty made and concluded this third day of
    October in the year of our Lord one thousand eight hundred and seventy-three,
    between Her Most Gracious Majesty the Queen of Great Britain and Ireland by her
    Commissioners, the Honorable Alexander Morris, Lieutenant-Governor of the
    Province of Manitoba and the North West Territories, Joseph Albert Norbert
    Provencher and Simon James Dawson of the one part and the Saulteaux Tribe of
    the Ojibbeway Indians, inhabitants of the country within the limits hereinafter
    defined and described, by their Chiefs chosen and named as hereinafter
    mentioned, of the other part.-

Whereas the Indians inhabiting the said country have,
    pursuant to an appointment made by the said Commissioners been convened at a
    meeting at the North West Angle of the Lake of the Woods to deliberate upon
    certain matters of interest to Her Most Gracious Majesty of the one part and
    the said Indians of the other. -

And Whereas the said Indians have been notified and
    informed by Her Majestys said Commissioners that it is the desire of Her
    Majesty to open up for settlement, immigration, and such other purpose as to
    Her Majesty may seem meet a tract of country bounded and described as
    hereinafter mentioned and to obtain the consent thereto of her Indian subjects
    inhabiting the said tract and to make a Treaty and arrange with them, so that
    there may be peace and good will between them and Her Majesty, and that they
    may know and be assured of what allowance they are to count upon and receive
    from Her Majestys bounty and benevolence. -

And Whereas, the Indians of the said tract duly
    convened in Council as aforesaid and being requested by Her Majestys said
    Commissioners to name certain Chiefs and headmen who should be authorized on
    their behalf to conduct such negotiations and sign any Treaty to be founded
    thereon and to become responsible to Her Majesty for the faithful performance
    by their respective bands of such obligations as shall be assumed by them the
    said Indians have thereupon named the following persons for that purpose that
    is to say: - Kee-ta-Kay-pi-nais (Rainy River), Kitchi-gay-kake (Rainy River),
    No-te-na-qua-hung (North West Angle), Mawe-do-pe-ness (Rainy River),
    Pow-wa-sang (North-West Angle), Canda-com-igo-we-ninie (North West Angle),
    Pa-pa-sko-gin (Rainy River), May-no-wah-tau-ways-kung (North-West Angle), Kitche-ne-ka-be-han
    (Rainy River), Sah-katch-eway (Lake Seul), Muka-day-wah-sin (Kettle Falls),
    Me-kie-sies (Rainy Lake, Fort Francis), Oos-con-na-geish (Rainy Lake),
    Wah-shis-konce (Eagle Lake), Kah-kee-y-ash (Flower Lake), Go-bay (Rainy Lake),
    Ka-me-ti-ash (White Fish Lake), Nee-sho-tal (Rainy River), Kee-je-go-kay (Rainy
    River), Sha-sha-gance (Shoal Lake), Shah-win-na-bi-nais (Shoal Lake),
    Ay-ash-a-wash (Buffalo Point), Pay-ah-bee-wash (White Fish Bay), Kah-tay-tay-pa-a-cutch
    (Lake of the Woods).

And thereupon in open Council the different Bands
    having presented their Chiefs to the said Commissioners as the Chiefs and Headmen
    for the purposes aforesaid of the respective Bands of Indians inhabiting the
    said District hereinafter described. And Whereas the said Commissioners then
    and there received and acknowledged the persons so presented as Chiefs and Headmen
    for the purposes aforesaid of the respective Bands of Indians inhabiting the
    said District hereinafter described;

And Whereas the said Commissioners have proceeded to
    negotiate a Treaty with the said Indians, and the same has been finally agreed
    upon and concluded as follows, that is to say:-

The Saulteaux Tribe of the Ojibbeway Indians and all
    other the Indians inhabiting the district hereinafter described and defined, do
    hereby cede, release, surrender, and yield up to the Government of the Dominion
    of Canada for Her Majesty the Queen and her successors forever, all their rights,
    titles and privileges whatsoever to the lands included within the following
    limits that is to say:-

