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CITATION: Keewatin v. Minister of Natural Resources 2011 ONSC 4801  
Court File No. 05-CV-281875PD  
Date: 20110816  
ONTARIO  
SUPERIOR COURT OF JUSTICE  
)
)
B E T W E E N:  
ANDREW KEEWATIN JR. and JOSEPH  
WILLIAM FOBISTER on their own behalf  
and on behalf of all other members of  
GRASSY NARROWS FIRST NATION  
) Robert J.M. Janes, Karey Brooks, Barbara  
) Harvey for the Plaintiffs  
)
)
Plaintiffs )  
)
- and -  
)
MINISTER OF NATURAL RESOURCES  
and ABITIBI-CONSOLIDATED INC.  
) Michael R. Stephenson, Peter Lemmond,  
) Christine Perruzza, Mark Crow for the  
Defendants ) Defendant Minister of Natural Resources  
)
) Christopher J. Matthews, Marina Sampson  
) for the Defendant Abitibi-Consolidated Inc.  
)
)
- and -  
THE ATTORNEY GENERAL OF CANADA ) Gary Penner, Michael McCulloch, Barry  
Third Party ) Ennis for the Third Party  
)
) HEARD: September 14-16; October 5-6, 9,  
) 13-16, 19-23; November 16-18, 23-27;  
) December 1-4, 7, 9-10, 14-16, 2009;  
) January 14, 15, 18-22, 25-29; February 16-  
) 19, 22-26; March 1; April 19-22, 26-30;  
) May 1, 3, 2010  
M.A. SANDERSON J.  
REASONS FOR JUDGMENT  
Table of Contents  
1. INTRODUCTION ...................................................................................................................... 1  
Ontario's Position.................................................................................................................... 1  
The Ojibway Position ............................................................................................................. 2  
Table of Contents  
ii  
The Issues to be Decided ........................................................................................................ 3  
Question One ...................................................................................................................... 3  
Question Two...................................................................................................................... 4  
Evidentiary Matters................................................................................................................. 4  
2. THE ORGANIZATION OF THESE REASONS....................................................................... 5  
3. OVERVIEW ............................................................................................................................... 7  
Question One .......................................................................................................................... 9  
Question Two........................................................................................................................ 10  
4. EURO-CANADIAN HISTORY 1758-1871 ............................................................................ 11  
The Historical/Political Evidence ............................................................................................. 11  
Factors Leading to Federal Control Over Indian Affairs.......................................................... 11  
1756 - Confederation ............................................................................................................ 11  
British Military Policies.................................................................................................... 11  
The Royal Proclamation of 1763...................................................................................... 12  
Circumstances Leading to Confederation and the Post-Confederation Treaties ...................... 15  
British Economic Policies..................................................................................................... 15  
Euro-Canadian Contact with the Treaty 3 Ojibway from the Euro-Canadian Perspective ...... 16  
The HBC Territories ............................................................................................................. 16  
The Hind & Palliser Expeditions.......................................................................................... 17  
1860: Transfer of Imperial Administration of Indian Affairs to the United Canadas .......... 18  
1861-1867 ............................................................................................................................. 18  
The Lead Up To Confederation................................................................................................ 19  
Negotiations re Annexation of the West............................................................................... 19  
Discussions re Jurisdiction over Indians/Indian Lands......................................................... 19  
The Provenance of S. 91(24) ................................................................................................ 20  
1. Availability of the HBC Territories .............................................................................. 20  
2. The Existence of Indian Policy Tradition ..................................................................... 21  
The Federal/Provincial Relationship..................................................................................... 22  
Confederation - 1867 ............................................................................................................ 23  
Other Events After Confederation Relevant to the Parties' Understanding of Canada's Powers  
and Obligations to Indians in 1873........................................................................................... 23  
Establishment of a Canadian Department of Indian Affairs................................................. 23  
Other Developments ............................................................................................................. 24  
1868....................................................................................................................................... 25  
1869....................................................................................................................................... 27  
The 1869 Demand Document........................................................................................... 28  
Progress on the Construction of the Dawson Route ......................................................... 29  
Insurrection at the Red River ............................................................................................ 29  
1870....................................................................................................................................... 30  
1871....................................................................................................................................... 34  
1872....................................................................................................................................... 37  
5. THE OJIBWAY PERSPECTIVE - OJIBWAY HISTORY ..................................................... 38  
The Life and Culture of the Ojibway/European Contact to 1871............................................. 39  
Social Structure................................................................................................................. 39  
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Governance ....................................................................................................................... 39  
Religion............................................................................................................................. 39  
The Seasonal Round ......................................................................................................... 40  
Communication and Language ......................................................................................... 41  
European Contact.................................................................................................................. 42  
The Contact with Palliser and Hind Expeditions.................................................................. 42  
Palliser Expedition............................................................................................................ 42  
Hind Expedition................................................................................................................ 42  
Relations and Contacts with Other Ojibway......................................................................... 43  
American Ojibway............................................................................................................ 43  
Ojibway to the East........................................................................................................... 44  
Post-Confederation Contact with Euro-Canadians in the Treaty 3 Area.............................. 46  
Territorial Concepts .............................................................................................................. 46  
1871 Treaty Negotiations.......................................................................................................... 46  
Ojibway to the West (Treaties 1 and 2) ............................................................................ 48  
1872 Negotiations..................................................................................................................... 49  
6. LEAD-UP TO THE 1873 NEGOTIATIONS........................................................................... 52  
7. THE 1873 NEGOTIATIONS ................................................................................................... 57  
The Documents......................................................................................................................... 57  
1. The Shorthand Reporter's Account/The Manitoban Newspaper Account........................ 57  
2. The Nolin Notes................................................................................................................ 57  
3. The Dawson Notes............................................................................................................ 57  
4. Indian Reporter. ................................................................................................................ 58  
5. The Treaty/Morris Document ........................................................................................... 58  
6. Morris' Official Report...................................................................................................... 58  
7. The Manitoba Free Press Account, October 18, 1873...................................................... 58  
8. Exhibit 31 Handwritten Proposed Articles of Treaty ....................................................... 58  
10. Draft Treaty [Exhibit 32] ................................................................................................ 59  
Arrival of the Treaty Parties at the NorthWest Angle – late September 1873 ......................... 59  
Commencement of Proceedings on September 30, 1873 ......................................................... 61  
October 1, 1873..................................................................................................................... 61  
October 2, 1873..................................................................................................................... 68  
October 3, 1873..................................................................................................................... 75  
8. ANALYSIS OF THE HISTORICAL EVIDENCE AS IT RELATES TO THE INTERESTS  
OF THE PARTIES ....................................................................................................................... 88  
The Interests of Canada ............................................................................................................ 88  
What Morris Knew ............................................................................................................... 88  
The Relationship of the Federal and Provincial Governments ............................................. 90  
Morris' View of Canada's s. 91(24) Powers and Duties ....................................................... 91  
Morris' Understanding of Section 109.................................................................................. 93  
Morris' Understanding About Involvement of Dual Governments in Land Use Matters..... 95  
Morris' Awareness of the Boundary Dispute........................................................................ 96  
What Dawson Knew ............................................................................................................. 96  
What Provencher Knew ........................................................................................................ 98  
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Canada's Interests.................................................................................................................. 98  
The Interests of the Ojibway/What the Ojibway Knew.......................................................... 101  
1. Whether They Needed a Treaty...................................................................................... 101  
2. Whether They Understood They Would Be Required to Change Their Way of Life .... 104  
The Ojibway Understanding of What They Were Being Asked to Give Up...................... 105  
The Meaning of the Harvesting Clause .................................................................................. 108  
What did the Ojibway and the Commissioners Understand on October 3 about whether  
Morris' October 1 Proposal was Accepted? Had it been Superseded by a Different Promise  
by the time the Treaty was Signed on October 3? .............................................................. 108  
The Promise of Ammunition and Twine ............................................................................ 110  
The Nolin Note ................................................................................................................... 110  
Dawson's Post-Treaty Recollections of the Treaty Negotiations relevant to the Intent and  
Meaning of the Harvesting Clause...................................................................................... 114  
Why Did Morris Refer to the Dominion Government in the Harvesting Clause?.............. 117  
