Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 171[868] I have accepted Lovisek's evidence and found that by October 2, the Ojibway understoodand accepted that the treaty-making authority of the Commissioners was coming from theGovernment at Ottawa. The Treaty would be implemented and enforced by the government thathad sent Pither, Provencher, Dawson and Morris. They understood that Pither, Indian Agent, andProvencher, an employee of Indian Affairs, would be particularly responsible for their welfare inpart by implementing the Treaty[869] The Ojibway understood that their Treaty partner, presented as a single defined unitaryentity would address their needs and enforce the Treaty promises. Morris had taken pains toexplain his relationship with the Council at Ottawa, the Government of Canada. The Ojibway,who clearly were determined to ascertain the power of the entity with which they were dealing,had satisfied themselves that the Queen's government at Ottawa was behind the negotiations andwould take responsibility for honouring the Treaty promises. Morris represented that if anythingwere wanting, those who did not do their duty in a proper manner would be dealt with. Hepromised that the ear of the Queen's government would always be open and that it would addresstheir needs and complaints.2011 ONSC 4801 (CanLII)[870] Given the clear evidence that Canada intended that Canada would be the Queen'sgovernment that would be their Treaty partner, counsel for Ontario was never really in a positionto submit that Canada and the Ojibway's mutual intention in 1873 was that the Treaty partieswould be the Queen and the Ojibway, at least in the sense that the Ojibway would be able to relyon the Queen or Her Majesty the Queen in Right of the British Government to fulfill the Treatyterms. Yet that is what counsel for Ontario submitted the Ojibway understood. He submitted ineffect that because the Ojibway were ultimately relying on the Queen, they did not care how theQueen's government was constituted. They did not care whether the Government of Canada wasa unitary government or whether the Queen's government consisted of multiple governments. Itdid not matter to them. Even though Canada viewed itself as the Treaty party, because Canadawas/is part of an indivisible Crown, Canada's intention was/is irrelevant. Because the Ojibwaywere ignorant of the constituents of the Queen's government in 1873, it does not and would notviolate the spirit of the Treaty or the Honour of the Crown to allow Ontario to limit TreatyHarvesting Rights.[871] Ontario's submission is essentially that because the Ojibway were relying on the Queenand understood that a generic Queen's government, by occupying lands, could deprive them oftheir Harvesting Rights, it would not be contrary to the spirit of the agreement to allow anothergovernment that is part of the Queen's government to extinguish their Harvesting Rights. Thefact that they did not know about the existence of Ontario and believed the Queen's governmentat Ottawa was a unitary government is irrelevant because the Ojibway were indifferent as to themake-up of the Queen's government. In effect, the Queen's governments of Ontario and Canadawere interchangeable to the Ojibway.[872] In my view, that submission overlooks the fact that the Ojibway wanted to form analliance, a relationship, with a power that could make and implement and would enforce theTreaty. The Ojibway understood the Council at Ottawa was that power. The Ojibway agreed todeal with the Council at Ottawa and were relying only on the Council at Ottawa.