Keewatin v. Minister of Natural Resources

Part 11. Post-Treaty Events 184[951] Lovisek emphasized the importance of a handwritten note on the agreement in herevidence on October 22, 2009 at p. 94 (adopting Ex. 1, vol. 8, tab 367) as follows:It is understood that the fishing at the rapids opposite this Reserve is to be open to the Indiansgenerally.…The fishing opposite this Reserve for the Indians generally.It is understood that the fishing in the Rainy River opposite this Reserve is for the Indians generally.It is understood that the government will have the right to construct canal locks or other public worksto pass the Long Sault rapids - should they so desire in such case the Indians to be duly notified and ifthe fisheries should be destroyed thereby, the Indians to be fairly dealt with in consequence.[Emphasis added.][952] In his report, Ex. 60, Chartrand mentioned the Rainy River Reserve Agreement at pp.222-223:… The agreement confirmed the establishment of different reserve lands and contained provisionsregulating the geographic location of Aboriginal fishing activity outside reserves. The agreement wassigned on October 1st, 1875, between J.S. Dennis (Surveyor General at the Department of theInterior) and seven Rainy River area Chiefs and leading Band Representatives.2011 ONSC 4801 (CanLII)…The Rainy River area had historically been subject to relatively dense Ojibway occupation, as itfeatured regionally important sturgeon fisheries and rich soil permitting the development of atraditional Ojibway agricultural economic base (cf. section 6.1). No fewer than seven Bands wereestablished along Rainy River following Treaty 3. …Specific fishing areas outside reserves were … designated as "open to the Indians generally" … Theagreement stipulated in such an eventuality [construction of public works] the Indians would "be dulynotified and if the Fisheries should be destroyed thereby the Indians to be fairly dealt with inconsequence."[Emphasis added. Footnotes and references omitted.][953] Lovisek gave evidence that Dennis' promises in the Rainy River Reserve Agreement areconsistent with an intention by the federal government to set aside sturgeon fisheries in the RainyRiver area for exclusive Indian use. She commented that the federal government not onlyrecognized Treaty 3 Ojibway rights to fish within their reserves, but also agreed to protectsturgeon fishing only by the Indians in areas opposite several of the reserves. The governmentalso promised that if public works adversely affected Indian fisheries, it would compensate theOjibway. Even in the area of the Dawson Route, where the Ojibway had understood andaccepted there could be negative impacts on their fishing by reason of Euro-Canadian uses, thefederal government undertook to compensate the Ojibway for such negative impacts.[954] All the expert witnesses agreed that post-Treaty, if the Ojibway had concerns about nonfulfilmentof Treaty terms, Canada expected them to direct their complaints to Ottawa throughthe Indian Agents. Chartrand said on January 19, 2010 that Canada insisted they use the agencysystem as a "one-stop shopping place" for resolution of their complaints, whether the issue to beresolved had arisen on or off-reserve:Q: … what we see consistently is these complaints are directed to the federal government… thefederal government also actively started to say to the Indians, deal with the agent, don't start writing