Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 103[485] Both Chartrand and Lovisek agreed that before the Treaty was made, the Ojibway drewon their knowledge that the transportation route to the Red River was important to the Euro-Canadians. In effect, they understood it put them in a favourable bargaining position. Dawsonhad written:They are in general, keen traders, and seem to know the value of what they get and give, as well asany people in the world. Some of those who assemble at Rainy River for the sturgeon fishing, insummer, come from Red Lake, in the neighbouring State of Minnesota, where they possess huntinggrounds; and, among these latter, are some who have been parties to treaties with the United Statesfor relinquishing certain tracts for settlement, for which they are now in the receipt of annualpayments. The experiences they have thus gained, has rendered them expert diplomatists, ascompared to Indians who have never had such advantages, and they have not failed to impress ontheir kindred and tribe, on Rainy River, the value of the lands which they hold on the line of route toRed River.(Lovisek report, Ex. 28 at pp 29-30)[486] Lovisek opined that the Treaty 3 Ojibway understood in 1873 that their altered positionwas favourable. They had observed that the settlers were passing through their territory, notstaying to settle on it. They perceived that a Euro-Canadian presence would not interfere muchoverall with their way of life. The Commissioners did not advise and they did not accept thattheir way of life must change. They perceived there was room to share their resources, withoutaffecting their subsistence harvesting. They did not foresee that sharing would cause resourcedepletion. At the same time, they believed there could be benefits to be derived from a Euro-Canadian presence. Her evidence on October 21, 2009 contains the following:A. Well, their altered position relates to the Ojibway prior to the construction of the Dawson Roadnot having large-scale interactions with non-native people and now having observed the actions ofwhite people through their area have essentially had a different perspective or altered perspectiveabout what that interaction involved.Q. And what is it about the behaviour of white people that has led the Saulteaux, in Mr. Dawson'sview, to adopt a favourable view of their altered state, their altered position?A. Probably … as Dawson described -- that the activities by the white people were unobtrusive …didn't interfere with actions of the Ojibway, and … provided benefits for the Ojibway, and for this theOjibway had a favourable view about the white people coming into their territory.Q. And what are the benefits that accrued to the Ojibway?A. Well, I think I described some of them yesterday. The Ojibway would be provided with workopportunities such as canoeing some of the barges of immigrants packages, parcels and other relatedmigration materials. They would be also selling some of their wood for the steamships and for otherpurposes being used in the construction of the Dawson road, and … related activities to theconstruction of the Dawson Road where they would find employment.…Q. Now I'd like you to step back … and … put this … in the context of the Ojibway approach toassessing circumstances or events.A. … it's a characteristic of the Ojibway that has been described in the academic literature,particularly by a linguist … Dr. Mary Black Rogers. And she described this characteristic using atechnical term called percept ambiguity, which actually means that the Ojibway tend to adopt a waitand-seeattitude towards changes that occur in their environment. So with respect to the constructionof the Dawson Road and the prior treaty negotiations, this is an example where the Ojibway havewatched and observed what's been happening in a portion of their territory and have decided that theactivities by these people have not interfered with their use of the land and, in fact, have addedbenefits.[Emphasis added.]2011 ONSC 4801 (CanLII)