Keewatin v. Minister of Natural Resources

Part 3. Overview 8[50] By 1872, the Dawson Route was open. Settlers were already crossing through the Treaty3 territory enroute to the West. The Treaty 3 Ojibway were feeling violated. By 1873, thesecurity of travellers over the Dawson Route and of surveyors preparing for the construction ofthe Canadian Pacific Railway ("CPR") was a concern. Canada feared it would have to incur thecosts of stationing troops in the area. The CPR needed to be completed between the Red Riverand Lake Superior by December 31, 1876.[51] In 1873, Canada sweetened its offers. It perceived that the Ojibway were beingparticularly "obstinate." Many of the Ojibway Chiefs were known to oppose entering into atreaty agreement that would allow for a permanent Euro-Canadian presence on Treaty 3 lands.[52] After three days of intense negotiations, which will be detailed later in these Reasons,Treaty 3 was finally signed on October 3, 1873.[53] Given the differing interpretations of the Harvesting Clause, one of my principal taskshas been to assess all of the evidence, including the historical documentation, to determine themutual understanding and intent of the Commissioners and the Ojibway in respect of the TreatyHarvesting promise in 1873, and to arrive at the interpretation of common intention that bestreconciles the interests of the parties at the time the Treaty was signed.2011 ONSC 4801 (CanLII)[54] It is uncontroverted that during the Treaty negotiations, the Commissioners specificallypromised the Ojibway that reserves would be established for their exclusive use that wouldinclude the areas they had previously used for gardening/agricultural purposes and for sturgeonfishing. In the years immediately following the conclusion of the Treaty, Canada purported to setup reserves and took other steps to implement and enforce the Treaty.[55] After the Treaty was concluded, wrangling between Canada and Ontario over theboundary between Ontario and the Northwest Territories ("the Boundary Dispute") led to seriousnegative repercussions for the Treaty 3 Ojibway.[56] The Treaty Commissioners' knowledge of the existence and potential implications of theBoundary Dispute in 1873 is relevant to their intentions and motivations in drafting the Treatyprovision under consideration.[57] The experts agreed that in 1873 the Treaty Commissioners knew that Ontario wasasserting a claim of ownership of the Disputed Territory. They disagreed about the effect ofknowledge of the Boundary Dispute on the drafting of the wording of the Treaty document,including the Harvesting Clause.[58] In the immediate aftermath of the Treaty, Canada actively protected the Ojibway'shunting and fishing rights.[59] In late 1888, the JCPC in St. Catherine's Milling held that Ontario owned the DisputedTerritory. Ontario then claimed that Canada had had no jurisdiction to set up Treaty 3 reserveswithin the Disputed Territory without its consent. It asserted that as owner, it could "take up"lands within the Disputed Territory unburdened by the Ojibway's traditional Harvesting Rights