Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 110[517] In considering whether the Ojibway accepted the October 1 proposal, Lovisek opined thatall of the circumstances must be considered in context. The Ojibway were extremely polite. Theywould not voice objections in the form of outright denial or rejection. Instead, they wouldtypically change the subject or even make a "contradictory statement of agreement." That is whatthey did on October 2, 1873 when they responded to Morris' statement that the water and woodin their territory was owned in common. In an almost classic Ojibway manner, they said, "Whatwas said about the trees and rivers was quite true, but it was the Indian's country, not the whiteman's. It is our wood and water." They did not say to Morris, "You are wrong about the woodand water." Without directly challenging Morris' statements that wood and water were thecommon rights of all the subjects of Her Majesty, they did assert that the country was theircountry and the trees and the water were theirs.[518] Lovisek concluded that on October 3, 1873 the Ojibway did not accept the bundle ofterms Morris had presented on October 1. She expressed the view that while this Court shouldnot ignore Morris' October 1 statement, it should not consider it in isolation. The Ojibway madeno reply on October 2 to Morris' October 1 offer. They never positively affirmed they wereaccepting the October 1 offer. They did specifically present Treaty terms that they foundacceptable: "They must have the privilege of travelling through the country." Those terms (thatthey must have the privilege of travelling through the country) did not include any limits on theirHarvesting Rights (Lovisek, November 16 and 23, 2009.)2011 ONSC 4801 (CanLII)[519] The Commissioners knew the Ojibway Chiefs could not agree to a proposal until theyhad discussed and agreed to it in Council. Also relevant are the Commissioners' offer ofammunition and twine in perpetuity on October 3, Nolin's reference in his Notes to a discussionon October 3 about the Ojibway being free "as by the past" for their hunting and wild riceharvesting, Dawson's recollections of promises made to induce the Ojibway to enter into theTreaty and Dawson's lack of any mention of any "taking up" provision.The Promise of Ammunition and Twine[520] Lovisek opined that the Commissioners' promise on October 3 to provide ammunitionand twine on an ongoing basis is directly relevant to the Ojibway understanding of the harvestingpromise. She said (October 22, 2009) the Ojibway would have understood from that promise thatthey were being assured that after the Treaty was made, their Harvesting Rights would continueindefinitely.[521] Milloy gave evidence on October 13, 2009 about the history and significance of the offerof ammunition and twine:A. … the …negotiating model …used by the Canadian government really is the old fur trade model... So it tells you that practice is continuing and indeed that they expect that practice to continue, thatis, hunting, gathering, trapping, trading …[Emphasis added.]The Nolin Note[522] Lovisek wrote in her report (Ex. 28) at p 119: