Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 157[791] The major difference in Lovisek's and Chartrand's evidence on the Ojibwayunderstanding and intention with respect to post-Treaty use of lands if they did agree to enterinto a treaty was as follows: Lovisek opined on October 23, 2009 that away from the DawsonRoute and CPR right of way, the Ojibway did not agree to any significant interference with theirHarvesting Rights or to any decrease in the geographical area where they would be able to hunt.Chartrand said (December 15, 2009) that they understood that taking up of lands by Euro-Canadians would require them to make geographic accommodations, i.e., not to pursuetraditional harvesting activities on those lands once they were occupied.[792] While Chartrand opined (January 14, 2010 at p. 87) that the Ojibway understood thatEuro-Canadian activity could cause geographic limits on their hunting areas, he conceded thereis no specific evidence from the negotiations that they had any precise understanding of theextent of such limits. He said on January 25, 2010 at p. 102:A. …My understanding of what the Ojibway understood under the treaty was that there would be aprocess of accommodation for a Euro-Canadian presence in the treaty territory, accommodationinvolving necessarily shifts in certain areas in some instances where harvesting perhaps wereconducted…[793] I accept Lovisek's evidence, largely supported by Chartrand's by the end of his crossexamination,that all parties expected that in the Treaty 3 environment, the anticipated uses of theOjibway and of the Euro-Canadians would largely be compatible post-Treaty.2011 ONSC 4801 (CanLII)[794] I accept Lovisek's evidence on October 23, 2009 that the Ojibway expected resource useand sharing of benefits therefrom was to be reciprocal, at pp. 133-135 as follows:Q. Lending and borrowing of resources, that's something you refer to in a number of places in yourreport. What do you mean by that?A. That's essentially an Ojibway concept, Chief Sa-katche-way refers to it specifically. I described itas sharing. This is a characteristic of Ojibway culture which I earlier also described it in its moretechnical format as reciprocal altruism, and what it means essentially is that the Ojibway were willingto share their resources and certainly parts of their territory, as long as they also had reciprocal accessto the benefits of whatever was being introduced by outsiders.Q. Outside of the corridor, the railway corridor and the Dawson Route corridor, what kind of sharingdid they have in mind, in your view?A. Well, we have historical records which describe some of that understanding. The Ojibway used tofish for subsistence fishing as well some trade purposes in the lakes and the rivers, especially Lake ofthe Woods. They had no objection to Euro-Canadians fishing in the same waters, but they did objectwhen commercial fishing was introduced and was affecting their own subsistence and commercialfishing. So this is an aspect of what sharing would be.[795] I accept Lovisek's emphasis on the Ojibway expectation that if they agreed to give upexclusive use, they would be able to benefit from sharing in Euro-Canadian activities and that theextent of those benefits would affect their degree of tolerance/perception of Euro-Canadianinterference, i.e., whether they perceived the activities to constitute significant interference withtheir harvesting.[796] Although he did not say directly that the Ojibway expected "to share" use of land andresources after the Treaty, Chartrand gave answers in cross-examination in effect endorsingLovisek's view. Chartrand said in cross-examination that the Ojibway did not consider