Keewatin v. Minister of Natural Resources

Part 11. Post-Treaty Events 196kept that promise in allocating the reserves that it had and in making the Rainy River ReserveAgreement.[1016] Now, more than 15 years after the promises had been made, Ontario was calling intoquestion those reserve allocations. The Ojibway were not advised, consulted or asked to makerepresentations during the ensuing negotiations between Canada and Ontario, just as they had notbeen consulted or represented during the St. Catherine's Milling litigation.[1017] After St. Catherine's Milling, Ontario put Ojibway Harvesting Rights in jeopardy, takingthe position that as owner of lands in Ontario, it could extinguish their Treaty Harvesting Rightson lands simply by authorizing their use.[1018] Chartrand's report, Ex. 60, contains the following at pp. 357-359:…On December 17, 1890, Lawrence VanKoughnet (Deputy Superintendent General) presented hisassessment of the principles established at the November 28th conference to his superior, EdgarDewdney (Superintendent General). Respecting the Treaty 3 issues quoted above, VanKoughnetindicated he essentially approved the principles agreed to, as follows:2011 ONSC 4801 (CanLII)… The proposition contained in (3) for the appointment of a joint commission to settle anyquestions as to the establishment of the Reserves according to the rules laid down inparagraph (2) appears unobjectionable, provided that, as stated in clause (3), the Reserves asat present selected and surveyed be not interfered with, except some good reason presentsitself for intervention.… However, VanKoughnet proposed that Lake of the Woods fisheries be reserved for the exclusiveuse of Treaty 3 Indians, on the grounds that these fisheries were vital to the basic subsistence ofsignatory bands and that severe interference by non-Aboriginal fishermen could endanger the wellbeingof Aboriginal communities:With regard to the subject of clause (4), namely that the fishery regulations be made by theOntario government as respects all the territory belonging to that Government in Treaty 3outside of Indian reserves, the undersigned considers that it would be well if such powerwere vested in the Local Government, on the understanding, however, that as regards thefisheries of the Lake of the Woods, they should be reserved for the common use of theIndians of Treaty 3, as from this Lake they have always been in the habit of deriving theirprincipal sustenance, and, should they be excluded therefrom, or should other fishermen beallowed to establish fisheries thereon, it would in either case prove most disastrous to theIndians.[Emphasis added; references omitted.][1019] That proposal was later replaced with one that exclusive fishing rights to waters betweenheadlands adjacent to reserves be secured to the Indians. A provision to that effect was includedin the 1891 Legislation but ultimately was not insisted upon by Canada. [The provision wasremoved in 1915.] (Chartrand's report, Ex. 60, at p. 358.)[1020] In his Report, Ex. 60, Chartrand quoted at p. 224 from David T. McNab, TheAdministration of Treaty 3: The Location of the Boundaries of Treaty 3 Indian Reserves inOntario, 1873-1915, as follows:The idea of headland to headland water boundaries for Treaty 3 Indian reserves in Ontario firstappeared in the legislation of 1891 and then again in the 1894 agreement in the context of this