Keewatin v. Minister of Natural Resources

Part 11. Post-Treaty Events 201[1043] Counsel for the Plaintiffs submitted that Canada negotiated away Harvesting Rights towhich the Ojibway were previously entitled under the Treaty and passed the 1891 Legislationtaking them away without any notice to the Treaty 3 Ojibway.[1044] Vipond gave evidence that the 1891 Legislation was intended to solve the jurisdictionalproblems in the Disputed Territory that had arisen out of St. Catherine's Milling and Ontario'sinsistence that Canada did not have the power to allocate the Treaty 3 reserves within theDisputed Territory without its cooperation and consent.[1045] Counsel for the Plaintiffs submitted that the 1891 Legislation was a settlement by Ontarioand Canada in relation to the Disputed Territory only, negotiated at a time when Ontario had aclear upper hand and legal advantage arising out of the decision in St. Catherine's Milling.Canada apparently gave up Ojibway hunting and fishing rights on lands "taken up by Ontario" soOntario would agree to confirm the reserves that Canada had promised to the Treaty 3 Ojibwayand already purported to allocate.2011 ONSC 4801 (CanLII)[1046] Whether Canada had a duty to protect Treaty 3 Harvesting Rights more aggressively thanit did during the 1890-1894 negotiations is not to be decided here.[1047] 1895. Lovisek's report (Ex. 28) at p. 165-6 reads as follows:On April 26, 1895, Dawson again wrote to the Deputy Minister of Indian Affairs, Hayter Reed aboutthe subject of hunting and fishing rights in Treaty 3:[I]t was distinctly held out to them [the Indians] by the Commissioners acting for theGovernment [Treaty 3] that they would have the right to pursue their ordinary avocations ofhunting and fishing throughout the tract they were about to surrender and stipulationembodying this understanding appears in the Treaty (No. 3). …Dawson expressed what he thought the Saulteaux had understood:I was one of the commissioners appointed by the Government to negotiate a Treaty with theSaulteaux of the Ojibbeway Indians and as such was associated with Mr. W.M. Simpson in1872, and subsequently acted in the same capacity with Lieut: Governor Morris and Mr.Provencher in 1873. … In those days it was never contemplated that there would be such arun on their fisheries by the white man as has since occurred. Otherwise, the clause in favourof the Indians would have been made stronger. However, in view of the stipulation it couldnever in reason or justice have been supposed that the Government, through the commission,had intended to deprive the Indians of their chief means of subsistence, and it would bedifficult to find any justification for the manner in which the Indians , more especially thoseof Rainy River and the Lake of the Woods, have been treated in regard to their fisheries …[1048] Dawson again was reiterating that the Commissioners had expected compatibilitybetween Ojibway harvesting and Euro-Canadian uses, and that they had not expected that theOjibway would be subjected to resource depletion as a result of Euro-Canadian uses. Heexpressed the view that for Canada to allow it would be unjustifiable.