Commencing at a point on the Pigeon River Route where
    the International Boundary Line between the Territories of Great Britain and
    the United States intersects the Height of Land separating the waters running
    to Lake Superior from those flowing to Lake Winnipeg; thence Northerly, Westerly,
    and Easterly, along the Height of Land aforesaid, following its sinuosities,
    whatever their course may be, to the point at which the said Height of Land
    meets the summit of watershed from which the streams flow to Lake Nepigon,
    thence Northerly and Westerly, or whatever may be its course along the ridge
    separating the waters of the Nepigon and the Winnipeg to the Height of Land
    dividing the waters of the Albany and the Winnipeg, thence Westerly and North-Westerly
    along the Height of Land dividing the waters flowing to Hudsons Bay by the
    Albany or other rivers from those running to English River and the Winnipeg to
    a point on the said Height of Land bearing North forty five degrees east from
    Fort Alexander at the mouth of the Winnipeg; thence south forty five degrees
    west to Fort Alexander at the mouth of the Winnipeg; thence Southerly along the
    Eastern bank of the Winnipeg to the mouth of White Mouth River; thence Southerly
    by the line described as in that part forming the Eastern boundary of the tract
    surrendered by the Chippewas and Swampy Cree Tribes of Indians to Her Majesty
    on the third of August, one thousand eight hundred and seventy one, namely; by
    White Mouth River to White Mouth Lake and thence on a line having the general
    bearing of White Mouth River to the forty ninth parallel of North Latitude;
    thence by the forty ninth parallel of Nnorth Latitude to the Lake of the Woods
    and from thence by the International Boundary Line to the place of beginning.

The tract comprised within the lines above described
    embracing an area of fifty five thousand square miles, be the same more or
    less.

To Have and to Hold the same to Her Majesty the Queen
    and her successors forever.

And Her Majesty the Queen hereby agrees and undertakes
    to lay aside reserves for farming lands due respect being had to lands at
    present cultivated by the said Indians and also to lay aside and reserves for
    the benefit of the said Indians to be administered and dealt with for them by
    Her Majestys Government of the Dominion of Canada in such a manner as shall
    seem best, other Reserves of land in the said Territory hereby ceded, which
    said Reserves shall be selected and set aside where it shall be deemed most
    convenient and advantageous for each Band or Bands of Indians, by the officers
    of the said Government appointed for that purposes, and such selection shall be
    so made after conference with the Indians; provided, however, that such reserve
    whether for farming or other purposes shall in nowise exceed in all one square
    mile for each family of five, or in that proportion for larger or smaller
    families and such selection shall be made if possible during the course of next
    summer or as soon thereafter as may be found practicable, it being understood,
    however, that if at the time of any such selection of any Reserves as
    aforesaid, there are any settlers within the bounds of the lands Reserved by
    any Band Her Majesty Reserves the right to deal with such settlers as she shall
    deem just so as not to diminish the extent of land allotted to Indians and
    provided also that the aforesaid Reserves of lands or any interest or right
    therein or appurtenant thereto, may be sold, leased or otherwise disposed of by
    the said Government for the use and benefit of the said Indians, with the
    consent of the Indians entitled thereto first had and obtained.

And with a view to show the satisfaction of Her Majesty
    with the behaviour and good conduct of her Indians, she hereby, through her
    Commissioners makes them a present of twelve dollars for each man, woman and
    child belonging to the Bands here represented in extinguishment of all claims
    heretofore preferred.

And further, Her Majesty agrees to maintain schools for
    instruction in such reserves hereby made as to her Government of her Dominion
    of Canada may seem advisable whenever the Indians of the reserve shall desire
    it.-

Her Majesty further agrees with her said Indians that
    within the boundary of Indian reserves, until otherwise determined by the
    Government of the Dominion of Canada, no intoxicating liquor shall be allowed
    to be introduced or sold and all laws now in force, or hereafter to be enacted
    to preserve Her Indian subjects inhabiting the reserves or living elsewhere
    within her North West Territories from the evil influence of the use of
    intoxicating liquors shall be strictly enforced.

Her Majesty further agrees with her said Indians, that
    they the said Indians shall have [the] right to pursue their avocations of
    hunting and fishing throughout the tract surrendered as hereinbefore described
    subject to such regulations as may from time to time be made by Her Government
    of Her Dominion of Canada and saving and excepting such tracts as may, from
    time to time, be required or taken up for settlement, mining, lumbering or
    other purposes by her said Government of the Dominion of Canada, or by any of
    the subjects thereof duly authorized therefor by the said Government.

It is further agreed between Her Majesty and her said
    Indians that such sections of the reserves above indicated as may at any time
    be required for Public Works or buildings of what nature soever may be
    appropriated for that purpose by Her Majestys Government of the Dominion of
    Canada, due compensation being made for the value of any improvements thereon.

And further that Her Majestys Commissioners shall as
    soon as possible after the execution of this Treaty, cause to be taken an
    accurate census of all the Indians inhabiting the Tract above described,
    distributing them in families, and shall in every year ensuing the date hereof
    at some period in each year, to be duly notified to the Indians, and at a place
    or places to be appointed for that purpose within the territory ceded, pay to
    each Indian person the sum of five dollars per head yearly.