The Meaning of "Taking Up" ............................................................................................. 120  
Evidence Relevant to the Interpretation of the Understanding of the Parties in 1873 with  
regard to the Identity of the Treaty Parties ............................................................................. 121  
The Interests of Ontario .......................................................................................................... 131  
9. CREDIBILITY OF THE EXPERTS ...................................................................................... 131  
The Ethno-Historical Witnesses (Lovisek, Chartrand and Von Gernet) ................................ 131  
Lovisek................................................................................................................................ 131  
Chartrand............................................................................................................................. 134  
Von Gernet.......................................................................................................................... 141  
The Historical & Political Witnesses...................................................................................... 145  
Milloy.................................................................................................................................. 145  
Saywell................................................................................................................................ 146  
Vipond................................................................................................................................. 146  
10. FINDINGS OF FACT, PART 1 ........................................................................................... 147  
Findings re Interests of Canada .............................................................................................. 147  
Findings re Interests of Ojibway............................................................................................. 153  
Re The 1869 Demands........................................................................................................ 155  
Findings re The Harvesting Clause......................................................................................... 156  
The Ojibway Understanding of the Harvesting Clause at the Time the Treaty was Signed  
............................................................................................................................................. 156  
Finding re Understanding of Canada re Likely Compatibility of Traditional Harvesting and  
Anticipated Euro-Canadian Land Uses............................................................................... 160  
Finding re Were the Harvesting Promises Broadened on October 3, 1873/Did the Ojibway  
Accept Morris' October 1, 1873 Proposal? Had the Commissioners Amended it by October  
3, 1873?............................................................................................................................... 160  
Why Did Morris Mention the Dominion in the Harvesting Clause?.................................. 165  
Did the Ojibway Understand and Accept that Canada Could Interfere with Their Treaty  
Harvesting Rights?.............................................................................................................. 167  
Findings Re The Parties' Understanding with respect to the Identity of the Treaty Parties ... 170  
The Ojibway's Understanding on the Identity of the Treaty Parties................................... 170  
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Canada's Understanding on Identity of the Treaty Parties.................................................. 176  
Summary of Findings of Fact Part 1....................................................................................... 177  
11. POST-TREATY EVENTS ................................................................................................... 178  
Attempting Reserve Allocation Amidst Political Upheaval ................................................... 179  
The Liberals are Elected ..................................................................................................... 179  
Events, 1878 - 1887 ................................................................................................................ 186  
The Boundary Dispute ........................................................................................................ 186  
The Conservatives are Elected............................................................................................ 187  
The St. Catherine's Milling Case ........................................................................................ 193  
Negative Fallout Affecting the Treaty 3 Ojibway after the Release of the St. Catherine's  
Milling Decision/ Negative Repercussions of the Boundary Dispute on Treaty 3 Ojibway  
............................................................................................................................................. 193  
The 1894 Agreement: Ratification of the 1891 Legislation ................................................... 200  
The Annuities Case (heard 1903-1910) .............................................................................. 202  
Relations Between Ojibway and Euro-Canadians 1909-1912............................................ 202  
The Background to the Annexation of Keewatin to Ontario in 1912..................................... 203  
Confirmation of Reserves and Other Developments- 1915.................................................... 209  
The Evidence of Williams and Epp re Land Use in Ontario 1873-1930................................ 214  
Evidence re Development in Keewatin............................................................................... 216  
Evidence re Development in the Disputed Territory .......................................................... 216  
1920s-1950s: Developments in the Disputed Territory and the Keewatin Lands .................. 217  
The Present Day...................................................................................................................... 223  
The Evidence of William Fobister...................................................................................... 223  
Royal Commission on Aboriginal Peoples......................................................................... 226  
12. FINDINGS OF FACT, PART II........................................................................................... 227  
Findings re Identity of The Treaty Parties.............................................................................. 227  
Re Canada's and the Ojibway's Understanding of the Identity of Their Treaty Partner and  
their Duties to Each Other................................................................................................... 227  
Re Ontario's Understanding of the Identity of the Treaty Parties in the Late 19th and Early  
20th Centuries as Evidenced by its Post-Treaty Conduct.................................................... 230  
Findings re the Meaning of the Harvesting Clause................................................................. 231  
Re Post-Treaty Conduct Shedding Light on Mutual Understanding of the Meaning of the  
Harvesting Clause............................................................................................................... 231  
Re Compatibility of Ojibway/Euro-Canadian Land Usage After 1873.............................. 233  
Re Ontario's Evidence of Euro-Canadian Development in Ontario 1873-1930................. 234  
13. ANSWER TO QUESTION ONE ......................................................................................... 236  
Step 1: The Law: Principles of Treaty Interpretation ............................................................. 237  
Step 2: The Application of the Principles of Treaty Interpretation ........................................ 239  
2 (a) The Wording of the Harvesting Clause...................................................................... 239  
2(a)(i) The Importance of the Written Word To the Ojibway and Canada .................... 239  
2(a)(ii) The Literal Meaning of the Words ..................................................................... 241  
Conclusion Re 2(a)(i) and 2(a)(ii)................................................................................... 242  
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2(b) What were the Mutual Intentions of the Parties as to the Meaning of the Harvesting  
Clause as of 1873 that best reconcile the interests of the parties at the time the Treaty was  
signed? ................................................................................................................................ 242  
Step 3: Was the Harvesting Clause as written Constitutional?............................................... 246  
Does Canada have a Constitutional Role under s. 91(24) in protecting Harvesting Rights in  
Ontario?............................................................................................................................... 247  
(1) Conclusion re Section 91(24) Jurisdiction/Powers ....................................................... 250  
(2) Conclusions re Section 109........................................................................................... 253  
Conclusion re Constitutionality of the Harvesting Clause as Written ................................ 257  
Step 4: In light of Steps 1, 2 and 3 above, What is the Answer to Question One as of 1873?258  
Step 5: The Effect of the 1891/1894 Legislation/Agreement................................................. 259  
5(a) Did the 1891/1894 Legislation/Agreement ("the 1894 Agreement") Declare Ontario's  
Existing Rights Or Give Ontario Additional Rights? ......................................................... 259  
Conclusions Re The Effect Of The 1891 Legislation......................................................... 261  
5(b) Did the 1891/1894 Legislation/Agreement Apply to Keewatin After 1912? ............. 262  
Conclusions re Applicability of the 1891 Legislation to Keewatin after 1912................... 264  
Step 6: The Devolution Argument.......................................................................................... 267  
Conclusions on the Devolution Argument.......................................................................... 268  
Step 7: The Answer to Question One ..................................................................................... 270  
The Mikisew Factor................................................................................................................. 271  
14. ANSWER TO QUESTION TWO ........................................................................................ 276  
Analysis .................................................................................................................................. 277  
Issues Raised in Argument ..................................................................................................... 277  
1. Is a Division of Powers analysis appropriate here? ........................................................ 277  
(2) Are Traditional Harvesting Rights Under the Treaty at the Core of the Federal s. 91(24)  
Power?................................................................................................................................. 282  
(3) Does Inter-jurisdictional Immunity apply to Indirect Interferences?............................ 283  
Conclusions............................................................................................................................. 285  
1. Is Division of Powers Analysis Appropriate Here? Is Ontario Unconstrained by the  
Division of Powers? Are Treaty Rights Protected only by s. 35 and the Honour of the  
Crown?................................................................................................................................ 285  
2. If Ontario is Constrained by the Division of Powers, Does Inter-Jurisdictional Immunity  
Apply?................................................................................................................................. 288  
3. Does Inter-Jurisdictional Immunity Apply? ................................................................... 290  
4. Does s. 88 of the Indian Act Apply?............................................................................... 290  
5. The Answer to Question Two......................................................................................... 291  
15. THE EFFECT OF THE ANSWERS TO QUESTIONS ONE AND TWO.......................... 292  
16. THE HONOUR OF THE CROWN...................................................................................... 295  
17. THE NEXT STAGE OF THIS LITIGATION ..................................................................... 301  
18. FINAL OBSERVATIONS ................................................................................................... 301  
General Concern About Framing of the Issues....................................................................... 301  
Findings of Fact and Law re 1873-1912/Answers to Questions One and Two...................... 301  
Implications of This Decision................................................................................................. 303  
19. DISPOSITION...................................................................................................................... 303  
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APPENDICES ............................................................................................................................ 304  
Appendix A. Summary Describing Procedural Background and History of this Litigation .. 304  
Appendix B: Agreement regarding Historical Documents..................................................... 308  
Appendix C: Table of Cases ................................................................................................... 309  
Part 1. Introduction  
1
1. INTRODUCTION  
  
