Keewatin v. Minister of Natural Resources

Part 12. Findings of Fact Part II 234[1234] Until recently, the Ojibway did not object to the federal government and the federalgovernment took no role with respect to forestry activities involving selective cutting that offeredthem benefits and did not drive away the animals. Fobister said it was not until the introductionof wide-scale industrial clear-cutting [perceived by the Ojibway as being outside the range ofcompatible activities] that they complained to the federal government, expected it to "take up"their cause and when it did not, eventually decided to take action on their own behalf.Re Ontario's Evidence of Euro-Canadian Development in Ontario 1873-1930[1235] Prior to 1894 in the Disputed Territory or prior to 1912 in the Keewatin Lands, there was,in my view, insufficient evidence upon which this Court could have properly concluded that theOjibway were aware that Ontario was authorizing land uses that significantly interfered/wereincompatible with Treaty Harvesting Rights so as to engage the federal interest under s. 91(24)and the Treaty or that the Ojibway viewed any particular uses as significant interferences withtheir Treaty Harvesting Rights sufficient to engage Canada's s. 91(24) jurisdiction or requiringCanada's authorization under the Treaty.2011 ONSC 4801 (CanLII)[1236] In my view, Ontario failed to recognize that there could be compatibility betweenAboriginal and Euro-Canadian land uses and if there were, there would be no reason for theOjibway to object. Ontario ignored that the parties mutually understood and anticipated that theOjibway and Euro-Canadians would be sharing the use of the resources.[1237] The evidence of Williams and Epp dealt with land uses per se, not land uses thatsignificantly interfered with Treaty Harvesting Rights. It did not address any of: (1) the thresholdfor federal engagement; (2) what I have found to be a mutual expectation of compatibilitybetween Ojibway and Euro-Canadian uses; or (3) the room for sharing resources.[1238] The Epp and Williams evidence is not probative of Ontario's assertion that the Ojibwaymust have understood and accepted that Ontario could authorize land uses that wouldsignificantly and increasingly interfere with their Treaty Harvesting Rights.[1239] Within the Disputed Territory, I note that neither Epp nor Williams could say whether theOjibway knew it was Ontario [not the Dominion] that was authorizing land uses after 1890.[1240] Chartrand's report, Ex. 60, contains the following:At pp. 366-367:Available documents do not permit a precise determination of the time and circumstances underwhich different Aboriginal signatories to Treaty 3 developed an understanding that non-Reservelands surrendered by the Treaty came under provincial jurisdiction. However, available documentsshow that such an awareness had developed among a number of Treaty bands towards the mid - late1890s.At p. 368:One set of circumstances in which Treaty 3 Ojibway may have gained knowledge of Ontario'sjurisdiction over non-Indian Reserve lands and natural resources, involves their growing employmentin lumber and mining industries beginning in the 1890s. By this time, in the aftermath of the St.Catherine's Milling decision, these industries (outside Reserves) operated exclusively under Ontario