It is further agreed between Her Majesty and the said
    Indians that the sum of fifteen hundred dollars per annum shall be yearly and
    every year expended by Her Majesty in the purchase of ammunition and twine for
    nets for the use of the said Indians.

It is further agreed between Her Majesty and the said
    Indians that the following articles shall be supplied to any Band of the said
    Indians who are now actually cultivating the soil or who shall hereafter
    commence to cultivate the land that is to say:  two hoes for every family
    actually cultivating also one spade per family as aforesaid, one plough for
    every ten families as aforesaid -- five harrows for every twenty families as
    aforesaid -- one scythe for every family as aforesaid,- and also one axe; and
    one cross-cut saw, one hand-saw, one pit saw, the necessary files, one
    grindstone, one auger for each band, and also for each Chief for the use of his
    band, one chest of ordinary carpenter tools; also for each band enough of
    wheat, barley, potatoes and oats to plant the land actually broken up for
    cultivation by such band also for each Band, one yoke of oxen, one bull and
    four cows; all the aforesaid articles to be given once for all for the
    encouragement of the practice of agriculture among the Indians.-

It is further agreed between Her Majesty and the said
    Indians that each Chief duly recognized as such shall receive an annual salary
    of twenty five dollars per annum and each subordinate officer not exceeding
    three for each Band shall receive fifteen dollars per annum; and each such
    Chief and subordinate officer as aforesaid shall also receive once in every
    three years a suitable suit of clothing; and each Chief shall receive in
    recognition of the closing of the Treaty a suitable flag and medal.

And the undersigned Chiefs, on their own behalf and on
    behalf of all other Indians inhabiting the tract within ceded, do hereby
    solemnly promise and engage, to strictly observe this Treaty, and also to
    conduct and behave themselves as good and loyal subjects of Her Majesty the
    Queen. They promise and engage that they will, in all respects, obey and abide
    by the law; that they will maintain peace and good order between each other,
    and also between themselves and other Tribes of Indians and between themselves
    and others of Her Majestys subjects, whether Indians or whites, now inhabiting
    or hereafter to inhabit any part of the said ceded tract; and that they will
    not molest the person or property of any inhabitant of such ceded tract, or the
    property of Her Majesty the Queen, or interfere with or trouble any person
    passing or travelling through the said tract or any part thereof; and that they
    will aid and assist the officers of Her Majesty in bringing to justice and
    punishment any Indian offending against the stipulations of this Treaty, or
    infringing the laws in force in the country so ceded.

In witness whereof, Her Majestys said Commissioners
    and the said Indian Chiefs have hereunto subscribed and set their hands at the North
    West Angle of the Lake of the Woods this day and year herein first above named.

(Signed)      Alexander
    Morris, Lieutenant-Governor

J.A.N.
    Provencher, Indian Commissioner

S.J. Dawson, Indian Commissioner

Kee-ta-kay-pi-nais           x

Kitchi-gay-kake                x

No-te-na-qua-hung  x

Mawe-do-pe-ness             x

Pow-wa-sang                   x

Canda-com-igo-we-ninie
    x

Pa-pa-sko-gin
    x

May-no-wah-tau-ways-kung       x

Kitche-ne-ka-be-han
    x

Sah-katch-eway
    x

Muka-day-wah-sin
    x

Me-kie-sies
    x

Oos-con-na-geish
    x

Wah-shis-konce
    x

Kah-Kee-y-ash
    x

Go-bay
    x

Ka-me-ti-ash
    x

Nee-sho-tal
    x

Kee-je-go-kay
    x

Sha-sha-gance
    x

Shah-win-na-bi-nais
    x

Ay-ash-a-wash
    x

Pay-ah-bee-wash
    x

Kah-tay-tay-pa-a-cutch
    x

Signed by the Chiefs within named in presence of the
    following witnesses, the same having been first read and explained by the Hon.
    James McKay:-

(Signed)      James
    McKay

Molyneux St. John

Robert Pither

Christine V.K. Morris

Charles Nolin

A. McDonald, Captain commanding
    escort to Lieutenant-Governor

James F. Graham

Joseph Nolin

A. McLeod

George McPherson, Sen.

Sedley Blanchard

W. Fred Buchanan

Frank G. Becher

Alfred Codd, M.D

Gordon S.
    Corbault

Pierre LeVieller

Nicholas
    Chatelaine

We hereby certify that the
    foregoing is a true copy of the original articles of treaty of which it
    purports to be a copy.

(Signed)      Alexander
    Morris, Lieutenant-Governor.

J.A.N. Provencher, Indian
    Commissioner.

S.J. Dawson, Indian Commissioner.