At issue here is the interpretation of a Harvesting Clause (the "Harvesting Clause") in a  
treaty (the "Treaty" or "Treaty 3") made in 1873 between Canada and the ancestors of the  
Plaintiffs including the following:  
…they, the said Indians, shall have the right to pursue their avocations of hunting and fishing  
throughout the said tract surrendered as hereinbefore described … and saving and excepting such  
tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other  
purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereof, duly  
authorized therefor by the said Government.  
  
On June 28, 2006, Spies J. ordered a trial of the following two issues:  
Question One:  
Does Her Majesty the Queen in Right of Ontario have the authority within that part of the lands  
subject to Treaty 3 that were added to Ontario in 1912, to exercise the right to "take up" tracts of land  
for forestry, within the meaning of Treaty 3, so as to limit the rights of the Plaintiffs to hunt or fish as  
provided for in Treaty 3?  
Question Two  
If the answer to question/issue 1 is "no," does Ontario have the authority pursuant to the division of  
powers between Parliament and the legislatures under the Constitution Act, 1867 to justifiably  
infringe the rights of the Plaintiffs to hunt and fish as provided for in Treaty 3? [provided that the  
question of whether or not the particular statutes and statutory instruments at issue in this action in  
fact justifiably infringe the treaty rights shall not be determined and shall be reserved for the trial of  
the rest of this proceeding.]  
[Emphasis added.]  
  
The Plaintiffs are members of the Grassy Narrows First Nation, who entered into  
litigation with Ontario after it issued licenses to the Defendant Abitibi-Consolidated Inc.  
("Abitibi") to clear cut forests on Crown lands in the Plaintiffs' trap line areas, allegedly  
significantly interfering with their Harvesting Rights under the Treaty.  
  
"Harvesting Rights" encompasses the entirety of traditional resource harvesting activities  
in pursuit of the seasonal round.  
  
  
"Treaty Rights" includes Harvesting Rights and all other rights granted under the Treaty.  
Initially, the Plaintiffs moved to set aside the forestry licenses issued by Ontario.  
However, that application was turned into an action in which the present trial of the two issues  
was ordered.  
  
The answers to Questions One and Two will affect the issues to be determined in the next  
phase of this litigation.  
Ontario's Position  
  
Ontario apparently sees this case as a bulwark against encroachment of its Constitutional  
right to manage and receive all revenues from its Crown lands without meddling by the federal  
   
Part 1. Introduction  
2
government. It positions itself as any other property owner, entitled to enjoy the benefits of its  
lands. While it acknowledges it must respect Treaty Harvesting Rights, it interprets them  
narrowly, asserting that as owner it can unilaterally restrict or extinguish them under the Treaty  
by "taking up" lands/authorizing uses visibly incompatible with them.  
  
Ontario posits that the present difficulties in interpreting the Harvesting Clause stem from  
the Treaty Commissioners' mistaken assumption in 1873 that the Treaty 3 lands were and would  
always be owned by Canada. That assumption was proven incorrect in 1888, when the Judicial  
Committee of the Privy Council ("JCPC") in St. Catherine's Milling determined that Ontario  
owned the southerly 2/3 of the Treaty 3 lands (the "Disputed Territory"), and in and after 1912  
when the northerly 1/3 of the Treaty 3 lands (the "Keewatin Lands") were annexed to Ontario.  
Ontario asserts that as owner, only Ontario can "take up" its own lands and exercise proprietary  
rights in respect thereof.  
  
Ontario warns this Court that to hold otherwise would represent a "massive incursion"  
upon its exclusive proprietary rights over lands in Ontario.  
  
In essence, Ontario asks this Court to disregard the reference in the Harvesting Clause to  
"taking up by the Dominion," and to interpret it as if it read "taking up" [which it submits means  
"authorizing land uses" by the owner of the land, i.e., by Ontario.]  
The Ojibway Position  
  
For the Ojibway, this litigation is all about Harvesting Rights and the meaning (in both  
senses of the word) to be given to the Treaty: (1) how should it be interpreted? (2) will their  
Treaty Harvesting Rights be recognized and affirmed by Canadian Courts, or will Ontario be  
allowed to disregard and violate the promises Canada made to induce them to enter into the  
Treaty? Will the Courts ignore the plain wording of the Treaty deliberately inserted by the  
federally appointed Commissioners to protect their Harvesting Rights?  
  
