Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 96Morris' Awareness of the Boundary Dispute[435] In 1873, Morris was aware of the Boundary Dispute between Canada and Ontario. Hehad been present at the 1872 Cabinet discussion in his capacity as Minister of Inland Revenue,when the implications of the Boundary Dispute were discussed, including its potential effects onfederal interests and the validity of patents and licenses issued by Canada within the DisputedTerritory.[436] As a "trained Constitutional lawyer," Morris understood that the outcome of theBoundary Dispute would determine ownership of the land in the Disputed Territory. If Ontariowon the Boundary Dispute, as beneficial owner it would have proprietary rights under s. 109.Whether or not Ontario won the Boundary Dispute, he knew that by reason of the 1871Constitutional amendments, Ontario or another province could in due course receive s. 109-likepowers.2011 ONSC 4801 (CanLII)[437] By 1873, Morris was aware that litigation between Ontario and Canada would likely berequired to settle the issue of ownership of the Disputed Territory. (Saywell, April 7, 2009 p.160.)[438] Although in 1873, Morris could not have known whether Ontario or Canada wouldprevail, if Morris' arguments made in 1858 (Ex. 130 at pp. 82-84) had been accepted, it wouldhave been determined that at Confederation, the Disputed Territory was not part of the HBCTerritories, but part of Ontario. By 1873, Morris clearly wanted Ontario to lose the BoundaryDispute, but he was also aware that there were arguments to be made as to why Canada couldlose, since he himself had made arguments before Confederation that were useful to Ontario afterConfederation. (Vipond, February 23, 2010 at pp 3-20.)What Dawson Knew[439] Dawson was the only Treaty Commissioner in 1873 who had previously served in thatcapacity in earlier treaty negotiations.[440] I have already quoted Dawson's letters and memos written to Ottawa between 1857(when he first came into contact with some Treaty 3 Ojibway as a member of the Hindexpedition) and June 1873 (when, having not been appointed as a Treaty 3 Commissioner, hewrote to Ottawa providing advice with respect to the upcoming negotiations.)[441] As mentioned earlier, from 1868 Dawson had been in regular contact with the Ojibway,as the employee of the Canadian Department of Public Works in charge of construction of theDawson Route between Prince Arthur and the Red River Settlement. For several years, Dawsonhad been stressing the urgency and difficulty of entering into a treaty with the Ojibway. In Ex. 1,Vol. 4, tab 53, he stressed the situation was exceptional:These Indians occupy a peculiar and somewhat exceptional position. They are a community bythemselves, and are essentially wood Indians, although going on hunting or fighting expeditions tothe prairies. They are of the same tribe as the Indians at Red River, speak the same language, andregard them as their kindred; but they seldom see them, and have but little intercourse with them.