Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 162[823] In rejecting Chartrand's evidence that on October 3, Nolin was referring to Morris'statement on October 1 that until the lands were wanted, the Ojibway could hunt and fish onthem, I have relied on the following:1. The sequence of all the contemporaneous notes suggests that on October 3, a Chiefsaid "we must have the privilege of traveling about the country." I have found therewas a discussion about it at that time.2. I accept that there is a translation issue with respect to travelling about the country. Iaccept Lovisek's evidence that the Chief's statement related to pursuing theirtraditional harvesting/way of life. I note that Chartrand agreed that travelling includedharvesting.3. I find McKay understood the demand made in Ojibwe to relate to traditionalharvesting. He said to the Ojibway, "The Indians will be free as by the past for yourhunting and wild rice harvest."2011 ONSC 4801 (CanLII)4. Nolin recorded the exchange. "The Indians will be free as by the past for their huntingand wild rice harvest." McKay then said in English to the Commissioners, "Of courseI told them so."5. Chartrand agreed in cross-examination that if "Indians will be free as by the past fortheir hunting and wild rice harvest" was what McKay said in Ojibwe to the Ojibwaybefore he turned to the Commissioners and said, "Of course I told them so," inEnglish, then McKay made no reference to any limitation of their Harvesting Rights(January 25, 2010 at pp. 110-141.)6. Dawson made it clear in his post-Treaty correspondence that the Commissionersinduced the Indians to enter into the Treaty by telling them that they would "forever"have their fishing [i.e., Harvesting] rights. Dawson's recollection is consistent withthe way Nolin recorded the exchange. Although many of Dawson's comments weredirected to fishing rights (given the focus of the concern at the time), he did refer tohunting and fishing, for instance, in his April 25, 1895 letter to Reed. I acceptLovisek's evidence (October 22, 2009 at p. 117) that Dawson would not have drawnany distinction between fishing and Harvesting Rights. The Harvesting Clause relatedto both. As I have already found, "hunting and wild rice harvest" referred to making aliving from all forms of harvesting. In his subsequent correspondence, Dawson madeno reference to the Harvesting Rights being limited by "taking up" of lands,indicating that the focus of the Commissioners' discussion in 1873 was aboutHarvesting Rights and not about ownership rights or under what circumstancesHarvesting Rights could be limited or by whom.7. Morris had a copy of the Nolin Notes. He edited and attached them to his OfficialReport of the Treaty without comment, suggesting he did not disagree with theircontent.