The Plaintiffs submit that the reference in the Harvesting Clause to the Dominion is a  
reference to the federal government, the party that negotiated the Treaty with them, the branch of  
government with s. 91(24) jurisdiction to make treaties and enforce treaty rights.  
  
The Plaintiffs ask this Court to require the Defendants not only to honour but also to  
enforce the Harvesting Rights promise, to give effect to the plain meaning of the Harvesting  
Clause (i.e., to hold that "taking up" by the Dominion of Canada means taking up by Canada and  
that "taking up by any of the subjects thereof duly authorized therefor by the said Government"  
means that "taking up" by anyone other than the Dominion must be authorized by the Dominion  
of Canada), to require Ontario and Canada to act honourably in interpreting and enforcing the  
Treaty, and to recognize and affirm their Treaty Rights under s. 35 of the Constitution.  
  
The Plaintiffs submit that this Court should not allow Ontario and Canada to ignore/read  
out a critical promise the Commissioners deliberately made, a crucial consideration that the  
Ojibway imposed as a pre-condition to entering into the Treaty. They would not have made the  
Treaty had the promises of continued harvesting not been made.  
 
Part 1. Introduction  
3
  
The Treaty clearly specifies that without federal authorization, Ontario cannot interfere  
with their Treaty-protected Harvesting Rights. Only the federal government, the government  
specifically charged with their welfare under the Constitution, had jurisdiction in 1873 and has  
jurisdiction today to limit (or before 1982, to extinguish) these Rights. When the Commissioners  
mentioned that the Dominion must authorize any elimination of their Treaty Harvesting Rights,  
they meant Canada.  
  
From the Ojibway perspective, Ontario's extreme focus on its own property rights is  
unwarranted and legally incorrect.  
  
While Ontario can, apart from the Treaty, authorize uses of Crown lands under s. 109 that  
do not significantly interfere with their Treaty Harvesting Rights, it cannot authorize uses that  
do. Only Canada can grant such authorizations because only Canada has s. 91(24) jurisdiction  
over their Harvesting Rights. Under the Treaty, Ontario needs approval from Canada or federal  
legislation allowing an activity that significantly interferes with Harvesting Rights.  
The Issues to be Decided  
Question One  
  
All parties agree that as beneficial owner of lands now in Ontario, Ontario has  
jurisdiction to issue forestry licences under s. 109 of the Constitution. The question is whether  
Ontario can limit Harvesting Rights. The Plaintiffs submit Question One does not ask whether  
Ontario as owner is entitled to pursue its s. 109 rights in respect of those lands. It can, but only as  
long as by so doing, its activities do not violate Treaty Harvesting Rights. Ontario's s. 109 rights  
are limited by Treaty Harvesting Rights. Unless the Treaty specifically authorized Ontario to do  
so, and the Plaintiffs submit that it does not, Ontario lacks jurisdiction to significantly interfere  
with Treaty Harvesting Rights. Both under the Treaty and the Constitution, Canada can limit (or  
before 1982 extinguish) Treaty Rights. To the extent that Ontario authorizes forestry activities  
that significantly infringe the hunting and trapping rights constitutionally guaranteed, it intrudes  
impermissibly into federal jurisdiction.  
  
Counsel for Ontario concede that it must respect Treaty Rights but submit that the Treaty  
allows Ontario to "take up" lands in Ontario and by so doing, to limit the area where the Ojibway  
have Treaty Rights to hunt, fish and trap.  
  
Counsel for Ontario submit that in 1873, the Ojibway understood and agreed that their  
Harvesting Rights would be progressively and increasingly limited by "taking up"/use/  
occupation of land as time passed.  
  
Counsel for the Plaintiffs submit that the Commissioners promised that the Ojibway  
would have their Harvesting Rights as in the past, knowing that Canada could permit their  
limitation, or before 1982, their extinguishment.  
  
In 1891 Canada passed legislation that the Plaintiffs contend extinguished Treaty 3  
Harvesting Rights on lands "taken up" in the Disputed Territory.  
   
Part 1. Introduction  
4
  
Counsel for Ontario submit that when Ontario became the owner of the Keewatin Lands  
in 1912, the 1891 Legislation became applicable to the Keewatin Lands as well.  
  
Counsel for the Plaintiffs submit the annexation of Keewatin had no effect on the Treaty  
Rights of the Treaty 3 Ojibway in Keewatin. This Court must decide whether Ontario is correct  
in submitting that Ojibway Treaty 3 Harvesting Rights were affected upon the annexation of  
Keewatin to Ontario. In other words, were the Ojibway's rights under the Treaty adversely  
impacted by the 1891 legislation, which had been passed to deal with problems arising from the  
Boundary Dispute, even though the Keewatin Lands had not been the subject of that Dispute?  
Question Two  
  
Even if the Treaty or the 1891 Legislation did/does not allow Ontario to limit or  
extinguish Ojibway Harvesting Rights by authorizing land uses within Ontario, can Ontario  
nevertheless pass laws that infringe Treaty Harvesting Rights if they can be justified under the  
Sparrow test?  
Evidentiary Matters  
  
It should go without saying that the fact-finding process here was atypical. As Treaty 3  
was made in 1873, obviously neither the Commissioners nor the Chiefs were alive to provide  
firsthand evidence about their intentions and understanding of the Treaty Harvesting Clause in  
1873.  
  
In cases such as this, the higher Courts have directed trial judges to strive to ascertain the  
understanding not only of the Euro-Canadian parties, but also of the Aboriginal parties. They  
must look beyond the formal wording of the treaties and delve into the circumstances and the  
context in which each particular treaty was made.  
  
With the exception of the evidence of Mr. Fobister, a named Plaintiff, the oral evidence  
here consisted entirely of expert evidence. The experts will be referred to by their surnames  
throughout these Reasons.  
  
The parties agreed that the voluminous reports of the experts would be entered into  
evidence and treated as if they had been given viva voce. As a result, their oral evidence  
consisted largely of cross-examination.  
  
This Court heard much ethno-historical and anthropological evidence, adduced primarily  
to assist in interpreting the historical documents and in gleaning the understanding and intentions  
of the parties, particularly the Aboriginal parties. It also heard historical and political expert  
evidence, primarily relevant to the intentions and understanding of the Euro-Canadian Treaty  
Commissioners at the time the Treaty was negotiated. The evidence included theories,  
expositions and opinions on the reasons for the formation of Canada, the s. 91(24) placement  
under federal jurisdiction of "Indians and Lands Reserved for the Indians" and of the  
Constitutionality of a treaty provision specifying that Canada would "take up" land or authorize  
   
Part 1. Introduction  
5
the "taking up" of land (relevant to Question One) and of any Ontario act or legislation  
significantly and adversely interfering with Treaty Harvesting Rights (relevant to Question Two.)  
  
While the experts generally agreed on the timing of events and the authenticity of  
documents, they disagreed in their interpretations of various events and documents, especially as  
they related to the parties' intentions, understanding of the Treaty terms and even the identity of  
the Treaty parties.  
  
