Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 239…I do not take issue with the principle that treaties and statutes relating to Indians should be liberallyconstrued and doubtful expressions resolved in favour of the Indians. In the case of treaties, thisprinciple finds its justification in the fact that the Crown enjoyed a superior bargaining position whennegotiating treaties with native peoples. From the perspective of the Indians, treaties were drawn upin a foreign language, and incorporated references to legal concepts of a system of law with whichIndians were unfamiliar. In the interpretation of these documents it is, therefore, only just that thecourts attempt to construe various provisions as the Indians may be taken to have understood them.[1266] Binnie J said in Marshall at paragraph 52:I do not think an interpretation of events that turns a positive …trade demand into a negative…covenant is consistent with the honour and integrity of the Crown… the trade arrangement must beinterpreted in a manner which gives meaning and substance to the promises made by the Crown[Emphasis added.][1267] The fundamental objective of modern day treaty interpretation is reconciliation ofAboriginal and non-Aboriginal peoples and their respective claims, interests and ambitions.2011 ONSC 4801 (CanLII)[1268] In Morris, Deschamps and Abella JJ. wrote for the majority at para. 361:The goal of Treaty interpretation is to choose from among the various possible interpretations ofcommon intention the one which best reconciles the interests of both parties at the time the Treatywas signed. This means that the promises in the Treaty must be placed in their historical, political,and cultural contexts to clarify the common intention of the parties and the interests they intended toreconcile at the time.Step 2: The Application of the Principles of Treaty Interpretation2 (a) The Wording of the Harvesting Clause2(a)(i) The Importance of the Written Word To the Ojibway and Canada[1269] Counsel for the Plaintiffs submitted that the Defendants are asking this Court to disregardthe express reference to the Dominion in the Harvesting Clause. In all the circumstances here, itwould be unjust to ignore words deliberately inserted by the Commissioners to protect theirrights, which plainly require that a certain process be followed before their Harvesting Rightscould be limited or extinguished. The wording of the Clause makes it clear that only theGovernment of the Dominion of Canada can "take up" or authorize "taking up" under the Treatyand thereby limit their Treaty Harvesting Rights.[1270] Even though they could not read or write, the Ojibway understood that having oralpromises committed to writing was important because it made the promises easier to enforce.[1271] I have accepted Lovisek's evidence that they placed great importance on the written word.The manner in which they signed the written Treaty indicated the significance they attached to it.After the Treaty was signed, the Chiefs asked for a copy of the Treaty written on parchment, so"it could not be rubbed off." Morris later reported to Ottawa that they had again asked for a copyof the Treaty.