Keewatin v. Minister of Natural Resources

Part 12. Findings of Fact Part II 235Government licenses and / or patents. As documented in section 5.7, Treaty band memberemployment in lumber and mining operations became sufficiently significant economically in thisperiod in the southern portion of the Treaty 3 territory to become consistently noted in annual reportsof the Department of Indian Affairs. These records show that significant employment in lumber andmining had extended to the northern (English River) portion of Treaty 3 by the first decade of the 20thcentury.At p. 372:…Band members on reserves would have been typically informed of provincial decisions affectedon-Reserve matters indirectly, through communication to and from Indian Agents who in turn, soughtand obtained required information from superiors in the Department of the Indian Affairs. Thus, insuch instances, Aboriginal knowledge of Ontario's jurisdiction would have been 'filtered' through theDepartment of Indian Affairs.[Emphasis added; references omitted.][1241] The Plaintiffs submitted that in any event, evidence respecting lack of complaints about"taking up" by Ontario in the Disputed Territory after 1894 was not directly relevant, because the1891 Legislation allowed Ontario to "take up" lands. By 1894 within the Disputed Territory,Canada had negotiated away the Harvesting Rights of the Treaty 3 Ojibway on lands "taken up"by Ontario.2011 ONSC 4801 (CanLII)[1242] I have held elsewhere in these Reasons that the 1891 Legislation that came into effect in1894 took away Harvesting Rights from the Ojibway on lands taken up that they otherwisewould have had under the Treaty. I have held the 1891 Legislation amended the Treaty byallowing Ontario to "take up" lands in a manner visibly incompatible with Treaty HarvestingRights. As a result, the federal interest could not have engaged after 1894 to protect HarvestingRights on those lands. Even if there had been otherwise satisfactory evidence of knowledge andlack of complaints, in my view it would not have been possible to make much of Ojibway lack ofcomplaints about land use authorizations per se after 1894 within the Disputed Territory.[1243] I reject the submission of counsel for Ontario that since the Ojibway were unaware of the1891 Legislation, they should have complained about loss of Harvesting Rights by reason of"taking up" in the Disputed Territory. I think it unlikely that had Canada received complaintsabout matters it had expressly sanctioned under the 1891 Legislation, it would have neverthelesstaken pains to record them. Canada would surely not have acted to address complaints aboutactivities it had expressly authorized by legislation.[1244] Similarly, it seems unlikely that federal Indian Agents would have gone to any lengths toexplain to the Ojibway the adverse effects that the federal legislation would have inextinguishing Harvesting Rights on lands in the Disputed Territory "taken up" by Ontario.Chartrand agreed that Aboriginal knowledge was "filtered" through the Department of IndianAffairs.[1245] In my view, Chartrand's evidence that there was some knowledge by the late 1890s thatthe Ojibway knew the lands had come under provincial jurisdiction is unpersuasive. For instance,the fact that Ojibway were employed by companies that had received their patents or licensesfrom Ontario does not prove they were aware of that fact.