The documentary evidence included Sir John A. Macdonald's handwritten notes relating  
to s. 91(24), taken at the Quebec Conference, as well as thousands of pages of letters, reports and  
newspaper accounts generated both pre- and post-1873, arguably relevant to intention and  
understanding.  
  
The experts opined as to the correct interpretations of those documents, and attempted to  
assist this Court in comprehending and assessing the historical, cultural and political context in  
which the Treaty was made.  
  
They agreed that it is easier to glean from the English language documents the intention  
and understanding of the English speaking Treaty party than of the Ojibway. Most of the  
documents in evidence, generated as they were by Euro-Canadians, reflect the Euro-Canadian  
perspective. Caution and contextual evidence are required in assessing Ojibway understanding  
and intent because differences in Euro-Canadian and Ojibway discourse can give rise to the  
potential for misunderstanding.  
  
Chartrand wrote in his report, Ex. 60, at p. 30:  
The fact that the only documents available are in English, and report only the English interpretations  
of statements and queries by Ojibway spokespersons, limits the scope of sources of information for  
directly reconstructing a complete Aboriginal understanding of the Treaty provisions.  
  
I have underlined mentions of Government and The Queen in the documents, to make it  
easier to find them when considering whether the Ojibway understood they were dealing with the  
Queen, the Government of Canada or some generic government.  
2. THE ORGANIZATION OF THESE REASONS  
  
These Reasons are organized under the following sections:  
(1) Introduction.  
(2) The Organization of these Reasons.  
(3) Overview.  
(4) Euro-Canadian History 1758-1871 - History/Evidence Relevant to Euro-Canadian  
Perspective - Treaty Objectives/ Understanding and Intention.  
(5) The Ojibway Perspective – Ojibway History – History/Evidence Relevant to  
Treaty 3 Ojibway Perspective  
(6) The Lead-Up to the 1873 Negotiations.  
(7) The 1873 Treaty Negotiations.  
(8) Analysis of the Historical Evidence as it relates to the Interests of the Parties.  
 
Part 2. The Organization of these Reasons  
6
(9) Credibility of the Experts – Findings.  
(10) Findings of Fact Part I relate generally to evidence on matters up to and including  
the signing of Treaty 3, including findings on Mutual Intention and Understanding  
of the Parties as to the Meaning of the Harvesting Clause and the Identity of the  
Treaty parties in 1873. It contains factual findings as to whether the  
Commissioners' reference to taking up by Canada was deliberate (as submitted by  
the Plaintiffs) or a mistake (as submitted by Ontario) and as to whether the  
Commissioners regarded the power to limit Harvesting Rights as a power of the  
owner or of Canada under s. 91(24). It includes findings on the Treaty  
Commissioners' perceptions in 1873 about Canada's s. 91(24) powers and duties  
and as to whether they considered the existence of the Boundary Dispute and its  
possible implications to be relevant in drafting the Harvesting Clause. Addressing  
the interpretation that best reconciles the interests of both parties at the time the  
Treaty was made involved the assessment of some evidence of intention not  
directly related to the negotiations themselves. I placed these findings on mutual  
intention in the section of these Reasons immediately after the details of the  
negotiations, because many of my conclusions on understanding and intent also  
related to the content of the discussions at the negotiations. My findings were not  
based simply on the contemporaneous documents alone, but also on the expert  
evidence with regard to context. To the extent I felt it appropriate, I referred to  
that evidence and explained my findings in the same section of these Reasons. I  
then separately addressed whether the Ojibway understood that Canada could  
abridge their Harvesting Rights.  
(11) Post-Treaty Events: History/Developments 1873-to the Present, including the  
Boundary Dispute and its fallout; Political, Jurisprudential and Statutory  
Developments 1891-1894; the Annexation of Keewatin to Ontario in 1912;  
Relevant Present-Day Circumstances.  
(12) Findings of Fact Part II: Post-Treaty matters.  
(13) The Answer to Question One, including Application of Law to Facts; the  
Meaning of the Treaty as of 1873; the Effect of the 1891-1894 Legislation/  
Agreement in the Disputed Territory; Treaty Interpretation in Keewatin after its  
annexation to Ontario in 1912.  
(14) The Answer to Question Two.  
(15) The Effect of the Answers to Questions One and Two.  
(16) The Honour of the Crown.  
(17) The Next Stage of this Litigation.  
(18) Final Observations.  
(19) Disposition.  
  
These Reasons also include Appendix A, a document prepared by counsel at my request,  
setting out the procedural history; Appendix B, an Agreement regarding Historical Documents;  
and Appendix C. a Table of Cases listed alphabetically by the short form used in these Reasons.  
The full cites only appear in Appendix C, rather than at any point in the Reasons.  
Part 3. Overview  
7
3. OVERVIEW  
  
When Treaty 3 was finally signed in 1873, Canada was only six years old.  
  
1873 was a time of promise and the making of promises, a time when nation building was  
in high gear. The country's course was still being charted.  
  
In the six short years since Confederation, Canada had already acquired its own "empire."  
Through annexation of Rupert's Land and the Northwest Territories (the "West"), it had  
expanded from an area of approximately 400,000 square miles at Confederation to more than  
3,300,000 square miles (including 2,700,000 square miles in the newly added Northwest  
Territories and 200,000 square miles in the newly added British Columbia.)  
  
Although much had been accomplished, much still needed to be done.  
  
In the years preceding 1867, particularly in present-day Ontario where a scarcity of arable  
land had been a major political issue since at least 1818, politicians had clamoured for the  
opportunity to annex the West, then under license and charter to the Hudson's Bay Company  
("HBC Territories.") During the 1850s, for reasons detailed later in these Reasons, it had become  
evident that Britain might be prepared to transfer the West to an expanded British North  
American polity (hereinafter "Canada"), were Canada to shoulder its costs. In the late 1850s and  
early 1860s, leading politicians in Canada increasingly saw Confederation as the best means to  
achieve the expansion they so fervently desired. However, promises first had to be made to  
satisfy conditions to transfer imposed by Great Britain, including promises to protect the First  
Nations in those territories.  
  
At Confederation, in anticipation of the transfer of the West/HBC Territories, Canada  
took responsibility for Indians and Indian lands. At this trial, the experts disagreed about the  
rationale for the assignment of s. 91(24) jurisdiction to Canada. However, they agreed that the  
Fathers of Confederation understood that treaties with the First Nations in the West would need  
to be made before it could be settled or developed.  
  
The vast Treaty 3 lands, covering an area of about 55,000 square miles, have often been  
called "the lands between" because they were located between the settled areas of Canada to the  
East and the fertile areas targeted for settlement to the West.  
  
In 1868, even before it started to negotiate Treaty terms, Canada had begun to build an  
immigrant travel route (the "Dawson Route") to move settlers westward across Treaty 3 lands  
and waters. In 1871, to induce British Columbia to join the country, Canada had promised to  
build a transcontinental railroad that would also traverse the Treaty 3 territory.  
  
There was agreement on most of Canada's reasons for wanting to conclude Treaty 3.  
  
