Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 178[919] Morris deliberately made the reference to the Dominion in the Harvesting Clause andduring the negotiations, not because he expected that the Dominion would always be the ownerof the lands, but because he knew there was a good possibility that the Dominion would notalways be the owner. The Dominion was the Treaty partner of the Ojibway, and he expected andpromised that the Dominion would implement and enforce the Treaty promises pursuant to its s.91(24) jurisdiction. He held out the Dominion as their friend and ally. His promises wereconsistent with his understanding of the historic protective role of the Imperial Government andCanada after 1867 in standing between the settlers and the Indians and also the prospective"wardship" role he expected Canada to take after the Treaty was signed. He wanted to ensure thatCanada could keep its promises even if Ontario were found to own the land.[920] While the Commissioners understood and agreed that the Harvesting Rights promisewould require some management by the federal government, in light of the anticipatedcompatibility of Euro-Canadian and Ojibway uses, they did not expect that such managementwould be unduly onerous or would require intervention except in the rare event of conflictbetween Euro-Canadian uses and Ojibway Harvesting Rights.2011 ONSC 4801 (CanLII)[921] If Canada won the Boundary Dispute, the Commissioners expected multi-departmentalcooperation to manage the situation and to fulfill the Treaty promises, because it was recognizedthat security of travelers to the West, the CPR and the Dawson Route depended on thecooperation of the Treaty 3 Ojibway.[922] If Canada lost the Boundary Dispute, the Treaty made it clear that Canada expected toexercise its s. 91(24) jurisdiction, if necessary, to protect Treaty Harvesting Rights. Morrisunderstood Treaty Harvesting Rights reserved under the Treaty were an interest other than theinterest of the province in the lands.[923] In short, the Commissioners perceived that whether it won or lost the Boundary Dispute,by making the promise on which the Ojibway were insisting – reserving the Harvesting Rights tothe Indians in the Harvesting Clause and mentioning "taking up" by the Dominion – Canadacould protect its wards and at the same time could meet its pressing national objectives.[924] For all the reasons detailed within these Reasons, I have found that in the Treaty 3 area,the Commissioners promised more than a continuation of the right to hunt anywhere within theirtraditional territories. Away from the vicinity of the Dawson Route and the CPR, they intendedthat Ojibway Harvesting Rights would not be significantly interfered with without theauthorization of Canada. They would continue throughout the Treaty 3 lands "as long as the sunshone and the waters flowed."11. POST-TREATY EVENTS[925] In presenting the evidence in this section, rather than separating each issue into its ownsub-section, I opted to use mostly chronological order because many issues and events wereinter-related even though at first glance they might have seemed unrelated. For instance, in thefirst five years following the signing of Treaty 3, efforts were made to allocate reserves.