Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 273obligations, fiduciary or otherwise, to the Ojibway under the Treaty in connection with theHarvesting promise, will be determined having regard to the exact nature of the relationshipcreated with the Ojibway in 1873 and may be affected in part by Canada's specific promiseshere, the nature and extent of Canada's discretion and the Ojibway vulnerability with respect tothis Harvesting promise.[1470] Suffice it to say that for the purpose of considering Ontario's argument, based as it was onthe conclusion in Mikisew that Canada did not owe a fiduciary duty to the Cree in Treaty 8, Icannot conclude with certainty that Canada could not be found to owe a fiduciary duty to theTreaty 3 Ojibway in respect of the Harvesting Clause in all the circumstances here.[1471] Given the specific promises found to have been made and the deliberate inclusion of aspecifically worded process clause mentioning Canada, the legal characterization of the duty thata Court might find Canada to owe to them could be different from the duty it was found to oweunder Treaty 8.2011 ONSC 4801 (CanLII)[1472] I shall outline some of the differences between the Treaty 8/Mikisew and the Treaty 3facts as I have found them in order to highlight why the conclusions in Mikisew may notnecessarily be held to apply here.a) The clause under consideration in Mikisew was worded differently from theHarvesting Clause here. Treaty 8 contains no protective process clause.b) In Mikisew, there was no need for the Court to consider whether the lands hadbeen validly "taken up" (i.e., whether the specific process for "taking up"prescribed in the treaty had been followed, i.e., by a party other than Canada thatneeded to be authorized by Canada.)c) The two treaties were negotiated under very different circumstances. Treaty 8 wasnot negotiated by Morris. The Treaty 8 Cree had very different perspectives andinterests from the Treaty 3 Ojibway.d) Binnie J. generalized in Mikisew at paragraph 24 that the post-Confederationnumbered treaties were designed to open up the Canadian West to settlement anddevelopment. He noted that that stated purpose was reflected in the limitations onhunting, fishing and trapping rights contained in Treaty 8. He noted at paragraph53 that the evidence led at the Mikisew trial supported a finding that in the yearTreaty 8 was negotiated, 1899, the Cree understood that after the treaty wassigned, when land was put to a use that was visibly incompatible with the exerciseof their right to hunt, they would no longer be able to hunt on that land. In otherwords, there was a factual finding that the Aboriginal signatories of Treaty 8understood, intended and accepted that the geographical limits of their huntingareas would shrink as lands were "taken up"/transferred from the inventory oflands over which they had treaty rights to hunt, fish and trap, to the inventory oflands where they did not have those rights. I have found that in Treaty 3, theOjibway and the Commissioners had a much different intent and understanding.Canada's primary interest in negotiating Treaty 3 was not opening the Treaty 3