Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 164[831] After considering all the matters mentioned elsewhere in these Reasons, I find, asDawson said, the representation was made that the Ojibway would "forever" have theirtraditional Harvesting Rights as in the past.[832] In all the circumstances here, given the obstinate insistent nature of the Ojibway and theirfocus on resource harvesting, I find the Commissioners saw the extraordinary promise asnecessary to achieve their pressing goal of completing the Treaty. They understood Canadaneeded to secure the Dawson Route and to get the CPR built through the Treaty 3 territory byDecember 31, 1876. They saw the promise as being feasible, given their perceptions about thenature of the Treaty 3 territory and the compatibility foreseen between the Euro-Canadian usesthey anticipated and Harvesting Rights. Promises to protect hunting rights away from the area ofthe Dawson Route were seen as being feasible because Canada and the Ojibway knew thathunting did not generally occur close to the water. Sturgeon fishing and gardening areas could beprotected. They did not anticipate Euro-Canadian mining or logging activities that wouldsignificantly affect Ojibway traditional harvesting. In short, because the Commissioners foresawcompatibility between Euro-Canadian and Ojibway uses of land, they believed they could makethe promises on which the Ojibway were insisting and at the same time achieve Canada'spressing national objectives.2011 ONSC 4801 (CanLII)[833] I accept the evidence of Lovisek (November 23, 2009 at p. 82) that the October 1proposal was not incorporated into the Treaty. The Ojibway did not agree to losing their huntingrights whenever land was wanted. Apart from certain lands in the Rainy River Valley area wherethey did not traditionally hunt, I find they did not accept that they would be required to curtailtheir traditional subsistence harvesting and trading activities in their territory. I have not inferredthat they understood and accepted that as lands away from the right-of-way were brought intouse by Euro-Canadians, there would be increasing and cumulative negative impacts on theirharvesting (January 21, 2010 at pp 119-120.) Had they perceived that a treaty would bringserious detriments to or seriously interfere with their way of life, they would have refused tosign.[834] I find that on October 3, the Commissioners understood that the Ojibway, as aprecondition of signing the Treaty were demanding post-Treaty Harvesting Rights as in the pastaway from the Dawson Route and the CPR right-of-way [i.e., harvesting without significantinterference.] When McKay said, "Of course I told them so," the Commissioners were aware thatthe Ojibway understood the Commissioners were accepting their condition. When Nolin wrote"the Indians will be free as by the past for your hunting and wild rice harvest," he was translatingwhat McKay said to them in Ojibwe and was accurately recording the substance of thediscussion taking place about Harvesting Rights on October 3 with the knowledge and on theinstructions of the Commissioners.[835] I find that after the discussion recorded in the Nolin Note on October 3, the Ojibwayunderstood that the Commissioners were promising them that they would be able to continue tomake a living from harvesting as before (Lovisek, November 18, 2009 at p. 136) TheCommissioners understood that that is what they were promising.