Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 170numbered treaties and by the interpretations of other Commissioners who negotiated the numberedtreaties, it is apparent that the "taking-up" clause was not explained in the form it appears in theMorris template treaty. There is also no evidence in the treaty records that the Saulteaux would haveconsented to any regulation of their hunting and fishing treaty rights, had the issue of regulation beenintroduced during negotiations. The "taking-up" clause was not mutually agreed upon by parties toTreaty 3.[Emphasis added, footnotes omitted.][864] I find that McKay did not translate the Treaty word by word into Ojibwe. Because he didnot refer specifically to limiting of Harvesting Rights by regulation by Canada, he therefore didnot refer to limitation of Harvesting Rights by "taking up" by Canada either.[865] From Nolin's Note, Lovisek's and Chartrand's evidence already quoted and Dawson'spost-Treaty recollections, I find that Morris did not advise the Ojibway on October 3, and theydid not understand, that Canada could authorize land uses inconsistent with Harvesting Rightsand pass legislation to extinguish or limit Harvesting Rights. They certainly did not consider anyother government could have such power. They expected Canada to protect their HarvestingRights away from the Dawson Route or CPR right of way, not limit, extinguish or ignore them.2011 ONSC 4801 (CanLII)[866] The Plaintiffs recognize that although the Ojibway were not advised about Canada'spowers, the Commissioners knew it would be Constitutionally open to the federal government topass legislation limiting or extinguishing the Treaty rights, after consideration of the conflictsbetween Euro-Canadian uses and hunting and fishing. Alternatively, it could refuse to allow orauthorize such development. The Plaintiffs are not taking the position that the lack of disclosurethat Canada could limit their Harvesting Rights is a basis for altogether voiding the Treaty. Theyaccept that today, their rights can be limited by Canada provided it can meet the Sparrow test.However, they emphasize the unfairness that would occur if Ontario were allowed to limit theirHarvesting Rights under the Treaty given the lack of explanation or Ojibway understanding thateven Canada could do so.Findings Re The Parties' Understanding with respect to the Identity of the TreatyPartiesThe Ojibway's Understanding on the Identity of the Treaty Parties[867] In their written closing argument, counsel for Ontario submitted at para. 272: "that theOjibway understood that the Commissioners were representatives of the Queen, and that theTreaty they agreed to was ultimately between them and the Queen, recognizing that the Queenoperated through government officials;" at para. 274: "the Ojibway understood going into thenegotiations that a government of the Queen existed in Canada;" at para. 275: "they would nothave had any appreciation in 1873 that there were multiple Queen's governments in Canada.They had a concept of a generic Queen's government operating within Canada, and that it wasdistinct from the American government;" at para 279: "Morris was not attempting to persuadethe Ojibway that their Treaty was with a government rather than with the Queen;" at para 377(c):"they understood that the government they were dealing with was the Queen's government."