Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 111The greatest inconsistency between the Nolin Notes, Dawson Notes and the Morris Document is theterm: "free as by the past for their hunting and rice harvest."[523] The experts disagreed on the sequence, significance and content of a discussion recordedin contemporaneous notes prepared by Nolin on October 3: "the Indians will be free as by thepast for their hunting and rice harvest."[524] All the records indicate that Nolin made the note on October 3 after a Chief mentionedthey must have the privilege of travelling through the country.[525] The reference to the Indians being free for their hunting and wild rice harvest does notappear in that form in any of the other notes of the October 3 discussions. The experts attemptedto provide explanations for this discrepancy.[526] Chartrand gave evidence (January 14, 2010 at p. 71) that Nolin's note is "ethnohistoricallyproblematic" because "Setting aside the Nolin notes, the available documentaryevidence suggests the only time at which a harvesting promise was made was October 1."2011 ONSC 4801 (CanLII)[527] Chartrand opined that on October 3, Nolin was recording Morris' statement made twodays earlier on October 1 that it may be a long time until the lands are wanted, and in themeantime the Ojibway would be permitted to hunt and fish on them (January 14, 2010 at pp. 68-69.][528] Lovisek gave evidence that the Chief's demand, made in Ojibwe and interpreted intoEnglish as, "They must have the privilege of travelling through the country" was practical andimportant, related to their being able to carry on their traditional subsistence activities. It wascritical to the Ojibway that they be assured that their practice of travelling over the land toharvest rice, to fish and hunt, to pick berries and attend at their annual religious and culturalceremonies would not change. She gave the following evidence on October 22, 2009:A. … The best interpretation that I have seen for what this actually means comes from linguisticwork by Dr. John Nichols, who translated some of the Chippewa treaties. His view is when you havea conjunction such as hunting and wild rice gathering, which are disjunctive terms, when they areplaced together in the Ojibwe language, what they mean is making a living. So the hunting and ricegathering would mean that they have rights to make a living from resources, rather than beingspecific to just hunting or wild rice.[Emphasis added.][529] While Chartrand agreed (December 15, 2009 at p. 88) that the Ojibway believed theywould be able to travel through the country for a full range of traditional social and culturalpurposes, including traditional harvesting activities, he asserted that the Chief's demand onOctober 3 about travelling about the country should be interpreted literally, as relating to travel,not maintenance of Harvesting Rights. (January 14, 2010 at pp 68-9.) His evidence on January14, 2010 also includes the following at pp. 60 and 62:A. …And so I believe that at that point, when one of the chiefs places the demand in regards tohaving the privilege of travelling about the country where it is vacant, James McKay points out to thecommissioners that this is something that he has already discussed and confirmed with them.Q. So who was McKay talking to when he makes the statement that's reported here?