Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 274area to settlement and development. The Ojibway did not agree to a progressivelimitation of the geographical area where they could hunt.e) In Mikisew there was no factual finding that the Treaty 8 Aboriginal signatorieshad been induced to enter into the treaty by specific promises about the perpetualcontinuation of their subsistence Harvesting Rights as in the past over the wholeterritory. There was no finding that the Cree did not understand that Canada couldunilaterally interfere with their rights.f) On the facts as found in Mikisew, the Aboriginal signatories in effect agreedduring the negotiations to what Plaintiffs' counsel in this case referred to as"extinguishment of their Harvesting Rights by slices." They were found to haveunderstood and accepted that after they signed the treaty, they would beunilaterally deprived of their hunting rights as lands were developed. On the factsas found, Treaty 8 was held to have imposed a geographical limitation on theharvesting area, "consistent with the oral promises made at the time the treaty wassigned, the oral history of the Treaty 8 Indians, earlier case law and the provisionsof the Alberta Wildlife Act." Put differently, in Mikisew the Aboriginal signatoriesto Treaty 8 understood and accepted that after they signed it, there could besignificant interferences with their harvesting rights and that their traditionalharvesting rights would be increasingly displaced as "taking up" increased. Therewas a very different factual finding here.g) Even in the absence of a protective process clause and in the face of anunderstanding and agreement that their traditional harvesting rights could beincreasingly limited as development progressed, the Supreme Court of Canadaheld in Mikisew that it was necessary to ensure that the substantive promise thatwas made in Treaty 8 would be kept (i.e., that the Cree would have a continuingright to hunt on the lands ceded: so much land would not be taken up that therewould be no meaningful right to hunt on the remaining land.) Given the findingsmade with respect to the mutual understanding of the parties and the absence of aprocess clause that must be followed, the Court held that so long as they still hada meaningful right to pursue their traditional harvesting, there would be nosubstantive breach of the treaty. Even in those very different circumstances, theCourt held there was a duty to consult, possibly to accommodate and certainly toavoid breaching the substantive treaty term by ensuring that the Aboriginalsignatories had a meaningful right to hunt within their traditional territories. In thecase of Treaty 3, I have held the parties did not intend that Ojibway HarvestingRights would receive substantive protection only when they were on the verge ofbecoming meaningless.h) In the particular circumstances of Treaty 3, I have found that to get the Treatydone, the Commissioners did make promises to the Treaty 3 Ojibway that wentbeyond those found by the Court to have been made to the Cree signatories inMikisew. The Commissioners did not require the Ojibway to agree, as a term ofthe Treaty, that their harvesting areas would decrease over time.i) While the Mikisew Cree agreed to geographical displacement of hunting rights,the Treaty 3 Ojibway did not.2011 ONSC 4801 (CanLII)