Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 160Finding re Understanding of Canada re Likely Compatibility of Traditional Harvesting andAnticipated Euro-Canadian Land Uses[808] Chartrand said in cross-examination on January 25, 2010 at pp 106-7, "Morris wasalluding to a situation after the treaty in which lands outside reserves would not be immediatelytaken up, at least in his mind, to -- on a scale that would significantly impact the Ojibway way oflife."[809] I find that after the Treaty was completed, both Canada and the Ojibway expectedtraditional harvesting activities to continue on Treaty 3 lands away from the Dawson Route andCPR. Chartrand gave evidence similar to Lovisek's that they understood that farming andagricultural settlement would happen along the Rainy River Valley. Their fishing and gardeninglocations would be protected, i.e., preserved for their exclusive use, in the vicinity of the DawsonRoute. Ojibway hunting usually took place in the interior and away from the Dawson Route.2011 ONSC 4801 (CanLII)[810] I find the Commissioners anticipated compatibility of Euro-Canadian uses with OjibwayHarvesting away from the Dawson Route.Finding re Were the Harvesting Promises Broadened on October 3, 1873/Did the OjibwayAccept Morris' October 1, 1873 Proposal? Had the Commissioners Amended it by October3, 1873?[811] I have outlined Chartrand's evidence of January 21, 2010 at pp. 86-88 in which, ininterpreting the Harvesting promise, he focused "on the direct explanation given by Morris onOctober 1." He maintained traditional harvesting was not discussed on October 3. The Ojibwaydid not seek clarification about Morris' October 1 proposal. "If the Ojibway presented noconcerns or questions regarding the principle of taking up … Morris would have had nocompelling reason to explain the provision in further detail."[812] I have outlined Lovisek's opinion that the Ojibway did not accept Morris' October 1proposal about hunting and fishing until the lands were wanted, and that there was a furtherdiscussion of Harvesting Rights on October 3 when a Chief demanded "the privilege of travelingthrough the country" and Nolin recorded that "the Indians will be free as by the past for theirhunting and wild rice harvest."[813] I accept Dr. Nichols' interpretation of the meaning of "hunting and wild rice harvest" tomean "to make a living from resources," to which Lovisek referred, as set out in paragraph 528above.[814] I have earlier referred to the Chief's demand on October 3, 1873, heard by McKay inOjibwe but translated into English as "we must have the privilege of travelling about thecountry." I have found that McKay understood that demand to relate to their ability after theTreaty to be able to make a living as in the past on all of the Treaty 3 lands. I find McKay said tothe Ojibway in Ojibwe, "the Indians will be free as by the past for their wild rice harvest andhunting," that Nolin recorded McKay's words verbatim in his October 3 note and then McKayturned to the Commissioners and said in English, "Of course I told them so."