Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 106Government wanted (1) land in the area of the Dawson Route related to its construction andoperation and (2) land needed for the construction of the railway. (October 23, 2009 at p. 80.)The Ojibway understood that Euro-Canadian activities along the Dawson Route would havesome impact on their fishing. That is why they sought and obtained the assurance that theirsturgeon fisheries along the Route would be incorporated into their reserves for their ownexclusive use. (Dawson's correspondence indicated that for some time they had been discussingthe need to protect their gardens and fisheries in the Dawson Route area.) However, except in thevicinity of the Dawson Route and the CPR, they did not understand or agree that such sharingwould interfere with their traditional sustenance way of life. Away from the Dawson Route, theCommissioners and the Ojibway expected compatibility between Euro-Canadian uses andcontinuing Ojibway harvesting.[501] Lovisek said "land did not have the same connotation of value as resources." The abilityto harvest resources on the land was what was important. Their primary concern was theavailability of resources for their collective use, not what we would describe as "ownership" ofland. Apart from some lands and resources in the vicinity of the Dawson Route and the CPR, theOjibway did not understand that the Commissioners were asking them to give up using theresources on their lands. They did not understand that resources could be what Euro-Canadianswould describe as "owned." The Ojibway did not perceive that resources went with the land(October 23, 2009 at pp. 127-128.)2011 ONSC 4801 (CanLII)[502] Lovisek gave evidence that some historians have questioned whether the Ojibway wouldhave paid much attention to a statement that they would be allowed to hunt and fish because theyalready had the right to hunt and fish, and Morris did not advise them of any intention to takeaway that right. The Ojibway may have understood Morris' use of the words "before the otherlands are wanted" to imply that a further request would be made if and when lands were wanted.She noted he did not specify the lands that might be wanted or identify any reason why landsmight be wanted.[503] In cross-examination on January 26, 2010 Chartrand said the following at pp 156-157:A. But in terms of how the Ojibway would have conceived their ability to engage in renewableresource harvesting activities, they would have conceived that as being practices that they believedcould be conducted with impunity within their traditional territories. That this was something that notonly could they do, but this was part of their way of life.And so to get back to the characterization of the practice as a right, I think that the position of theOjibway was that these were practices that were part of how they went about making a living.[Emphasis added.][504] I have already noted that in 1871, Simpson had advised the Treaty 1 Indians that he hadinformed the Treaty 3 Indians that their land was "unfit for settlement" (Lovisek report, Ex. 28 atp. 128.) The Ojibway did not expect widespread Euro-Canadian agricultural activity andagricultural settlement would occur in most of their territory, i.e., their lands located away fromthe Rainy River/Rainy Lake/Dawson Route area. They expected reserves to be created to protecttheir gardening, hunting and fishing activities in the Rainy River area and at the same time theyexpected to derive additional benefits from Euro-Canadian activities. Most of their lands werelocated on the Canadian Shield, where subsistence by agriculture alone would have been