Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 109In his opening offer Lieutenant-Governor Morris offered the Saulteaux a bundle of items includingfriendship, reserves, schools, money, presents of goods and provisions. One offer in the bundle ofterms includes reference to hunting and fishing:I want to settle all matters both of the past and the present, so that the white and red man willalways be friends. I will give you lands for farms, and also reserves for your own use. I haveauthority to make reserves such as I have described, not exceeding in all a square mile forevery family of five or thereabouts. It may be a long time before the other lands are wanted,and in the meantime you will be permitted to fish and hunt over them. I will also establishschools whenever any band asks for them, so that your children may have the learning of thewhite man. I will also give you a sum of money for yourselves and every one of your wivesand children for this year. I will give you ten dollars per head of the population, and forevery other year five dollars a-head. But to the chief men, not exceeding two to each band,we will give twenty dollars a year for ever. I will give to each of you this year a present ofgoods and provisions to take you home, and I am sure you will be satisfied.Morris' statement : "It may be a long time before the other lands are wanted, and in the meantime youwill be permitted to fish and hunt over them" will be the only statement Morris makes during thethree days of recorded oral negotiations that refers to the taking-up clause as drafted by Morris.Morris makes this reference as one of many offers which ranged from the intangible (friendship) tothe tangible (farm lands, reserves, schools, money, payments for chiefs, goods and provisions).2011 ONSC 4801 (CanLII)The Saulteaux responded to Morris' offer with silence. Silence is not an indication of consent for theSaulteaux. …[Emphasis added.][512] Von Gernet and Chartrand mentioned Morris' statement on October 1 that "it may be along time until the other lands are wanted" and that "in the meantime you will be permitted tohunt and fish on them" as his clearest reference at any time during the negotiations to theHarvesting Clause.[513] The experts agreed there was no reference on October 2, 1873 to continuing hunting andfishing.[514] They disagreed about whether there was a discussion about harvesting before the Treatywas signed on October 3, 1873.[515] Chartrand maintained throughout his evidence that the only discussion of HarvestingRights was on October 1. In cross-examination he said (January 21, 2010 at p. 86) his opinionthat the Ojibway knew that "taking up" was "something the Treaty was concerned about"focused on the "direct explanation" given by Morris on October 1. He said the Ojibway did agreeon October 3 to Morris' October 1 proposal.[516] Lovisek said they did not. She expressed her view that this Court should not assume orconclude that the Ojibway agreed with Morris' October 1 proposal that they would be able tohunt and fish until the lands are wanted, in the absence of their positive and specific affirmationof it. Without an express statement of agreement, the Commissioners could not, and this Courtshould not, conclude that the Ojibway agreed to the proposal that they would lose those rightswhen the lands were wanted.