Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 104[487] Lovisek gave evidence that the Ojibway understood that the lands the government wantedwere the land related to the construction and operation of the Dawson Route, and the land neededfor the construction of the Canadian Pacific railway. They understood that away from theDawson Route and the CPR right-of-way, their way of life would not change. Despite what theyconsidered to be their favourable existing circumstances and their lack of a need for a Treaty,some of the Chiefs envisaged benefits from establishing an alliance with a treaty partner.[488] The gist of Lovisek's evidence was that the Ojibway would have refused to enter into atreaty if they had perceived that the detriments would outweigh the benefits.2. Whether They Understood They Would Be Required to Change Their Way of Life[489] The experts disagreed about the understanding of the Ojibway of the implications of atreaty at the time they entered into the negotiations.2011 ONSC 4801 (CanLII)[490] Lovisek and Chartrand agreed that Morris never clearly explained to the Ojibway what hewanted from them. Morris never identified what lands were wanted (Lovisek, October 23, 2009at p. 83.) He never discussed "taking up for settlement, mining, lumbering" etc. with them. Hedid not use phrases such as "if you give up your lands," "if you sell your lands." Like Dawson, hetold them he wanted to settle all matters of the past and present so that the white and red manwill always be friends. Lovisek opined that the Ojibway would not have understood from whatMorris said that the Commissioners were seeking not only a surrender of all of their lands, butalso a surrender of their right to harvest renewable natural resources on those lands, in 1873 or atany time in the future.[491] While the experts agreed that Morris did not clearly explain what the Ojibway were beingasked to give up, they disagreed as to whether such an explanation was necessary.[492] Von Gernet opined (December 10, 2009 at p. 102) no explanation was needed becausethe Plaintiffs already understood the negative implications of land cessions. It was the generalunderstanding of Aboriginals at the time that after a treaty was signed, Euro-Canadians wouldunilaterally undertake development on ceded lands and that there would be no furtherconsultation with them. The Ojibway already understood and accepted that after the Treaty,when Euro-Canadians occupied their lands, they would no longer be able to hunt on them.[493] Von Gernet opined (December 10, 2009 at p. 102) that the Ojibway understanding of theimplications of treaty making was primarily based upon early Aboriginal experience in otherareas. By 1873, over 300 land cession treaties had been entered into in the United States. Therehad been "dozens" in Upper Canada.[494] In cross-examination, he conceded that the Treaty 3 lands were much larger than thosecovered by the early Upper Canada treaties (which did not contain clauses expressly protectingAboriginal harvesting rights.) They had differing agricultural potential. At the time the treaties insoutherly Upper Canada had been negotiated and concluded, the First Nations there understoodthat widespread agricultural settlement was imminent.