Keewatin v. Minister of Natural Resources

Part 5. The Ojibway Perspective - Ojibway History 48Ojibway to the West (Treaties 1 and 2)[266] In 1871, Simpson [not Simpson, Dawson and Pither] was given a separate commission totreat with "several tribes of Indians so occupying and claiming lands in our said Province ofManitoba, and in our said Northwestern Territory." By correspondence dated May 5, 1871 (Ex.4, p. 166), Howe instructed Simpson as follows:[A]s soon as you have completed your labours at Fort Frances as a Commissioner jointly with Mr.Dawson & Mr. Pither, (for with the Indians in that neighbourhood it will be necessary first to deal)you will without loss of time proceed to Fort Garry to confer with the Lieutenant Governor ofManitoba and enter upon your duties as sole Commissioner with the Indian Tribes to the West of theProvince.[267] The circumstances of the Red River Ojibway and Cree in 1871 were very different fromthose of the Treaty 3 Ojibway. The fertile Red River lands were the destination of many of thetravellers crossing the Dawson Route. The Red River Indians were facing not only great influxesof Euro-Canadian settlers but also the imminent extinction of their primary source of sustenance,the buffalo.2011 ONSC 4801 (CanLII)[268] While the Treaty 3 Ojibway had been relatively isolated, the Red River Ojibway andCree had had regular contact with Euro-Canadians dating back at least to the founding of theSelkirk settlement in 1817.[269] Chartrand gave evidence that by late 1871, the Treaty 3 Ojibway knew about Treaties 1and 2 made with Ojibway to the West in July 1871.[270] Chartrand opined that evidence regarding the 1873 negotiations including representationsmade to the Treaty 3 Ojibway in 1873 is more relevant to the understanding and intention of theTreaty 3 Ojibway than representations made by a different commissioner to other treatysignatories under different circumstances at a different time. However, there was evidence thatdespite the significant differences in their circumstances, the promises made by theCommissioners during the Treaty 1 and 2 negotiations were likely communicated to the Treaty 3Ojibway and for that reason may be somewhat relevant to their understanding in 1873.[271] Despite their marginal relevance, I mention them briefly here. In the 1871 negotiations atthe Red River, before introducing Treaty Commissioner Simpson, Lieutenant-GovernorArchibald said (Ex. 4, p. 178) to the Treaty 1 Ojibway and Cree:When you have made your treaty, you will still be free to hunt over much of the land included in thetreaty. Much of it is rocky and unfit for cultivation. Much of it that is wooded, beyond the placeswhere the white man will require to go, at all events for some time to come. Till these lands areneeded for use, you will be free to hunt over them and make all the use of them which you have madein the past. But when the lands are needed to be tilled or occupied, you must not go on them anymore.There will still be plenty of land that will be neither tilled nor occupied where you can go and roamand hunt as you have always done. And if you wish to farm, you will go to your own reserves whereyou will find a place ready for you to live on and cultivate.[272] Lovisek opined that if the translation were adequate, the Treaty 1 Ojibway and Creewould have understood that they would be able to indefinitely continue to hunt and fish as theyhad always done over much of the land they were ceding.