Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 175[894] Ontario could not contend that the Ojibway understood that they would look not only toCanada to fulfill its obligations but also to Ontario to honour whatever obligations Ontario owedto the Ojibway under the Treaty vis-à-vis Harvesting Rights.[895] The Ojibway did not intend to deal with various emanations of the Crown. Chartrand andcounsel for Ontario emphasized that the Ojibway were not aware of multiple governments inCanada. Counsel for Ontario placed great reliance on the assertions of Von Gernet and Chartrandthat the Ojibway did not understand or care what level of the Queen's government they weredealing with.[896] I have accepted Lovisek's evidence, supported by Chartrand's evidence before he madehis "corrections," and I find that the Ojibway were aware that they were dealing with the Queen'sGovernment at Ottawa, presented to the Ojibway as a unitary government.[897] I accept Chartrand's evidence given before he made his "corrections" that the Ojibwayunderstood they were dealing with individuals who belonged to a central government at a placecalled Ottawa.2011 ONSC 4801 (CanLII)[898] Even if they did not understand all the niceties of Canadian Constitutional jurisdiction, Iam of the view that any lack of knowledge or confusion in this regard should not be used to thedisadvantage of the Ojibway.[899] Bearing in mind the principles of treaty interpretation set out later in these Reasons, I donot accept Ontario's submission that if the Ojibway did not appreciate that the Government atOttawa had Constitutional authority and responsibility for Indians and treaties, that shouldground an interpretation of the Treaty that would allow Ontario to limit Ojibway HarvestingRights in a manner I have found would be contrary to the specific intention of theCommissioners and Canada, who clearly intended reference to the Dominion to refer to Canadaand only Canada, and in a manner that would deprive the Ojibway of Treaty Rights both theyand Canada understood they were being promised and upon which the Ojibway were insisting ascondition of entering into the Treaty.[900] Ontario's submission about Ojibway reliance on the Queen is clearly an attempt to use thetechnical Euro-Canadian legal concept of indivisibility of the Crown to limit Treaty HarvestingRights in a way that was not contemplated by Canada or the Ojibway in 1873. I will return laterto the "honour" Ontario is demonstrating in making such a submission.[901] Even if I had concluded that the Ojibway were mistakenly placing some reliance on theQueen to ensure that the promises of her Government at Ottawa were kept, that would not havechanged my overall conclusion.[902] Again, bearing in mind the applicable principles of treaty interpretation, I would havedeclined to use such a technical concept to defeat Treaty Rights, contrary to the mutual intentionof Canada and the Ojibway and contrary to the plain meaning of the Harvesting Clause itself,which did not specify that the Queen could extinguish the Treaty Harvesting Rights but that theycould be limited or extinguished only by "taking up" or authorization of "taking up" by Canada.