Keewatin v. Minister of Natural Resources

Part 5. The Ojibway Perspective - Ojibway History 45possession of their hunting grounds in the interior: -- in fact, whatever may be given to them for thesurrender of their right, they must be gainers, for they relinquish nothing but a mere nominal title,they will continue to enjoy all their present advantages and will not be the poorer because thesuperior intelligence and industry of their white brethren are enabling them to draw wealth from afew limited portions of their territory, which never were nor could be, of any particular service tothemselves.[Emphasis added.][248] During the Robinson Treaty negotiations, when the Ojibway complained they were beingoffered less than Indians further south had received, Commissioner Robinson advised them thatthey could not expect to receive the amounts paid to those Indians, because unlike lands furthersouth, their lands were "barren and sterile," unsuitable for settlement and unlikely to bedeveloped. Robinson promised the Robinson Treaty Ojibway they would still be able to hunt andfish after the treaties were signed. Ex. 9 contains the following at p. 17:I explained to the Chiefs in Council the difference between the lands ceded heretofore in thisProvince, and those then under consideration. They were of good quality and sold readily at priceswhich enabled the Government to be more liberal. They were also occupied by the whites in such amanner as to preclude the possibility of the Indians hunting over or having access to them: Whereasthe lands now ceded are notoriously barren and sterile, and will in all probability never be settledexcept in a few localities by mining companies, whose establishments among the Indians, instead ofbeing prejudicial, would prove of great benefit as they would afford a market for any things they mayhave to sell, and bring provisions and stores of all kinds among them at reasonable prices.[249] The uncontradicted evidence was that the text of the two 1850 Robinson Treaties differedsignificantly from the standard form of treaties used earlier in Southern Ontario, which hadcontained no express provision ensuring the continuation of hunting rights. The RobinsonSuperior Treaty did. Ex. 9 contains the following at p. 303:And the said William Benjamin Robinson of the first part, on behalf of Her Majesty and theGovernment of this Province, hereby promises and agrees … to allow the said chiefs and their tribesthe full and free privilege to hunt over the territory now ceded by them, and to fish in the watersthereof as they have heretofore been in the habit of doing, saving and excepting only such portions ofthe said territory as may from time to time be sold or leased to individuals, or companies ofindividuals, and occupied by them with the consent of the provincial government.[250] Chartrand gave evidence (January 20, 2010) about the level of accommodationanticipated, saying at p. 65 that at the time of the Robinson Treaties:A. the scale and the nature of Euro-Canadian activity that was at the time expected to take place wasof a different character than the scale and nature of activity that had taken place in the more southerlypart of Upper Canada, Canada West at the time.[251] Counsel for the Plaintiffs submitted that based on that evidence, as of 1873, the Treaty 3Ojibway would have perceived that Robinson's representation in 1850, that the lands would in allprobability never be settled except by mining companies in a few localities, had been borne out.The little settlement that had occurred on the Robinson Treaty lands had mainly been restrictedto the vicinity of Sault Ste. Marie and Prince Arthur's Landing and to a few mining locations.There had been limited development. The Indians remained in undisturbed possession of theirhunting grounds in the interior, continuing to hunt and fish as before. At the same time they hadreceived treaty annuities. (Von Gernet, December 4, 2009; Epp, January 29, 2010.)2011 ONSC 4801 (CanLII)