Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 151[744] I accept Milloy's evidence (October 19, 2009 at p. 47) that after the 1760s, the Imperialauthorities took responsibility for protecting Indians, a vulnerable minority, against exploitationby colonial/provincial authorities, and that after 1867, the federal government took over theImperial responsibility vis-à-vis the Indians. I find that Morris, a keen student of Imperialhistory, was aware that such an approach would foster Canadian strategic interests, just as it hadpreviously similarly fostered Imperial strategic interests in undeveloped territories.[745] Milloy's evidence is consistent with the opinion expressed by Professor Hogg inConstitutional Law of Canada, supra, at 756, previously quoted at paragraph 141 above.[746] I reject the submission of Ontario that Morris and the other Commissioners wereoblivious to protecting the Indians. Even before Confederation, Morris understood theobligations to be assumed under s. 91(24). In his 1858 lecture generally about the annexation ofthe West, published in Nova Brittania (Ex. 130), one of the first matters he mentioned was theinterests of the Indians, "a proper sense of the responsibilities to be assumed in regard to thewell-being of the native and other inhabitants."2011 ONSC 4801 (CanLII)[747] All three Treaty Commissioners understood the importance of traditional harvesting tothe Ojibway and therefore the importance of promising continuing Harvesting Rights to inducethe Ojibway to enter into the Treaty.[748] They knew it would not be easy to achieve an agreement. Key Ojibway Chiefs were"careless" about a treaty, divided among themselves and quite capable of walking away from thenegotiating tent as they had done in 1871 and 1872.[749] In 1873, I find that the Treaty Commissioners were concerned about Ojibwayindifference to a treaty. I note that in 1873, before the negotiations began, the Indians objected tothe location and kept the Commissioners waiting for several days before they were willing tostart negotiating.[750] With respect to the submission of counsel for Ontario that Dominion Indian policy didnot seek to promote hunting and fishing, while I have accepted that Canada's overall policy at thetime was to encourage the Indians to adopt agricultural pursuits, I find that the Commissionersunderstood that most of the Treaty 3 lands were not suited to agriculture. Morris made it clear tothe Treaty 3 Ojibway that he expected their gardening to supplement, not replace, theirtraditional harvesting. On October 3, 1873 he said, "I think I should … give you the means togrow some food, so that if it is a bad year for fishing and hunting, you may have something foryour children."[751] I recognize that when he wrote Ex. 9, Morris mentioned not only that Treaty 3"tranquilized the large Indian population," was "of great importance to Canada as it included theDawson Route and the Canadian Pacific Railway," but also it included "a large extent of fertilelands." I find he must have been referring to the only fertile lands known at the time to exist inthe area, the lands along the Rainy River, adjacent to the Dawson Route.