Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 176[903] In any event, I have accepted the submission of counsel for the Plaintiffs and theevidence of Lovisek that the Ojibway cared about and relied upon the power of the Council atOttawa to implement and enforce the Treaty provisions and were not literally relying on thepower of the Queen.[904] I find the Ojibway were aware of other governments in Canada but they understood theywere and would be dealing only with the Government at Ottawa.[905] Von Gernet's cross-examination on December 3, 2009 contains the following at p. 89:Q. But the establishment of a new government and a new province in the Red River was a major partof the sequence of events that's happening between 1870 and 1873, is that fair?A. Yes.Q. And I suggest to you that the Saulteaux, in some way, were aware that there was anothergovernmental power or force growing up at the Red River; is that fair?A. Yes.[Emphasis added.][906] Unlike Von Gernet who conceded the Ojibway were aware of another government, forinstance at Red River, Chartrand at trial maintained they did not understand there were distinctEuro-Canadian governmental bodies operative in Canada.2011 ONSC 4801 (CanLII)[907] I have considered the submission of counsel for Ontario on the issue of Ojibwayunderstanding regarding the identity of the Treaty party, that as a layperson, I cannot interpretthe evidence as well as properly qualified ethno-historians. I note that the ethno-historians didnot agree on the Ojibway's ultimate reliance on the Queen. Where they conflict, I accept theevidence of Lovisek that the Ojibway were relying on Canada and only Canada. I reject theevidence of Von Gernet and Chartrand with respect to the Ojibway's reliance on the Queen.Canada's Understanding on Identity of the Treaty Parties[908] While the Commissioners understood in a broad sense that Her Majesty the Queen wasbeing named in the Treaty, it was clear to them that "Indians and Land Reserved for the Indians"were exclusively a Canadian federal responsibility. Canada was not looking to Government ofthe United Kingdom, the Queen or the Government of Ontario to fulfill the Treaty promises theywere making on behalf of Canada. They intended the reference to the Dominion in theHarvesting Clause to be to Canada.[909] The clause Morris inserted in the Treaty relating to limitation of Treaty Harvesting Rightsdid not refer to the Queen or to a generic government, but to the Dominion, i.e., the Governmentof Canada. The process he set out to be followed in limiting Treaty Harvesting Rights plainlyand clearly required authorization from the Canadian government.[910] The Canadian government approved the terms of the Treaty itself by Order in Council.[911] In short, I have found it was not irrelevant to Canada whether Canada or Ontario wouldhave the right to limit or remove Treaty Harvesting Rights. On the contrary, I find that it wasimportant to the Commissioners and to Canada that Canada have this power.