Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 105[495] There was evidence that of the earlier Canadian treaties, the circumstances of the 1850Robinson Treaties were most similar to the Treaty 3 circumstances. Chartrand agreed (January21, 2010 at p. 72) that because of kinship relations, before the 1873 negotiations, the Treaty 3Ojibway had received information about the Robinson Treaties. The Treaty 3 Ojibway knewtheir lands were more similar to the Robinson Treaty lands than to the more southerly lands inUpper Canada. Commissioner Robinson had explained the difference between the RobinsonTreaty lands and lands further south. The more southerly lands had much better agriculturalpotential. Occupation on them by Euro-Canadian farmers in a manner that would precludehunting had been immediate on them. The Treaty 3 Ojibway knew Commissioner Robinson hadtold the Robinson Treaty Ojibway that their lands were "notoriously barren and sterile" and"would in all probability never be settled except in a few localities by mining companies" andthat they would be able to retain possession of their hunting grounds in the interior as follows:they would relinquish nothing but a mere nominal title and would be able to "continue to enjoyall their present advantages ..."2011 ONSC 4801 (CanLII)[496] Von Gernet opined that the Ojibway Robinson Treaty signatories would not haveaccepted those specific assurances. He said on December 7, 2010 p 24, "That's what they're told.But they are not stupid. They understand that settlers come."[497] The experts all agreed that the Treaty 3 Ojibway had their closest ties with relatives southof the American border, the Red Lake and Pembina Chippewas, who had signed the OldCrossing Treaty in 1863. During the Old Crossing Treaty negotiations, Commissioner Ramseymade the following representation:When a man sells his horse, he loses the use of him and must make do without a horse or buyanother. But, in this case we pay ... the value of the horse ... and [you] get back the horse to use asmuch as [you] choose. We buy the … lands and then permit [you] ... to use [them] as before, to huntfor game in the woods and prairies and to fish in the streams. So that [you] lose nothing whatever bythe arrangement ... while [you] will gain many things of great value which [you] do not have ...[498] Of that assurance to the Chippewas, Von Gernet said on December 7, 2009 at p. 24,"They are not going to buy into this."The Ojibway Understanding of What They Were Being Asked to Give Up[499] Unlike Von Gernet who inferred that the Ojibway understood Euro-Canadian typeconcepts related to land and already understood they were giving up their lands, as noted earlierin Part 5, The Ojibway Perspective – Ojibway History. Lovisek and Chartrand both agreed thatwhile the Ojibway had a strong sense of territory they had no Euro-Canadian type concept ofbuying or selling lands (Lovisek October 22, 2009 at p. 82; October 23, 2009 at p. 91.) Incontrast to the signatories of Treaties 1 and 2, for instance, who had lived in the vicinity of Euro-Canadians since at least 1817, the Treaty 3 Ojibway had no experience with Euro-Canadian landtransactions. The idea of surrender of land was "alien to the Ojibway understanding" (Lovisek,October 23, 2009.)[500] Lovisek opined that the Ojibway understood that the interests of the Euro-Canadianswere narrowly focused on the vicinity of the Dawson Route and the CPR right-of-way, that the