Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 169text. The points could not have been forgotten in this short time, especially in light of the presence ofan Ojibway oral narrative recorder.Since James McKay's Ojibway language address was not recorded (in writing) and no oral traditionnarrative of the address appears to have survived, the extent to which he presented a complete andaccurate account of the contents of the Treaty 3 text remains an unresolved historical issue. Thehistorical questions and problems identified by scholars relating to the lack of Ojibway reaction to thedifferences the Treaty 3 text content relative to their understanding of the oral treaty agreementappears unresolvable. These questions and problems are sufficiently marked, to put into question theextent to which the written text of Treaty 3 can be used as a basis on which to describe or reconstructan accurate and complete understanding of the Treaty 3 agreement by the Ojibway signatories.Simply put, there are strong historical and ethnohistorical grounds on which to posit that the Englishlanguage contents and provisions of the text of Treaty 3, do not necessarily reflect the exact natureand full scope of the Ojibway understanding of the oral treaty agreement reached with AlexanderMorris. As a source of historical information on how the Ojibway conceived their treaty agreementwith the Crown, the text of Treaty 3 must be used with caution.[Emphasis added; references omitted.[863] Lovisek's report (Ex. 28) contains the following:At pp. 182-3:Both the Treaty Commissioners and the Saulteaux understood and agreed that hunting and fishingrights were reserved over their territory. There are no references in the records which were written incolloquial speech by Dawson or Nolin, or in the Shorthand Reporter's account which describe theapplication of regulations to hunting and fishing or which limited hunting and fishing rights…2011 ONSC 4801 (CanLII)The Saulteaux at the time of Treaty 3 had no experience with Euro-Canadians who claimed authorityto regulate their hunting and fishing. Since the Ojibwe language has a word for regulation,inâkonigewin, had the word been used by Lieutenant-Governor Morris or the interpreters andunderstood by the Saulteaux, it would likely have been reported in the various Treaty documents. TheOjibwe language also has a word for 'taking up' in the sense of: "I take it from him" which translatesto nin mamawa.The historical records indicate that the taking-up clause was not considered by Morris to be ofsufficient importance to warrant discussion either with Ottawa, or the Saulteaux. ………[T]here is no evidence from the historical record that Lieutenant-Governor Morris had the articlesof the Morris Document translated literally and read to the Saulteaux by McKay or explained. It isprobable that McKay in reading the final terms of the treaty before it was prepared 'in an hour', reliedupon the shorter and easier to translate agreement, such as the Nolin Notes.At pp. 186-187:There is no evidence in the historical records of the Treaty 3 negotiations that the full context of the"taking-up" clause as drafted in the Morris Document was discussed, explained, consented to by theSaulteaux or recorded in the Dawson Notes, Nolin Notes, Paypom Treaty, or the ShorthandReporter's account. That the Saulteaux were not informed and did not consent to the "taking-up"clause is reflected in the Shorthand Reporter's Account, the Nolin Notes, the Paypom Treaty, DawsonNotes, and subsequent information provided by Simon J. Dawson in 1888 and 1895 (as noted above).The treaty of record comprises the Nolin Notes, Paypom Treaty, Dawson Notes, the ShorthandReporter's Account and the Morris Document, and not the Morris Document alone. When thesedocuments are considered in conjunction with the statements made by Morris in the subsequent