Keewatin v. Minister of Natural Resources

Part 7. The 1873 Negotiations 67[343] Lovisek gave evidence that gleaning Ojibway understanding of the Harvesting promiseincludes consideration of differences between Euro-Canadian and Ojibway discourse. Unlike theOjibway, the Commissioners used a manner of communication similar to present day Euro-Canadian discourse, in which the absence of an expression of disagreement is sometimesassumed to suggest a lack of disagreement. In Ojibway discourse, silence or absence of openexpress disagreement is not a basis for assuming Ojibway assent. They were extremely politeand would not voice objections in the form of outright denial or rejection. Instead, they wouldtypically change the subject or even make a "contradictory statement of agreement." Forexample, on October 2, the Ojibway agreed with Morris' earlier statement that they owned thewater and wood in their territory in common with Canada but later said it is our wood and water.[344] She noted that although the Ojibway did not directly challenge Morris' statements thatwood and water were the common rights of all the subjects of Her Majesty, they did assert thatthe country was their country and the trees and the water were theirs. She gave evidence thatinstead of saying to Morris, "You are wrong about the wood and water," the Ojibway respondedin an almost classic Ojibway manner. They said:What was said about the trees and rivers was quite true, but it was the Indian's country, not the whiteman's.[345] Lovisek noted that during the negotiations, Morris never clearly told the Ojibway what hewanted from them. He did not use phrases such as "if you sell us your lands" or "if you give upyour lands" then "I will do certain things for you." Like Dawson, he said he wanted to settle "allmatters of the past and the present, so that the white and red man will always be friends." Sheopined that the Ojibway would not have understood from what he said that he was seeking asurrender of the right to harvest renewable natural resources on those lands.2011 ONSC 4801 (CanLII)[346] Von Gernet gave evidence that an explanation was not necessary, since the Ojibwayalready understood what he wanted.[347] Lovisek's report (Ex. 28) contains the following at pp. 86-87In his opening offer Lieutenant-Governor Morris offered the Saulteaux a bundle of items includingfriendship, reserves, schools, money, presents of goods and provisions. One offer in the bundle ofterms includes reference to hunting and fishing:I want to settle all matters both of the past and the present, so that the white and red man willalways be friends. I will give you lands for farms, and also reserves for your own use. I haveauthority to make reserves such as I have described, not exceeding in all a square mile forevery family of five or thereabouts. It may be a long time before the other land are wanted,and in the meantime you will be permitted to fish and hunt over them. I will also establishschools whenever any band asks for them, so that your children may have the learning of thewhite man. I will also give you a sum of money for yourselves and every one of your wivesand children for this year. I will give you ten dollars per head of the population, and forevery other year five dollars a-head. But to the chief men, not exceeding two to each band,we will give twenty dollars a year for ever. I will give to each of you this year a present ofgoods and provisions to take you home, and I am sure you will be satisfied. [Emphasis inreport.]Morris' statement : "It may be a long time before the other land are wanted, and in the meantime youwill be permitted to fish and hunt over them" will be the only statement Morris makes during the