Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 115[545] Given his long association with the Ojibway, his participation as Treaty Commissioner in1871, 1872 and 1873, Lovisek opined (October 22, 2009 at p. 113) that Dawson's recollectionsare significant in shedding light on what was promised to the Ojibway and understood by them.[546] I have referred to Dawson's post-Treaty recollections here, because they specificallyrelate to what transpired at the 1873 negotiations. They provide important information aboutwhat was represented by the Commissioners and what was understood by the Ojibway.[547] In the 1880s Dawson was a federal Member of Parliament. Concerns about the threats toTreaty 3 fishing as a result of commercial fishing were raised in Parliament. On May 19, 1888,Dawson's remarks were recorded in Hansard and quoted by Lovisek in Ex. 28 at pp. 165-166:In response to a query from Sir Charles Tupper in the House of Commons about Treaty 3, Dawsonreiterated his understanding of the taking-up clause:The treaty stipulates that the Indians shall have the right of fishing all over the territories asthey formerly had. Xxx What becomes of that stipulation if the white man is allowed to gowherever he likes, and to make a speculation in sweeping the fish out of the lakes & sendingthem to the markets of the world?2011 ONSC 4801 (CanLII)Sir John A. MacDonald joined the discussion by adding:The treaty, as the Hon gentleman says, provides that the Indians who come under it shallhave the right to fish in all the waters within the area surrendered. That, however, does notgive them exclusive rights to fish, & it appears the Indians do not object to ordinary fishingbeing done in those waters by other parties, & they do not seek to prevent settlers fromfishing there…The debate ended when another Member of Parliament asserted that fisheries belonged to theProvinces. The Prime Minister disagreed with the Member but stated that whatever his Minister didwould have to comply with federal jurisdiction. Dawson…kept up his efforts to protect Saulteauxfishing rights. ……Dawson … raised this issue before the House of Commons in 1887, 1888, 1889 and 1890.[548] Dawson set out his understanding of the Harvesting Promise in a letter to the DeputyMinister of Indian Affairs dated May 28, 1888 (Ex. 1, tab 552) as follows:In regards to the clause of the Treaty which you quote, taken by itself, it [the treaty] does convey tothe Indians the right to pursue their avocations of hunting and fishing and of course this right, soconveyed, has in equity to be considered not from the wording, alone, but from the evident spirit andmeaning of the Treaty, as well as from the discussions explanatory of the wording which tookplace at the time the Treaty was being negotiated ……I am in a position to say that as an inducement to the Indians to sign the Treaty, theCommissioners pointed out to them that along with the land reserves and money payments,they would forever have the use of their fisheries. This point was strongly insisted upon and ithad great weight with the Indians, who for some years previously had persistently refused toenter into any treaty. Now upon the back of this, the white man is allowed to bring into play theappliances of modern science and recent discoveries in the mechanical arts of fish catching and sosweep the waters of every living thing down to a minnow, what becomes of the stipulation in[illegible.]…With respect to the Lake of the Woods, the Government of Ontario should, I think, be asked toreserve the whole Lake for the use of the Indians.