Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 1638. This interpretation is consistent with the Commissioners' October 3 offer of perpetualprovision of ammunition and twine for hunting and fishing purposes.[824] Chartrand assumed that Morris had not changed his position between October 1 andOctober 3. Because of that assumption, he also assumed that McKay would not say, "Of course Itold them so" in relation to a question relating to continuing Harvesting Rights. (He did sayMcKay was confirming something he had already discussed with them, although he disagreed asto what that was.)[825] I have considered the submission of counsel for Ontario based on Chartrand's evidencethat McKay could not have believed the Ojibway would be free to pursue their harvestingwithout limitation after the Treaty was signed because he had heard Morris' more limitedpromise on October 1. A member of Morris's entourage, Mckay would not have failed to conveythe limitation Morris had expressed on October 1. It would have been "very strange" if McKayhad disregarded Morris' October 1 statement and said, "Of course I told them so."2011 ONSC 4801 (CanLII)[826] I accept that it is unlikely that McKay would have flouted Morris' instructions in hispresence. It is more likely that McKay was doing what Morris had instructed him to do. I findMcKay's statement on October 3, "Of course I told them so," is indicative that by October 3,Morris and the other Commissioners had decided to broaden their previous more limitedproposal to accede to the Ojibway demand for continuing Harvesting Rights as in the past, asDawson said, to "induce" the Ojibway to enter into the Treaty.[827] The point "that they would have forever have the fisheries…was strongly insisted uponand it had great weight with the Indians who for some years previously had persistently refusedto enter into any treaty" (Dawson's letter, May 28, 1888, Ex. 1, tab 552.)[828] I find the Commissioners knew the Rainy River Ojibway Chiefs were indifferent aboutentering into the Treaty and it was unlikely they would have accepted Morris' October 1 termseven if the Treaty 3 Ojibway away from the Route had agreed to do so. The Rainy River Chiefsunderstood they were key players in the negotiations because they controlled the Dawson Routeand it was their agreement that was needed.[829] At the Council preceding resumption of the formal negotiations, the Chiefs in thepresence of McKay and Nolin had "a most exhaustive discussion." I find they resolved to "acceptthe Governor's terms with some modifications." They resolved to make it clear they weredemanding continuing Harvesting Rights. On October 3, in the presence of the Commissioners,the Chiefs sought and received confirmation that their Harvesting Rights would continue as inthe past.[830] I find that by the time the Treaty was signed on October 3, 1873, McKay and theCommissioners understood the Ojibway were insisting on a promise of perpetual HarvestingRights and understood that that is what they had been given.