Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 159significant limitations on their Harvesting Rights. I do not infer that they understood that as landsaway from the Dawson Route and CPR were developed as mutually anticipated, there would beincreasing and cumulative negative impacts on their way of life, which in the words of counselfor the Plaintiffs, would result in "extinguishment by slices."[803] The Ojibway understood that they were agreeing to allow some Euro-Canadianoccupancy (Lovisek, October 23, 2009 at p. 88) and they would be sharing the use of the landswith and benefitting from the use of the lands by the Euro-Canadians (Lovisek, November 18,2009 at p. 144.) They expected, for example, to share in the benefits of anticipated timberoperations, including receiving wages for labour. (Lovisek, October 23, 2009, p. 140.)[804] Lovisek gave evidence the Ojibway understood they were being promised the use oflands they were accustomed to using. I accept her evidence that the Ojibway understood notsimply that they could forever hunt "somewhere" in the Treaty 3 territory; the promise was withrespect to lands about which they had some knowledge, "not just so long as there's somewherethey can go in Treaty 3" (Lovisek, November 23, 2009 at pp. 90-91.)2011 ONSC 4801 (CanLII)[805] I note that even Von Gernet, who had opined that it was "incomprehensible" that theOjibway did not understand they were giving up their lands, conceded that both partiesrecognized that the Ojibway would, at the very least, be able to hunt and fish, harvest wild rice orotherwise engage in the usual activities on most of the lands being ceded, but with the caveat thatat least some of those lands would be subject to immediate "taking up" for settlement or otherpurposes.[806] Although Von Gernet did not identify which lands he had in mind, I find that both he andChartrand were contemplating possible agricultural settlement of lands in the Rainy River area,the only lands in the Treaty 3 area known at the time to have agricultural potential. Von Gernetconceded the Ojibway understood there would be lots of land on which they could engage intheir usual activities and that their reserves would include and protect their sturgeon fishing andgardening locations primarily located in the Rainy River area. He postulated that their reserveswould also serve as refuges "where they could engage in a new mode of subsistence in the eventthat their foraging lifestyle became unfeasible." With respect to the anticipated agriculturalpotential of the balance of the Treaty 3 lands, Von Gernet said that while the Ojibway hopedtheir traditional lifestyle would continue in perpetuity, "any prudent Ojibway leader" would haveunderstood that things would not stay the same forever. In other words, he was suggesting ineffect that they should have understood, based on their knowledge of the raison d'être of treatiesin general, that after the Treaty was signed, their Harvesting Rights could be progressivelyextinguished (Von Gernet, December 11, 2009.)[807] I reject that evidence of Von Gernet's because of the specific evidence relating toOjibway knowledge here.