Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 99[457] They knew reaching agreement would not be easy. In 1871 and 1872, the Ojibway hadpointedly refused to enter into a treaty. Unlike the Ojibway/Cree in the Treaty 1 and 2 areas, theTreaty 3 Ojibway had repeatedly resisted the overtures of the Canadian government. Ontario'swritten argument contains the following: The Ojibway "were articulate and forceful in pursuingwhat they saw as their interests, and quite capable of saying, "No."[458] Counsel for Ontario urged this Court to reject Milloy's evidence that the TreatyCommissioners were aware they were working within a tradition of placing the protection andguardianship of Indians in the hands of a higher government and as a result they took care toframe the language of the Treaty to allow "the federal government to mediate, in the post-Treatyperiod ... the possibly conflicting interests of a hunting versus an exploitative settler economy inthe service of both development and the protection of the tribes affected by the transfer." Heurged this Court to find that to Canada, "protection" meant "assimilation." He submitted that keyaspects of the broader context of Indian policy and Constitutional, administrative, andinstitutional arrangements that shaped the making of Treaty 3, weighed against the drawing ofthat inference and rendered it implausible. Morris would have known that the federal governmentwanted to assimilate the Indians. He would have known that Canada's overall Indian policieswere against continuation of traditional Indian lifestyle, including hunting and fishing, and infavour of the adoption of an agricultural lifestyle.2011 ONSC 4801 (CanLII)[459] Milloy opined that while it was generally true that federal Indian policy at the timeencouraged assimilation and the adoption of an agricultural mode of life, general policyconsiderations often gave way to more pressing priorities. In 1873, the importance of Canada'spolicy of assimilating Indians paled against its biggest post-Confederation challenge, that ofassimilating its huge new Western Empire. Given the precarious security in the West due toIndian-related concerns, Canada, like the Imperial Government before it, recognized the wisdomof continuing the policies and strategies that had been behind the Proclamation of 1763, and ofcentralized control to further Canada's national priorities. Those responsible for Canadian IndianAffairs returned to the policy of "conciliation" and to the making of promises of protectionnecessary to achieve conciliation.[460] Counsel for the Plaintiffs submitted that the particular circumstances behind the Treaty 3negotiations differed from those of the other numbered treaties to Canada. Getting title to theTreaty 3 land so it could be settled and developed was much less important than securing accessthrough the land. Chartrand agreed in cross-examination (January 21, 2010 at p. 117) that themajor impetus for Treaty 3 was securing the immigrant travel route, unlike Treaty 1, forexample, where it was acquiring the land so the fertile Red River area could be settled.[461] Whatever the agricultural potential in the localities of other numbered treaties, apart fromthe Rainy River, the Treaty 3 area had little agricultural potential. I note that lands on the southside of the Rainy River were in the United States. The Treaty Commissioners and the Ojibwayboth recognized that reality. Most of the 55,000 square mile Treaty 3 area was generally viewedas unpromising for agricultural development.