Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 177Summary of Findings of Fact Part 1[912] I have rejected the evidence to the effect that the Ojibway understood they needed toenter into a treaty in 1873 due to a negative consciousness of their condition. The Ojibway werenot "desperate." They were in no rush to enter into any treaty. The key Treaty 3 Rainy RiverChiefs (i.e., the ones who controlled the Dawson Route) were "careless" about a treaty.[913] The Ojibway understood they were agreeing to share the use of their whole territory andresources with Euro-Canadians, so long as the sharing would not significantly interfere with theirown Harvesting Rights. They did not agree to give up their means of making a living, i.e., theirown use of resources or their continuing rights to subsistence harvesting on that land. TheCommissioners recognized that that was their condition for entering into the Treaty, and theyexpressly promised the Ojibway could keep those rights to induce them to do so.[914] Away from the rights of way, the Commissioners promised and the Ojibway understoodthat their harvesting would not be significantly interfered with. The Plaintiffs did not understandor agree that development and occupation of lands off the rights-of-way would result in alessening of the area where they could hunt.2011 ONSC 4801 (CanLII)[915] The Commissioners authorized McKay to convey their positive promises that theirHarvesting Rights would continue as in the past "as long as the sun shone and the watersflowed." On October 3, the Commissioners expressly promised that if the Ojibway had aproblem with non-fulfilment or Treaty enforcement, the Ear of the Queen's Government, i.e., theGovernment at Ottawa, would always be open and that their Treaty partner, Canada, wouldensure that the promises made by the Commissioners would be actively enforced.[916] Given their negative assessment of the overall potential of the Treaty 3 lands, theCommissioners made unusual promises they might not have been prepared to make in a morepromising environment. The Commissioners believed it was both feasible and in the nationalinterest to make the promises to the Ojibway that they did.[917] The Ojibway practiced sustenance harvesting directed to satisfying needs, not tomaximizing their harvest. The Commissioners/Canada and the Ojibway expected that thecontinuation of traditional harvesting practices would leave room for Euro-Canadians to share inthe use of the resources without significantly affecting Ojibway subsistence harvesting(Chartrand, January 18-19, 2010.) In other words, the Ojibway and the Commissioners expectedEuro-Canadian land uses and Ojibway traditional harvesting would be compatible.[918] After reviewing, comparing and analyzing all the evidence, while I have found that theOjibway knew they were compromising their right to exclusively occupy all their lands, they didnot understand and did not agree to an increasing erosion of their Harvesting Rights as Euro-Canadian development was authorized, let alone compromise their Harvesting Rights byagreeing to process-free development and extinguishment of their Harvesting Rights bywhomever the owner of the lands turned out to be.