Keewatin v. Minister of Natural Resources

More documents

Recommendations

Info

Part 4. Euro-Canadian History 1758-1871 37[210] A December 29, 1871 Ontario Order in Council (Ex. 1, Vol. 5, tab 159) included thefollowing:The Committee of Council have had under consideration the communication of the Secretary of Statedated 30th November 1871 on the subject of the granting of Mining Licenses and Patents for lands inthe neighborhood of Lake Shebandowan and in places about the Head of Lake Superior – and whichwith the copy of a report of the Committee of the Privy Council of Canada has been referred forReport to the Honorable Commissioner of Crown Lands.The Committee advise that pending such reference no patents or mining licenses issue from LakeShebandowan westward -[211] Lovisek's report, Ex. 28, contains the following at pp. 62-63:1872The Ontario Order in Council referred to two documents: a communication of the Secretary of Statedated November 30, 1871; and a report of the committee of the Privy Council of Canada… Howeinformed Howland that he was transmitting a copy of letter from the Governor General in Council onthe subject of granting mining licenses and patents for lands in the neighbourhood of ShebandowanLake and in locations about the head of Lake Superior. Howe requested that Howland "communicatetheir views thereon for the information of His Excellency in Council."2011 ONSC 4801 (CanLII)[212] Chartrand's report Ex. 60, contains the followingAt pp. 312-313Despite pressure from increasing immigrant travels along the Dawson Route and applications forlicenses and patents to land by development interests, the Dominion and Ontario Commissionersremained deadlocked by the beginning of 1872. On March 26th, Ontario notified the Dominion thatnegotiations had reached an impasse and could not proceed as the different viewpoints on the westernboundary location were too extremely divided. On April 19th, the Province passed an Order-in-Council communicating to the Dominion Government its formal claim for a western boundarylocation, beginning at a point west of Lake of the Woods where the international boundary with theUnited States was intersected by a line drawn north from the source of the Mississippi river.At pp. 313-315:7.1.3 Response to Further Dominion Government Proposals and Shift Towards Arbitration(1872 - 1874)The Dominion responded to the failed negotiation by suggesting that both governments take theirarguments to a Judicial Committee of the Privy Council hearing (hereafter 'JCPC'). Therecommendation was officially drafted in a memorandum of the Department of Justice dated May 1,1872, signed by Prime Minister John A. Macdonald.…The basic course of action suggested by Macdonald was to negotiate a temporary joint system for theadministration of lands in the disputed territory pending a final legal decision of the JCPC on thequestion of the location of Ontario's northern and western boundaries.…Party politics also became a factor in the dispute by that time. In 1872 Ontario voters had elected anew liberal government headed by Oliver Mowat, which soon embarked on a political platform tostrengthen provincial rights and provincial governmental powers in the still relatively newconstitutional framework of the Dominion. John A. Macdonald, a conservative, was staunchlyopposed to this platform and would struggle to develop and maintain centralized power at the Federallevel, at the expense of provinces. As Macdonald biographers J.K. Johnson and P.B. Waits note, atConfederation in Macdonald's view:
Part 4. Euro-Canadian History 1758-1871 38It was not just that a provincial government was to be "a subordinate legislature". Theprovincial governments, he maintained, had been made fatally weak and were ultimately tocease to exist. He envisaged a Canada with one government and , as nearly as possible, onehomogeneous population sharing common institutions and characteristics.[References omitted.][213] Saywell opined that by 1872, it was well known by the political actors of the day thatthere was an active dispute between Ontario and Canada over where the boundaries werelocated. Saywell said that in 1873 it was likely that all three Commissioners were aware of theBoundary Dispute. (Saywell, April 7 and 9, 2009)5. THE OJIBWAY PERSPECTIVE - OJIBWAY HISTORY[214] As mentioned earlier, most of the extant documentation available to this Court is writtenin English by Euro-Canadians and obviously reflects the Euro-Canadian perspective.2011 ONSC 4801 (CanLII)[215] In considering mutual intention in 1873, it would not be acceptable, without more, touncritically adopt Euro-Canadian interpretations of Ojibway perception contained in thecontemporaneous documentation. Since the Ojibway could not speak or write English, and sincethe memory record of the negotiations taken by an Ojibway recorder has not survived, experthistorical, ethno-historical and anthropological evidence was called to assist this Court ingleaning the Aboriginal understandings, intentions, interests and objectives: in short, theOjibway perspective at the time Treaty 3 was entered into.[216] Dr. Joan Lovisek ("Lovisek") was called to give expert evidence by counsel for thePlaintiffs. She was qualified as an anthropologist with expertise about the Aboriginal peoples ofCanada, especially the Ojibway of the Boundary Waters Region, and with respect to theapplication of the ethno-historical method. She provided an ethnographic overview of the way oflife of the Treaty 3 Ojibway, an ethno-historical analysis of the negotiations and of the Ojibwayunderstanding of Treaty 3 in 1873. She also gave interpretive evidence on developments after theTreaty was signed, alleged by the Defendants to be relevant to that understanding.[217] Dr. Alexander von Gernet ("Von Gernet") was called to give expert evidence by counselfor Ontario. His speciality is ethno-history and archaeology of Aboriginal peoples in NorthAmerica. Von Gernet was qualified as "an anthropologist and ethno-historian specializing in theuse and analysis of archaeological evidence, written documentation and oral traditions toreconstruct the past cultures of Aboriginal peoples as well as the history of contact betweenAboriginal peoples and European newcomers throughout Canada and parts of the United States."He gave evidence about the ethno-historical context of the 1873 Treaty negotiations, focusedgenerally on the Aboriginal understanding of the raison d'être of treaty making. He also offeredan historical opinion on the background and purpose of s. 91(24) in reply to Milloy's evidence.[218] Mr. J.P. Chartrand ("Chartrand") was called to give expert evidence by counsel forOntario. He was qualified as an expert anthropologist and ethno-historian with particularexperience regarding the Algonquian peoples of Ontario, including the Ojibway. He provided an
Page 1 and 2: Table of ContentsiCITATION: Keewati
Page 3 and 4: Table of ContentsiiiReligion.......
Page 5 and 6: Table of ContentsvSummary of Findin
Page 7 and 8: Table of ContentsviiAppendix C: Tab
Page 9 and 10: Part 1. Introduction 2government. I
Page 11 and 12: Part 1. Introduction 4[24] Counsel
Page 13 and 14: Part 2. The Organization of these R
Page 15 and 16: Part 3. Overview 8[50] By 1872, the
Page 17 and 18: Part 3. Overview 10"Yes" answer wou
Page 19 and 20: Part 4. Euro-Canadian History 1758-
Page 43: Part 4. Euro-Canadian History 1758-
Page 47 and 48: Part 5. The Ojibway Perspective - O
Page 61 and 62: Part 6. Lead-Up to the 1873 Negotia
Page 63 and 64: Part 6. Lead-Up to the 1873 Negotia
Page 65 and 66: Part 7. The 1873 Negotiations 584.
Page 67 and 68: Part 7. The 1873 Negotiations 60Nor
Page 69 and 70: Part 7. The 1873 Negotiations 62187