In each of 1871 and 1872, Canada had sent treaty commissioners to negotiate with the  
Treaty 3 Chiefs, without success. Counsel for the Plaintiffs submitted that as time passed,  
Canada's need to complete the Treaty became more acute.  
 
Part 3. Overview  
8
  
By 1872, the Dawson Route was open. Settlers were already crossing through the Treaty  
3 territory enroute to the West. The Treaty 3 Ojibway were feeling violated. By 1873, the  
security of travellers over the Dawson Route and of surveyors preparing for the construction of  
the Canadian Pacific Railway ("CPR") was a concern. Canada feared it would have to incur the  
costs of stationing troops in the area. The CPR needed to be completed between the Red River  
and Lake Superior by December 31, 1876.  
  
In 1873, Canada sweetened its offers. It perceived that the Ojibway were being  
particularly "obstinate." Many of the Ojibway Chiefs were known to oppose entering into a  
treaty agreement that would allow for a permanent Euro-Canadian presence on Treaty 3 lands.  
  
After three days of intense negotiations, which will be detailed later in these Reasons,  
Treaty 3 was finally signed on October 3, 1873.  
  
Given the differing interpretations of the Harvesting Clause, one of my principal tasks  
has been to assess all of the evidence, including the historical documentation, to determine the  
mutual understanding and intent of the Commissioners and the Ojibway in respect of the Treaty  
Harvesting promise in 1873, and to arrive at the interpretation of common intention that best  
reconciles the interests of the parties at the time the Treaty was signed.  
  
It is uncontroverted that during the Treaty negotiations, the Commissioners specifically  
promised the Ojibway that reserves would be established for their exclusive use that would  
include the areas they had previously used for gardening/agricultural purposes and for sturgeon  
fishing. In the years immediately following the conclusion of the Treaty, Canada purported to set  
up reserves and took other steps to implement and enforce the Treaty.  
  
After the Treaty was concluded, wrangling between Canada and Ontario over the  
boundary between Ontario and the Northwest Territories ("the Boundary Dispute") led to serious  
negative repercussions for the Treaty 3 Ojibway.  
  
The Treaty Commissioners' knowledge of the existence and potential implications of the  
Boundary Dispute in 1873 is relevant to their intentions and motivations in drafting the Treaty  
provision under consideration.  
  
The experts agreed that in 1873 the Treaty Commissioners knew that Ontario was  
asserting a claim of ownership of the Disputed Territory. They disagreed about the effect of  
knowledge of the Boundary Dispute on the drafting of the wording of the Treaty document,  
including the Harvesting Clause.  
  
In the immediate aftermath of the Treaty, Canada actively protected the Ojibway's  
hunting and fishing rights.  
  
In late 1888, the JCPC in St. Catherine's Milling held that Ontario owned the Disputed  
Territory. Ontario then claimed that Canada had had no jurisdiction to set up Treaty 3 reserves  
within the Disputed Territory without its consent. It asserted that as owner, it could "take up"  
lands within the Disputed Territory unburdened by the Ojibway's traditional Harvesting Rights  
Part 3. Overview  
9
under the Treaty. Put differently, Ontario contended that it could authorize uses of lands within  
the Disputed Territory and by so doing, extinguish Ojibway Treaty Harvesting Rights on those  
lands. It asserted that it could progressively extinguish Treaty Harvesting Rights/ diminish the  
geographical area available for traditional harvesting by authorizing land uses incompatible with  
Harvesting Rights and without regard to them.  
  
Negotiations from 1889 to 1891 between Canada and Ontario culminated in reciprocal  
legislation, the 1891 Legislation ratified by the Agreement in 1894 (the "1891 Legislation"),  
which in effect provided that Ontario could remove Ojibway Harvesting Rights from any lands  
within the Disputed Territory that it had "taken up" in the past or would "take up" in the future,  
even if the uses so authorized would significantly interfere with Ojibway Harvesting Rights.  
Under the 1891 Legislation, Canada has/had no continuing role in authorizing the use of lands  
within the Disputed Territory.  
  
In other words, Canada passed legislation that the Plaintiffs submit amended the 1873  
Treaty to allow "taking up" by Ontario within the Disputed Territory without any authorization  
by Canada.  
  
It must be emphasized at the outset that the lands in issue in this litigation are not in the  
Disputed Territory but in Keewatin, which at the time was unaffected by the 1891 Legislation. If  
the 1912 annexation did not affect it, the 1873 Treaty Harvesting Rights continue in respect of  
Keewatin to this day.  
  
When Keewatin was annexed to Ontario in 1912, Canada and Ontario did not pass  
legislation expressly allowing Ontario to "take up" lands in Keewatin without authorization from  
Canada. Ontario submitted the 1891 Legislation applied to Keewatin after 1912. The Plaintiffs  
submitted it did not.  
  
Canada submitted that federal legislation, passed in 1912 in respect of Indians when  
Keewatin was annexed to Ontario, had the effect of devolving all of Canada's s. 91(24) duties  
and responsibilities to Ontario.  
  
From a legal perspective I see my task as follows:  
Question One  
(a) To apply the principles of Treaty interpretation mandated by the higher courts;  
(b) To consider the arguments of Ontario that the Plaintiffs' submissions do not square  
with Constitutional reality and should be rejected for that reason; and  
(c) To consider the effect of the annexation of Keewatin to Ontario in 1912.  
  
Counsel for Ontario submitted that the answer to Question One should be Yes. Under  
Treaty 3 Ontario can unilaterally limit the Ojibway hunting rights by "taking up" lands in  
Ontario. A "Yes" answer to Question One would give effect to the mutual intention of the parties  
alleged by Ontario, including an Ojibway understanding and agreement that as time passed and  
development was authorized, their Harvesting Rights would be incrementally diminished. A  
 
Part 3. Overview  
10  
"Yes" answer would give effect to the Ojibway understanding alleged by Ontario that they were  
dealing, not with Canada, but with the Queen. Even if this Court finds Ontario could not "take  
up" lands in 1873, upon annexation of the Keewatin Lands to Ontario in 1912, it has been able to  
"take up" lands under the Treaty in all of Ontario. The 1891 Legislation extinguishing Treaty  
Harvesting Rights on lands "taken up" by Ontario applied in Keewatin.  
  
Counsel for the Plaintiffs submitted that in 1873 the mutual understanding and intention  
of the parties was that (away from the Dawson Route and CPR right of way), Canada would not  
allow the Euro-Canadians to significantly interfere with Ojibway Harvesting Rights, at least not  
without actively considering whether such interference should be allowed and giving federal  
authorization to allow it under the Treaty and s. 91(24). While the Treaty Commissioners  
understood that if Canada lost the Boundary Dispute, Ontario would be able, under s. 109, to  
unilaterally authorize development of lands within Ontario, they also anticipated and deliberately  
provided that if such development would significantly interfere with Harvesting Rights, Canada  
would be able to require the user of land to obtain authorization from Canada for that use before  
it could proceed with such development.  
  
