Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 117importance of the Treaty promise/the inducement to the Ojibway that they would "forever" haveHarvesting Rights.Why Did Morris Refer to the Dominion Government in the Harvesting Clause?[552] A major issue in this case is the significance or insignificance of Morris' mention of theDominion when he drafted the Harvesting Clause.[553] An understanding by Morris that Canada was and would be the owner of Treaty 3 lands iskey to Ontario's argument that Morris was not invoking Canada's s. 91(24) jurisdiction inmentioning Canada in the Harvesting Clause.[554] As I see it, there are several questions to answer. Was Morris thinking only of Canada'sownership rights? Did he refer to Canada simply because he assumed Canada would be thebeneficial owner and administrator of Treaty 3 lands? Did he have other more complicatedreasons for mentioning Canada?2011 ONSC 4801 (CanLII)[555] In this section, I shall review the evidence relating to Morris' intention in that regard.[556] Counsel for Ontario in effect submitted that Morris' reference to Canada was all about anassumption of "ownership." He relied on Chartrand's evidence that the June 16, 1873 Order inCouncil appointing the 1873 Commissioners specifically mentioned the Treaty 3 lands being inthe Northwest Territories. Chartrand opined the mention of Canada was simply based on theassumption that Canada as owner would always have the power to grant patents, issue licensesand "take up" or authorize "taking up" of the Treaty 3 lands.[557] Chartrand opined (January 22, 2010 at p. 29) that in drafting the Harvesting Clause,Morris assumed Canada owned the lands because the June 16, 1873 Order in Council appointingthe 1873 Commissioners mentioned the Treaty 3 lands were in the Northwest Territories:Q. Now, I also take it from the way you've structured your opinion that you understand the Treaty 3Commissioners' powers to negotiate Treaty 3 to arise out of this commission?A. That their fundamental authority, yes.[558] Given that assumption, the timing of the appointment and the instrument under whichthey were appointed may be of relevance. Counsel for the Plaintiffs cross-examined Chartrandon that assumption and submitted that that June 16, 1873 Order in Council did not specificallyappoint the Commissioners to negotiate Treaty 3 and Morris knew it. On June 23, 1873, Spraggewas still apparently of the view that the Treaty 3 negotiations had not yet been placed into thehands of Morris, Russell and Provencher. He wrote a memorandum on that day containing thefollowing:Taking into consideration the whole of the circumstances it is respectfully proposed that themanagement of the negotiations be placed in the hands of the Board of Commissioners recentlyappointed by Order in Council consisting of the Lieutenant Governor, the Chief officer for Indianaffairs or the Northwest Territories and the Head Officer in Manitoba of the Dominion land grantingdepartment, with such assistance from Mr. Dawson as it may be in his power to afford and aidedwhenever they may desire his services by Mr. Pither, the Indian agent resident at Fort Frances.[Emphasis added.]