Page 71 and 72: Part 7. The 1873 Negotiations 64pre
Page 73 and 74: Part 7. The 1873 Negotiations 66had
Page 75 and 76: Part 7. The 1873 Negotiations 68thr
Page 77 and 78: Part 7. The 1873 Negotiations 70Dom
Page 79 and 80: Part 7. The 1873 Negotiations 72"Ma
Page 81 and 82: Part 7. The 1873 Negotiations 748th
Page 83 and 84: Part 7. The 1873 Negotiations 76Gov
Page 85 and 86: Part 7. The 1873 Negotiations 78nam
Page 87 and 88: Part 7. The 1873 Negotiations 80act
Page 89 and 90: Part 7. The 1873 Negotiations 82Ban
Page 91 and 92: Part 7. The 1873 Negotiations 84Fif
Page 93 and 94: Part 7. The 1873 Negotiations 86Ind
Page 95 and 96:
Part 7. The 1873 Negotiations 88[38
Page 97 and 98:
Part 8. Analysis of Historical Evid
Page 99 and 100:
Page 101 and 102:
Page 103 and 104:
Page 105 and 106:
Page 107 and 108:
Page 109 and 110:
Page 111 and 112:
Page 113 and 114:
Page 115 and 116:
Page 117 and 118:
Page 119 and 120:
Page 121 and 122:
Page 123 and 124:
Page 125 and 126:
Page 127 and 128:
Page 129 and 130:
Page 131 and 132:
Page 133 and 134:
Page 135 and 136:
Page 137 and 138:
Page 139 and 140:
Part 9. Credibility of the Experts
Page 141 and 142:
Page 143 and 144:
Page 145 and 146:
Page 147 and 148:
Page 149 and 150:
Page 151 and 152:
Page 153 and 154:
Page 155 and 156:
Part 10. Findings of Fact Part I 14
Page 157 and 158:
Page 159 and 160:
Page 161 and 162:
Page 163 and 164:
Page 165 and 166:
Page 167 and 168:
Page 169 and 170:
Page 171 and 172:
Page 173 and 174:
Page 175 and 176:
Page 177 and 178:
Page 179 and 180:
Page 181 and 182:
Page 183 and 184:
Page 185 and 186:
Page 187 and 188:
Part 11. Post-Treaty Events 180Rain
Page 189 and 190:
Part 11. Post-Treaty Events 182Daws
Page 191 and 192:
Part 11. Post-Treaty Events 184[951
Page 193 and 194:
Part 11. Post-Treaty Events 186Sept
Page 195 and 196:
Page 197 and 198:
Page 199 and 200:
Part 11. Post-Treaty Events 192A. Y
Page 201 and 202:
Page 203 and 204:
Part 11. Post-Treaty Events 196kept
Page 205 and 206:
Page 207 and 208:
Page 209 and 210:
Part 11. Post-Treaty Events 202The
Page 211 and 212:
Part 11. Post-Treaty Events 204to l
Page 213 and 214:
Part 11. Post-Treaty Events 206A. I
Page 215 and 216:
Part 11. Post-Treaty Events 208that
Page 217 and 218:
Page 219 and 220:
Page 221 and 222:
Part 11. Post-Treaty Events 214At t
Page 223 and 224:
Part 11. Post-Treaty Events 216Evid
Page 225 and 226:
Part 11. Post-Treaty Events 218Dunc
Page 227 and 228:
Part 11. Post-Treaty Events 220It s
Page 229 and 230:
Page 231 and 232:
Page 233 and 234:
Page 235 and 236:
Part 12. Findings of Fact Part II 2
Page 237 and 238:
Page 239 and 240:
Page 241 and 242:
Page 243 and 244:
Page 245 and 246:
Part 13. Answer to Question One 238
Page 247 and 248:
Page 249 and 250:
Page 251 and 252:
Page 253 and 254:
Page 255 and 256:
Page 257 and 258:
Page 259 and 260:
Page 261 and 262:
Page 263 and 264:
Page 265 and 266:
Page 267 and 268:
Page 269 and 270:
Page 271 and 272:
Page 273 and 274:
Page 275 and 276:
Page 277 and 278:
Page 279 and 280:
Page 281 and 282:
Page 283 and 284:
Page 285 and 286:
Part 14. The Answer to Question Two
Page 287 and 288:
Page 289 and 290:
Page 291 and 292:
Page 293 and 294:
Page 295 and 296:
Page 297 and 298:
Page 299 and 300:
Part 15. The Effect of the Answers
Page 301 and 302:
Part 15. The Effect of the Answers
Page 303 and 304:
Part 16. The Honour of the Crown 29
Page 305 and 306:
Page 307 and 308:
Page 309 and 310:
Part 18. Final Observations 302the
Page 311 and 312:
Appendices 304APPENDICESAppendix A.
Page 313 and 314:
Appendices 306issues will have to b
Page 315 and 316:
Appendices 308Appendix B:Agreement
Page 317 and 318:
Appendices 310S.C.R. 349Morris R. v
Page 319:
312CITATION: Keewatin v. Minister o
show all

Keewatin v. Minister of Natural Resources

Create successful ePaper yourself

Delete template?

Save as template?