Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 165[836] I find that the Commissioners distinctly held out to the Ojibway that they would havetheir ordinary avocations of hunting and fishing throughout the tract as in the past. I have basedthat conclusion in part on the evidence of Lovisek, portions of Chartrand's evidence, McKay'sstatement to the Commissioners that "of course I told them so," Nolin's note and Dawson's post-Treaty recollections.Why Did Morris Mention the Dominion in the Harvesting Clause?[837] I accept Saywell's evidence (April 6, 2009 at pp 60-67, 78) that in his role as DominionappointedTreaty Commissioner, and as a lawyer and ex-judge, Morris would have beenexpected to draft a significant legal document like Treaty 3 in a clear, precise manner and to uselegal terms that would achieve Canada's desired ends within the bounds of Canada's jurisdiction.[838] I find that Morris, "a trained Constitutional lawyer," whom all parties agreed was awareof the Boundary Dispute, specifically considered its likely potential negative effects on theOjibway were Canada to lose and Ontario held to be the owner of the Disputed Territory. Inmentioning Canada, Morris was not focusing on ownership rights. Morris clearly understood thatCanada could lose the Boundary Dispute, in which event it would no longer own the DisputedTerritory.2011 ONSC 4801 (CanLII)[839] I find Morris wanted to protect Canada's wards, the Indians. He deliberately mentionedthe Dominion in the Harvesting Clause and to use the words "taking up by Canada" in part sothat if Canada lost the Boundary Dispute, it would be able, using its s. 91(24) jurisdiction and theTreaty, to restrict Ontario's interference with Ojibway Harvesting Rights, if it were necessary.[840] If he had not taken steps to protect the Ojibway, he and the other Commissionersperceived that Canada's strategic interests could have been severely compromised, given theperception of all the Commissioners that unhappy Treaty 3 Ojibway could interfere with thebuilding of the CPR and the safety of the Dawson Route.[841] I have earlier reviewed the evidence relating to the timing of the appointment of theCommissioners in relation to the various Orders in Council and the differing instructions fortreaties in the Northwest Territories and for Treaty 3.[842] I reject Chartrand's evidence (January 22, 2010 at p. 30) based on his reliance on the June16, 1873 Order in Council that the Commissioners were simply assuming that Canada wouldalways be the beneficial owner of the Treaty 3 lands because they would always be in theNorthwest Territories under the administration of Canada. It appears that the June 16, 1873Order in Council on which Chartrand relied may not in fact have been operative to appoint the1873 Commissioners specifically to negotiate Treaty 3. Different directions existed with respectto treaties in the Northwest Territories and Treaty 3. In any event, I find Morris would not haverelied on an Order in Council to inform himself about the ownership of the lands. He was awareof the potential implications of the Boundary Dispute with respect to ownership.[843] More importantly, apart from any Order in Council, I have found that Morris clearlyunderstood that Canada's s. 91(24) obligations and its strategic interest in meeting those