Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 116Not to … prevent settlers catching fish for domestic use but certainly in such a manner as to guardagainst the use of destructive appliances which fish traders use in securing car loads of fish forexport.[Bold and underlining emphasis added.][549] Dawson wrote a letter (Ex. 1, Vol. 14, tab 630) to Indian Affairs dated April 26, 1896:'It was distinctly held out to them that they would have the right to pursue their ordinary avocationsof hunting and fishing throughout the tract they were about to surrender and stipulation embodyingthis understanding appears in Treaty 3'"…And further, to allow the said chiefs and their tribes the full and free privilege to hunt over theterritory now ceded by them and to fish in the waters thereof as they have heretofore been in the habitof doing….[Emphasis added.]I have already noted that given their own practice of harvesting only what they needed, theOjibway had had no experience with resource depletion. Dawson's letter continued: "[I]n view ofthe stipulation it could never in reason or justice have been supposed that the Government,through its Commission, had intended to deprive the Indians of their chief means of subsistence."[550] Chartrand's cross-examination (January 26, 2010 at pp 45-50) contains the following withrespect to Dawson's April 26, 1896 letter. First, a portion of the letter was recited:"In reply to your letter of the 18th inst., I beg to say that, during the negotiations with theIndians of Rainy River and the Lake of the Woods, it was distinctly held out to them by theCommissioners acting for the Government that they would have the right to pursue theirordinary avocations of hunting and fishing throughout the tract they were about to surrenderand a stipulation embodying this understanding appears in the Treaty (No. 3).…In those days it was never contemplated that there would be such a run on their fisheries by thewhite man as has since occurred. Otherwise, the clause in favour of the Indians would havebeen made stronger."2011 ONSC 4801 (CanLII)A. Well, in terms of impact, it would -- what's being discussed here is the scale and intensity of theactivity and its effect on the Ojibway economy and the intentions of the Commissioners at the timeregarding what they wanted to have secured to the Aboriginal peoples in the context of Euro-Canadian presence and activity.Q. And he's suggesting that if there'd been the kind of significant impacts we were seeing in thefishery, the Commissioners would have drafted stronger protections than appeared in the document,correct?A. Absolutely. And the whole point, I think this is very evident even from the 1873 negotiationrecords and other documents, it was fully the intention on the part of the federal government, theTreaty Commissioners and certainly of the Ojibway, to remain self-sufficient after the Treaty.Q. Right. But Dawson's letter, in terms of helping us understand the reference at page 58, I'm goingto suggest to you, is actually putting forward the proposition that the language in the writtendocument should have been stronger than actually appears?A. Well, it should have been stronger if the intensity of fishing activity had been foreseen to have theimpact that it was having by the 1880s and 1890s.[551] In his correspondence outlining his understanding of the Commissioners' understandingand intentions in 1873 with respect to the Harvesting Clause, Dawson never mentioned the"taking up" provision in the Harvesting Clause. Instead, he emphasized the content and