Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 155[774] In 1873 the Commissioners understood that the Treaty 3 Ojibway were demanding morefor their "barren and sterile lands," their "swamp and muskeg," than the signatories of Treaties 1and 2 had agreed to receive in 1871 for their "magnificent" prairie lands. (See Archibald letter toSecretary of State dated July 22, 1871.)[775] I find that the Ojibway eventually were prepared to enter into the Treaty in 1873 onlybecause they believed that they were entering into a relationship with Canada that would providebenefits. The Euro-Canadian Commissioners were promising that the Treaty would provideeconomic opportunities and at the same time they could continue their traditional way of makinga living without significant interference.Re The 1869 Demands[776] The primary contested issue with respect to the 1869 Demands was whether they relatedto a right-of-way agreement or an agreement for the cession of the whole Treaty 3 area.2011 ONSC 4801 (CanLII)[777] Lovisek opined that the 1869 Demands related not to a treaty of cession, but to a right ofway/passage through the Treaty 3 lands and the building of some works along the Route. Shenoted that in 1869 when the demands were formulated, the only matter under discussion was aright of way agreement.[778] Counsel for Ontario submitted that the 1869 Demands must have related to a cession oflands, as they included a provision for the setting aside of reserves.[779] I have concluded, based in part on the evidence of Lovisek on the point, which I accept,that the 1869 Demands were made in respect of a proposal for a right-of-way. In 1869, theChiefs in the vicinity of the Dawson Route were the only participants in the discussions leadingto the formulation of the 1869 Demands. In 1869, the only matter under discussion was a right ofway. The Rainy River Chiefs requested reserves because they wanted to ensure that theirsturgeon fishing areas and gardens in the vicinity of the Dawson Route would be preserved fortheir own exclusive use.[780] In 1873, all Chiefs from the whole Treaty 3 area, not just the Chiefs from the vicinity ofthe Dawson Route, were present at and participated in the Treaty negotiations.[781] I have found that by 1873, the Chiefs understood they were being asked to share the useof all the Treaty 3 lands. Given my finding that in 1873 the Chiefs understood the territoryaffected by the Treaty was the territory of all the Chiefs in attendance, my findings with respectto the 1869 Demands are of secondary importance. I have found that all the Chiefs understoodand intended to give up exclusive use and share the use of the whole Treaty area, on certainconditions, which by October 3 they understood the Commissioners had agreed to meet.[782] In my view, the 1869 Demands are significant in two important respects. Firstly, theyshowed the Ojibway understood the value of their lands. Secondly, although originallyformulated in anticipation of a right-of-way agreement, by using them in the 1873 negotiations,the Ojibway were indicating they did not think that the consequences of giving up exclusive