Counsel for the Plaintiffs submitted that Ojibway Treaty Harvesting Rights in Keewatin  
are unaffected by the 1891 and 1912 Legislation. Canada did not intend the adverse effects of the  
Boundary Dispute imposed on the Treaty 3 Ojibway in the Disputed Territory to be applied to  
Keewatin, an area unaffected by the Boundary Dispute.  
Question Two  
If the answer to Question One is "No" and Ontario cannot access the taking up  
clause in the Treaty, does Ontario nevertheless have authority under the  
Constitution to significantly infringe Treaty Harvesting Rights by meeting the  
criteria for infringement set out in Sparrow?  
  
Counsel for Ontario submitted that if it can meet the Sparrow test, Ontario can justifiably  
infringe Treaty Harvesting Rights. The doctrine of inter-jurisdictional immunity does not apply  
in the circumstances here.  
  
Citing the combined effect of the doctrine of inter-jurisdictional immunity and of s. 88 of  
the Indian Act, counsel for the Plaintiffs submitted that only Canada can justifiably infringe  
Treaty Rights if it can satisfy the Sparrow test; Ontario cannot.  
  
At this stage in the litigation, this Court is not being asked to determine whether Ontario  
has breached the Treaty. If the answer to Question 2 is Yes, Ontario will still have to meet the  
Sparrow test. If the answer to Question 2 is No, at the next stage it will still be necessary to  
determine whether Ontario's proposed activities constitute prima facie infringement of Treaty  
Harvesting Rights.  
 
Part 4. Euro-Canadian History 1758-1871  
11  
4. EURO-CANADIAN HISTORY 1758-1871  
The Historical/Political Evidence  
  
In gleaning the perspective and understanding of the Treaty Commissioners at the time of  
the negotiations and signing of Treaty 3 in 1873, the historical and political evidence is relevant.  
  
Later in these Reasons, Alexander Morris' understanding of Canada's role vis-à-vis  
Indians under s. 91(24) is examined in the context of the 1873 Treaty negotiations and his  
mention of the Dominion in the Harvesting Clause.  
  
Morris would have had firsthand knowledge of the contemporaneous historical matters  
covered here. They are relevant to his and Canada's understanding and intent at the time the  
Treaty was made.  
  
Professor Milloy ("Milloy"), a Professor of History and Canadian Studies, was called to  
give expert evidence by counsel for the Plaintiffs. He was qualified as an historian with  
particular expertise in Canadian history and the history of the development of Indian policy in  
Canada. He provided context, not only with regard to the reasons for the assignment to the  
federal government of s. 91(24) of the Constitution, but also about the Treaty Commissioners'  
intent and their understanding of Canada's proper role vis-à-vis Indians/Indian lands.  
  
Professor Saywell ("Saywell"), a retired Professor in Canadian History, was called by  
counsel for Ontario and was qualified as "an expert in the political and Constitutional history of  
Canada, particularly as it relates to federalism and federal/provincial relations, including the  
period from Confederation to 1912." His evidence was given in advance of trial pursuant to Rule  
36.  
  
Professor Vipond ("Vipond"), called to give evidence by counsel for Canada, was  
qualified as a political scientist who studies constitutions. He gave evidence about federal-  
provincial relations in the period following Confederation.  
Factors Leading to Federal Control Over Indian Affairs  
  
In interpreting the Treaty, the history behind the placement of s. 91(24), Indians and  
Lands Reserved for Indians, under federal jurisdiction is germane to intent and understanding of  
the Treaty Commissioners in 1873.  
1756 - Confederation  
British Military Policies  
  
Milloy gave evidence about why the federal government assumed responsibility for  
Indians and Indian lands at Confederation, the perceived scope of s. 91(24) and the Treaty  
Commissioners' understanding in 1873 of Canada's role vis-à-vis Indians. That evidence was  
         
Part 4. Euro-Canadian History 1758-1871  
12  
pertinent to whether they deliberately mentioned the Dominion Government in the Harvesting  
Clause at least in part to protect Treaty Harvesting Rights.  
  
Milloy also provided background about the history of British/Indian relations in British  
North America, including the American colonies prior to the American Revolution. He said the  
Imperial government deliberately placed the administration of Indian Affairs under centralized  
control and kept it out of the hands of local colonists. It was a firmly established Imperial policy,  
informed by various factors and circumstances that he outlined during his evidence.  
  
He said that at the beginning of the Seven Years War, to further its North American  
military interests the British Imperial Government created a department in 1756 to cultivate good  
relations with the Indians. It had learned that the Indians would align with the French if they  
were treated poorly by the British. (Milloy, October 9, 2009.)  
  
Even after Quebec and Montreal fell in 1759 and 1760 and the British became militarily  
dominant in what had been New France, the defence of North America continued to be fraught  
with difficulty. Due to ongoing hostilities on the frontier, Indian Superintendent Sir William  
Johnson met with Indian tribes at Detroit in 1761, in an unsuccessful attempt to broker a peace  
arrangement. In 1763, Indian massacres of civilians and soldiers and attacks over several months  
on Forts Niagara, Pitt and Detroit, among others were causing panic across the frontier.  
  
The Board of Trade, the advisor to the Imperial Government on colonial matters,  
suggested that Britain's continuing difficulty in managing and recruiting North American Indians  
as allies was stemming from interference by local settlers and governments. It rejected a military  
approach, favouring "conciliating the minds of the Indians by the mildness of His Majesty's  
Government," and recommended that the Imperial Government interpose itself between the  
Indians and colonial governments/merchants/traders. It should manage its relationships with the  
Indians from the top, i.e., directly from Whitehall. Prevention of local interference in Indian  
matters, together with the recognition of Indian tenure to unceded lands and their preservation as  
Indian hunting grounds, would be the cornerstone of conciliation.  
The Royal Proclamation of 1763  
  
The Royal Proclamation of 1763 that resulted from that recommendation included the  
following:  
And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies,  
that the several Nations or Tribes of Indians with whom We are connected, and who live under our  
Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and  
Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as  
their Hunting Grounds -- We do therefore, with the Advice of our Privy Council, declare it to be our  
Royal Will and Pleasure, that no Governor or Commander in Chief in any of our Colonies … do  
presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands  
beyond the Bounds of their respective Governments… that no Governor or Commander in Chief in  
any of our other Colonies or Plantations in America … until our further Pleasure be known, to grant  
Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers  
which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever,  
 
Part 4. Euro-Canadian History 1758-1871  
13  
which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or  
any of them.  
And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to  
reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the  
Lands and Territories not included within the Limits of Our said Three new Governments, or within  
the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and  
Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West  
and North West as aforesaid.  
And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making  
any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved,  
without our especial leave and Licence for that Purpose first obtained  
And We do further strictly enjoin and require all Persons whatever who have either wilfully or  
inadvertently seated themselves upon any Lands within the Countries above described or upon any  
other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians  
as aforesaid, forthwith to remove themselves from such Settlements.  
And whereas Great Frauds and abuses have been committed in purchasing lands of the Indians, to the  
great prejudice of our interests, and to the great dissatisfaction of the said Indians; In order, therefore,  
to prevent such irregularities for the future, and to the End that the Indians may be convinced of our  
justice and determined resolution to remove all reasonable cause of discontent, we do, with the advice  
of our Privy Council strictly enjoin and require, that no private person do presume to make any  
purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our  
Colonies where, we have thought proper to allow settlement; but that, if at any Time any of the said  
Indians should be inclined to dispose of the said Lands, the same shall be purchased only for us, in  
our name, at some public meeting or assembly of the said Indians, to be held for the purpose by the  
Governor or Commander in Chief of our Colonies respectively within which they shall lie.  
[Emphasis added.]  
  
