Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 154[766] On the evidence before me I find that as of 1873, the Treaty 3 Ojibway were also awareof the promises made to their kin to the east during the Robinson Treaty negotiations in effectthat their Harvesting Rights would be virtually unaffected. By 1873 that perception had beenborne out, as little development had occurred in the Robinson Treaty region. I find that in 1873,the Treaty 3 Ojibway perceived that their kin to the east who had signed the Robinson Treatieshad received what they had been promised: they had been able to receive annuities withoutsignificant negative effect on their Harvesting Rights.[767] I reject Von Gernet's evidence that the Robinson signatories would not have believed theharvesting promises made to them in 1850. I do not accept his assertion that the Treaty 3Ojibway would have understood the negative implications of cessions of lands in respect ofresources to be the same as those in the earlier Upper Canada Treaties.[768] I reject the evidence of Chartrand in chief and of Von Gernet that in 1873 the Ojibwayhad a negative consciousness of their condition.2011 ONSC 4801 (CanLII)[769] I reject the evidence of Von Gernet and Chartrand to the effect that the Ojibwayunderstood they needed to enter into a treaty in 1873.[770] I find the Rainy River Chiefs were "careless about entering into a treaty," meaning theywere in no rush to make a deal. They did not believe they needed to enter into a treaty, or thatthey should accept the best deal they could negotiate whatever it might be. They were under noimmediate threat. The resources that provided their sustenance were not diminishing. Away fromthe Dawson Route, they were not facing large influxes of Euro-Canadian intruders. Settlers werepassing through their territory, not settling on it. They were quite capable of all together sayingNo to any treaty proposal.[771] Unlike their kin to the West who had much more fertile and valuable land (who hadentered into Treaties 1 and 2 in 1871), they had twice refused to enter into a treaty in 1871 and1872. They perceived they were negotiating from a position of strength. They would not behustled. As Lovisek said on October 22, 2009 at p. 26, they were taking a wait and see approach.They would take their time.[772] The Treaty 3 Ojibway loved their lives and their country (Lovisek, November 16, 2009 atp. 39.) They relished their way of life, including their seasonal round of trapping, hunting,fishing and harvesting over the breadth of their territories. They valued their customs and werenot prepared to give them up. They had shown resolve in protecting their land and their culture,politely but firmly rejecting Christianity. They liked being Indians. They were "proud,""spirited," "saucy," "obstinate," "independent." Euro-Canadians had marvelled that they hadshown no sense of inferiority and were "incapable of showing gratitude."[773] I accept the evidence of Lovisek and parts of the evidence of Chartrand that they wereprepared to embrace a Euro-Canadian presence only if it would be compatible with theircherished way of life, and would not cause serious interference with their hunting, fishing andtrapping - central aspects of their distinctive culture central to their identity.