Keewatin v. Minister of Natural Resources

Part 12. Findings of Fact Part II 230Re Ontario's Understanding of the Identity of the Treaty Parties in the Late 19 th and Early20 th Centuries as Evidenced by its Post-Treaty Conduct[1200] I accept the submission of counsel for the Plaintiffs that the circumstances surroundingthe Annuities Case and the submissions made by counsel for Ontario during argument arerelevant to Ontario's understanding of the identity of the Treaty parties in 1873.[1201] At the time the Annuities Case was argued, Ontario submitted that Treaty 3 was acontractual arrangement between Canada and the Ojibway, made without privity with ormandate from Ontario. In effect, Ontario was submitting that the governmental Treaty partnerwas Canada, not the Queen.[1202] Unlike Ontario's position before me that the principal purpose of Treaty 3 was to obtain asurrender of the lands and that Canada had no ongoing role to protect Harvesting Rights under s.91(24) after the Treaty was signed, I note that in the Annuities Case, Ontario submitted thatCanada made the Treaty for its own purposes and its own account [e.g., to secure the DawsonRoute, to further its objectives of opening the West for settlement, to satisfy the promises madeto British Columbia in the terms of Union to build the CPR, to look out for the interests of theOjibway under the Rupert's Land and Northwest Territories Order and more generally acting inits s. 91(24) capacity as the guardian of Indians.]2011 ONSC 4801 (CanLII)[1203] Unlike here where Ontario denied Canada's s. 91(24) role in the Disputed Territory after1888, submitting that after St. Catherine's Milling was decided, Canada had no ongoing s. 91(24)role, in the Annuities Case Ontario's "Statement in Answer" to Canada's claim referred toCanada's protective s. 91(24) role vis-à-vis the Indians in the Disputed Territory as follows:The Indians were, as they still are, the wards or pupils of the Crown represented by the Dominion,and some of the principal matters covered by the said Treaty relate solely or mainly to such wardshipor pupilage, and many of the obligations undertaken by the Dominion in and by the said Treaty relateto that subject, and not to the subject of the cession of the territory.[1204] For many years after 1873 and after the Annuities Case, Ontario continued to positionitself as a stranger to the Treaty. It consistently took the position that neither the federalgovernment nor the Ojibway could look to it for satisfaction of any Crown obligations under it.Ontario refused to respect the Treaty promises. Its continuing conduct is clear evidence that untilfairly recently, Ontario understood that the references to "the Government of the Dominion ofCanada" in the Harvesting Clause were references to Canada (not to the Queen) and that Canada(not the Queen) was the Treaty partner of the Ojibway.[1205] In 1915, for example, in refusing to confirm 7 of 8 of the Ojibway reserves that hadcontained good agricultural land in the Rainy River area, Ontario disregarded specific promisesCanada had made to the Ojibway during the negotiations that their gardens would be specificallyreserved to them for their exclusive use. After they lost their best agricultural land and wereforced as a result to depend more heavily on traditional harvesting than they would otherwisehave had to do, Ontario refused to allow them to hunt off reserve for subsistence (as I havefound, clearly contrary to the promises made in the Treaty.)