Keewatin v. Minister of Natural Resources

Part 11. Post-Treaty Events 215have objected. That they did not, proves they must have agreed in 1873 to "taking up" by ageneric Queen's government, including Ontario. Ontario seems to have assumed that anydevelopment should have triggered Ojibway complaints. In the absence of recorded complaintsabout "taking up" by Ontario, this Court should conclude that the Ojibway understood andagreed in 1873 that their Harvesting Rights could be extinguished as lands were developed.[1118] I have found that in 1873 the Ojibway agreed to share the use of the land and resources. Ihave accepted Lovisek's evidence that she would not have expected them to complain unless thatsharing significantly interfered with their harvesting activities.[1119] Counsel for the Plaintiffs emphasized that they do not question Ontario's jurisdiction toauthorize land uses within Ontario. They do challenge its right to authorize land uses of suchintensity, extent or duration that they have a significant adverse impact on their HarvestingRights. They do challenge Ontario's right to "take up" lands so as to limit their rights to hunt andfish as provided for in Treaty 3.2011 ONSC 4801 (CanLII)[1120] In giving evidence about Euro-Canadian development post-Treaty in the Treaty 3 area,neither Epp nor Williams commented on the effect or impact of that development on Ojibwaytraditional harvesting. They were not asked and did not undertake any analysis of impact onHarvesting Rights.[1121] Epp conceded that Ontario had not asked him to identify the location of traditionalhunting and trapping areas, wildlife or animal populations. He could not say whether any of theEuro-Canadian land uses about which he gave evidence had significantly interfered withOjibway traditional harvesting. Had he been asked to do so, he said he might have sought theassistance of an ethno-historian or an anthropologist. He would have had discussions with theOjibway. (Epp, January 27, 2010 at pp. 73-75.) He could not assist this Court on the issue ofOjibway knowledge about the extent of the Euro-Canadian land uses or the level of governmentthat had authorized them (Epp, January 29, 2010.)[1122] [Von Gernet and Chartrand both gave evidence that to assess impacts on TreatyHarvesting Rights would be a complex and difficult exercise. To properly gauge impact, adetailed analysis would be necessary, involving an assessment of multiple factors, including thelocation of Ojibway harvesting activities and the type of Euro-Canadian land uses; the extent ofEuro-Canadian resource exploitation; the difficulty of accommodating the Euro-Canadianactivities; the availability to the Ojibway of alternative resources; the benefits the Ojibway werederiving from Euro-Canadian land uses, the cumulative effects on Ojibway harvesting of otherEuro-Canadian land uses (because an isolated Euro-Canadian activity that might not have beenobjectionable when the land was largely untouched, might have become objectionable by 2010,given intervening diminishment of other resources and territorial encroachment.) (Von Gernet,December 4, 2009; Chartrand, January 18, 2010.)][1123] In their evidence, neither Epp nor Williams distinguished clearly between development inKeewatin and in the Disputed Territory.