Keewatin v. Minister of Natural Resources

Part 18. Final Observations 302the West and Canada. Canada knew the Ojibway could walk away from the 1873 negotiationswithout reaching an agreement. Indeed, they had done so after the two previous attempts.[1635] The Ojibway made it clear to the Commissioners that they must be able to hunt and fish"as long as the sun shone and the waters flowed." Canada knew this was a pivotal considerationfor the Ojibway.[1636] On October 2, the negotiations did not go well. Overnight on October 2, or early onOctober 3, the tide changed.[1637] On the morning of October 3, the Chiefs returned to the negotiations. In theCommissioners' presence and with their knowledge, McKay assured them they would "be free asby the past for [their] hunting and wild rice harvest." I have found that this was the mutualintention of the parties. On October 3, Canada promised the Ojibway that after the Treaty wassigned they would be able to make a living harvesting resources throughout the Treaty 3 area asin the past.2011 ONSC 4801 (CanLII)[1638] I have found as a fact that the Ojibway were unaware that Ontario could affect theirHarvesting Rights. They were relying on Canada/the Queen's Government at Ottawa toimplement and enforce the promises. The relationship with the Queen's Government at Ottawawas important to the Ojibway.[1639] Canada enforced the Treaty Rights, as Morris promised, for several years while the CPRwas being constructed.[1640] In the eyes of Morris and Canada, it was pivotal that the Ojibway remain content whilethe railroad was being built and as settlers enroute to the West were crossing the Dawson Route.In order to fulfill Canada's s. 91(24) obligations, the Treaty Harvesting promises needed to bekept, even if Ontario were to win the Boundary Dispute. Familiar with ss. 91(24) and 109,Morris/ Canada ensured the promises could be kept by deliberately, and not mistakenly, referringto the Dominion in the Harvesting Clause. For all the reasons previously set out, I have noreservation in concluding Morris tailored the wording of the Treaty to ensure that theGovernment of Canada could stand between the local government and the Indians, wherenecessary, just as the Imperial Government had done earlier.[1641] Being of the view that the provisions of the treaties must be carried out with the "utmostgood faith," I have found that Morris would not have drafted Treaty terms that would depriveCanada of its power to ensure that that was done. In mentioning Canada, he was properlyexercising his jurisdiction under s. 91(24).[1642] Morris was familiar with the Canadian Constitution. He did what was constitutionallyopen to Canada – to protect Indian and indirectly national interests.