Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 101[470] While in his 1880 book (Ex. 9), Morris did refer to the advantages to the Indians of anagricultural lifestyle, he referred to agriculture as a supplement to their continuing traditionalharvesting. He wrote at p. 288 as follows:They recognize the fact that they must seek part of their living from the mother earth … Such adisposition as this should be encouraged. Induce the Indians to erect houses on their farms and plant'their gardens' as they call them and then, while away on their hunts, their wives and children 'willcare for their patches of corn and potatoes.'[471] The Commissioners understood that apart from the Rainy River area, the Treaty 3 landswould be of little interest to Euro-Canadian agriculturally-motivated settlers.[472] I note that in his Official Report after the completion of Treaty 3, dated October 14, 1873,Morris referred to a "lumber and mineral region," and made no reference to agriculture orsettlement. He wrote: "[T]he Indian title has been extinguished over the vast tract of countrycomprising 55,000 square miles … and embracing within its bounds the Dawson Route, the routeof the Canada Pacific Railway and an extensive lumber and mineral region."2011 ONSC 4801 (CanLII)[473] The Plaintiffs submitted that the Commissioners perceived that the Treaty 3 area helddim prospects for successful widespread lumbering activities. Simpson had commented, "Thetimber is small and not fit for market, even if could be got out." [The rivers flowed north andwest, away from settled Canada.][474] While it was hoped that mining could be pursued, the Commissioners anticipated itwould occur on a spotty basis and would be unlikely to interfere significantly with traditionalharvesting activities.The Interests of the Ojibway/What the Ojibway Knew[475] Lovisek gave evidence that in 1873, the Ojibway were primarily concerned aboutpreserving their way of life, including their right to continue hunting, fishing and trapping as inthe past. They valued their seasonal round, the pursuit of their livelihood through traditionalharvesting. Their culture and identities were intimately connected with hunting, trapping, fishingand harvesting wild rice as their ancestors had done since time immemorial.[476] The experts disagreed about the mindset of the Treaty 3 Ojibway as they entered into the1873 negotiations, especially with respect to (1) whether they perceived they needed to make atreaty at all, and (2) whether they understood and accepted that they would be required to changetheir way of life after the Treaty was entered into.1. Whether They Needed a Treaty[477] Counsel for the Plaintiffs, based in part on the evidence of Lovisek, submitted theOjibway felt no need to enter into a treaty. They were under no immediate threat. They hadalready repeatedly refused to accept Euro-Canadian terms for their "barren and sterile land" thatother First Nations who held magnificent fertile prairie lands had found to be acceptable in