Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 152[752] I have considered that the Treaty does contain boilerplate language referring to openingof the lands for settlement and other purposes. While generally speaking, I accept that theopening up of Western lands for settlement and development was a primary motivator of thenumbered treaties, on the specific evidence, I find it was not the primary motivator here.[753] This conclusion is consistent with that of the JCPC in the Annuities Case in 1910. LordLoreburn held that in making the treaty, the Dominion Government/Canada had acted, not for thebenefit of the lands, but for distinct and important interests of its own.[754] I have found that apart from the Rainy River area, the prospects for agriculturalsettlement in the Treaty 3 area were perceived as being dismal.[755] I find that in 1873, Morris and the other Commissioners knew that there was considerablescepticism about the value of the Treaty 3 lands for agricultural and development purposes.Apart from the Rainy River area, the Treaty 3 area was viewed generally as unpromising foragricultural development.2011 ONSC 4801 (CanLII)[756] By the end of his cross-examination, Chartrand had essentially agreed with Lovisek thatwidespread agricultural uses were not expected in the Treaty 3 area away from the Rainy River. Ifind that the Commissioners did not think that the Treaty 3 area was conducive to agricultureapart from the Rainy River area.[757] I find on the evidence that while the Commissioners expected some settlement in theTreaty 3 area, primarily in the area of the Dawson Route along the Rainy River, they did notconsider settlement or indeed future development of the area to be as important as other nationalpriorities, including providing settlers safe transport to the West and facilitating the building ofthe CPR between Fort Garry and Fort William without undue security costs or delay by thedeadline of December 31, 1876.[758] The Commissioners viewed prospects for lumbering in "the land between" guardedly.The pine was thought to be small. Timber could not be floated towards settled Canada given thedirection of the flow of Treaty 3 rivers. While some mining was expected, it was not anticipatedit would interfere with traditional resource harvesting.[759] At the same time, from Canada's perspective, the continuation of the hunting, trappingand fishing rights was important to ensuring that the Ojibway did not become dependent uponrelief or welfare delivered by the Department of Indian Affairs.[760] In short, Canada and the Commissioners were primarily interested in securing the routethrough the Treaty 3 territory and less concerned with the prospects of the territory itself. Giventhe urgency of securing the Dawson Route and the completion of the CPR within the Treaty 3area by December 31, 1876, they needed to get the Treaty done.