Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 243[1292] I have already given reasons for finding that the Ojibway understood they were dealingwith the Queen's Government of Canada, and were relying only on the Government of Canada toimplement and enforce the Treaty.[1293] While they understood they were giving up exclusive use of all the Treaty 3 lands, theydid not agree to unlimited uses by the Euro-Canadians in a manner that would significantlyinterfere with their Harvesting Rights. They agreed to share use on the express promise that theirHarvesting Rights would continue as in the past. I reject the submission of Ontario that theOjibway understood that unlimited development was "the tangible and anticipated manifestation"of the Treaty agreement.[1294] I have considered the submission of Ontario, citing Ireland at p. 589, that the rights ofCanada and the Ojibway must be balanced and thereby reconciled. In essence, a "taking up" byOntario limitation on Harvesting Rights should be implied. I have rejected the submission ofcounsel for Ontario that the "taking up" limitation operates as confirmation of a geographiclimitation that follows automatically from the cession of lands under the Treaty and thereconciliation of that central provision with the promise of ongoing Harvesting Rights.2011 ONSC 4801 (CanLII)[1295] In all the circumstances I have detailed, a "taking up" limitation by Ontario cannot beimplied with respect to this Treaty. It is not necessary to do so to reconcile Euro-Canadian landuses and Harvesting Rights. Here, everyone understood they would be compatible. In fact, to doso, given the specific promises I have found were made to the Ojibway and having regard to theother circumstances as I have found them, would be contrary to what the Ojibway couldreasonably expect and contrary to what the principle of the Honour of the Crown requires of ourgovernments.[1296] The Commissioners did not anticipate or require the Ojibway to agree to increasingreduction of their harvesting areas (away from the Dawson Route and CPR right of way), letalone such reduction without federal authorization.[1297] I have already referred to the Commissioners' extraordinary promises that I have foundwere made. After the end of the unpromising negotiations on October 2, the Shorthand Reporternoted in the Manitoban that it was "extremely doubtful whether an agreement could be come toor not."[1298] The Commissioners needed the Rainy River Chiefs to make the Treaty. The DawsonRoute was along the Rainy River. The Rainy River Chiefs were "careless" about entering into atreaty. While Morris might have been able to get the Chiefs from the north and east to signwithout such a promise, that result would not have achieved Canada's needed end.[1299] On October 3, 1873, in the presence of the Commissioners, when the Chief demanded inOjibwe words that McKay understood to mean they must be able to be make a living ("huntingand wild rice harvest")/to have their Harvesting Rights, McKay advised the Ojibway in theCommissioners' presence that they would be able to hunt and pursue their wild rice harvest as in