Keewatin v. Minister of Natural Resources

Part 2. The Organization of these Reasons 6(9) Credibility of the Experts – Findings.(10) Findings of Fact Part I relate generally to evidence on matters up to and includingthe signing of Treaty 3, including findings on Mutual Intention and Understandingof the Parties as to the Meaning of the Harvesting Clause and the Identity of theTreaty parties in 1873. It contains factual findings as to whether theCommissioners' reference to taking up by Canada was deliberate (as submitted bythe Plaintiffs) or a mistake (as submitted by Ontario) and as to whether theCommissioners regarded the power to limit Harvesting Rights as a power of theowner or of Canada under s. 91(24). It includes findings on the TreatyCommissioners' perceptions in 1873 about Canada's s. 91(24) powers and dutiesand as to whether they considered the existence of the Boundary Dispute and itspossible implications to be relevant in drafting the Harvesting Clause. Addressingthe interpretation that best reconciles the interests of both parties at the time theTreaty was made involved the assessment of some evidence of intention notdirectly related to the negotiations themselves. I placed these findings on mutualintention in the section of these Reasons immediately after the details of thenegotiations, because many of my conclusions on understanding and intent alsorelated to the content of the discussions at the negotiations. My findings were notbased simply on the contemporaneous documents alone, but also on the expertevidence with regard to context. To the extent I felt it appropriate, I referred tothat evidence and explained my findings in the same section of these Reasons. Ithen separately addressed whether the Ojibway understood that Canada couldabridge their Harvesting Rights.(11) Post-Treaty Events: History/Developments 1873-to the Present, including theBoundary Dispute and its fallout; Political, Jurisprudential and StatutoryDevelopments 1891-1894; the Annexation of Keewatin to Ontario in 1912;Relevant Present-Day Circumstances.(12) Findings of Fact Part II: Post-Treaty matters.(13) The Answer to Question One, including Application of Law to Facts; theMeaning of the Treaty as of 1873; the Effect of the 1891-1894 Legislation/Agreement in the Disputed Territory; Treaty Interpretation in Keewatin after itsannexation to Ontario in 1912.(14) The Answer to Question Two.(15) The Effect of the Answers to Questions One and Two.(16) The Honour of the Crown.(17) The Next Stage of this Litigation.(18) Final Observations.(19) Disposition.[39] These Reasons also include Appendix A, a document prepared by counsel at my request,setting out the procedural history; Appendix B, an Agreement regarding Historical Documents;and Appendix C. a Table of Cases listed alphabetically by the short form used in these Reasons.The full cites only appear in Appendix C, rather than at any point in the Reasons.2011 ONSC 4801 (CanLII)