Superintendent Johnson read the Proclamation to the collected Indians at Fort Niagara in  
August of 1764, setting out that the lands reserved to them as their hunting grounds would be  
protected from occupation by private persons.  
  
The procedures to be followed were fleshed out in subsequent Orders, notably Lord  
Dorchester's Instructions dated December 24, 1794, directing that treaty negotiations must be  
held in public with "great solemnity and ceremony" according to the customs of the Indians; that  
the Crown would be represented by the Imperial Department of Indian Affairs; an interpreter  
would be present; deeds of conveyance including a description of the lands being surrendered  
and other terms would be signed, witnessed and provided to all parties; and payments would be  
delivered "with the greatest possible notoriety."  
  
In summary, the elements of Imperial Indian Affairs management were: (1) exclusive  
Imperial jurisdiction in the colonies – conciliatory activities of the Indian Department, including  
diplomatic attention to tribal concerns; distribution of presents; negotiation of treaties; and,  
where treaties had been made, payment of annuities and protection of reserves; (2) exclusion of  
colonial governments from involvement in Indian Affairs; and (3) respect for tribal self-  
government.  
Part 4. Euro-Canadian History 1758-1871  
14  
  
In British North America between 1763 and the early 1800s, the Imperial authorities kept  
direct control over Indian affairs, insulating the Indians from local interference. They prohibited  
settlers from dealing directly with Indians or taking possession of lands reserved to the Indians as  
their hunting grounds.  
  
The Imperial government reaped military benefits from the conciliation policy during the  
American Revolution and again in 1812, when the First Nations rallied in the defence of Upper  
Canada against the Americans.  
  
Milloy gave evidence that these Imperial policies were uniformly followed in Upper  
Canada (hereinafter "Ontario.") In the eastern portion of British North America (New  
Brunswick, Nova Scotia and Prince Edward Island), where Indians were not perceived as a  
serious military threat, they were not. In the Maritimes, some Peace and Friendship Treaties were  
made, which were not instruments of surrender but of peace. They provided for the cessation of  
hostilities; the return of captives; maintenance of good relations; non-molestation of settlers and  
continuation of various harvesting rights. Von Gernet conceded these treaties were used as  
precedents in some respects by the Treaty Commissioners in framing Treaty 3. (Milloy, October  
9, 2009 at pp. 131-135; Von Gernet, December 4, 2009 at p. 19.)  
  
After the Napoleonic Wars ended in 1815, cost-cutting initiatives ensued as a result of  
widespread concerns in Britain about the high level of debt that had been incurred. At about the  
same time, British interest in its North American Empire was beginning to wane, partly as a  
result of its costs, and partly as a result of Britain's move from mercantilism to free trade  
(mentioned later in the section of these Reasons on Circumstances Leading to Confederation.)  
Saywell said (April 6, 2009 at p. 59) that after the War of 1812, England became increasingly  
unwilling to bear the costs of maintaining the military and the costs of Indians in Canada.  
  
However, the rise of the humanitarian movement provided a new impetus and rationale  
for continuing central Imperial control of Indian affairs. After British Parliament passed the anti-  
slavery law in 1833 (Slavery Abolition Act 1833 (U.K.), 3 & 4, William IV c. 73), the large  
British humanitarian community founded the Aborigines Protection Society in 1837 to protect  
and foster the interests of the indigenous peoples throughout the Empire.  
  
Milloy's evidence on October 9, 2009 contains the following at pp. 80-81, 83, 87:  
…One of the things that Wilberforce is reputed to have said as he left the chamber that night [the  
night that they passed the anti-slavery law], he supposedly turned to his colleague and said, "Who do  
we liberate next?"… "What's the next …challenge?" We have the formation of these societies in  
Great Britian that are terribly interested in what's going on in terms of the relationship between the  
Empire and its manifestations overseas, the settlers, business people and the treatment of indigenous  
people, and really want that to be humanitarian, really want that to be benevolent for First Nations  
people in the various colonies.  
  
The humanitarian approach that Milloy described as a "policy of civilization" involved  
the continuation of the making of presents, an increased emphasis on education (arming the  
Aborigines with skills in reading, writing and arithmetic), the encouragement of agriculture and  
Part 4. Euro-Canadian History 1758-1871  
15  
other European modalities aimed at promoting Indian self-sufficiency. (Milloy, October 9, 2009  
at pp. 104-106)  
  
Milloy gave evidence that in 1837, after a Parliamentary Select Committee on the  
Aborigines of the Empire held hearings to develop principles of conduct for the Empire, it  
concluded that the threat of colonial governments to indigenous people increased in proportion to  
their powers. The Committee concluded that colonial legislatures could not be trusted to treat  
indigenous people fairly. It recommended that the Imperial government continue to stand  
between the Indians and colonial governments/settlers. The humanitarians persuaded Imperial  
officials that the central government should maintain control over Indian affairs to ensure  
protection of Aboriginal people against exploitation by colonial governments and their  
constituents.  
  
Reserve creation, where the "alchemy" of transforming "uncivilized" Indians into  
productive yeoman farmers could be carried out, was an important means of implementing the  
policy of civilization. (Milloy, October 9, 2009.)  
  
Counsel for Ontario relied on the evidence of Von Gernet that in Ontario as settlement  
progressed, the Imperial Government transferred responsibility for Indian matters increasingly to  
the local government.  
  
Counsel for the Plaintiffs submitted that in Ontario until 1860, Imperial authorities  
continued to insulate the Indians even after it achieved responsible government. Milloy gave  
evidence that in the late 1840s, there was a dispute between Euro-Canadians and Ojibway over  
mining on unsurrendered lands north of Lake Huron and Lake Superior. The colonial  
government of Ontario disputed the Ojibway claims to territorial rights. The Governor General,  
Lord Elgin, acting on the advice of Imperial Indian Affairs, ordered Imperial officials to conduct  
an investigation into the validity of the Indian claims. The Vidal Anderson Commission gathered  
information at his request and then reported that the claims of the Indians were legitimate. A  
treaty was negotiated.  
  
In cross-examination on January 20, 2010, Chartrand conceded the Imperial role, as  
follows:  
Q. … what we see …is the Imperial officials in relation to an imperial matter, where there's the  
potential of colonial interference, initiating an investigation to first ascertain …the facts on the  
ground…?  
A. Yes. And this was in specific response to information, this report, 1847 report, that had come to  
[Lord Elgin's] attention, that he found unsatisfactory.  
Circumstances Leading to Confederation and the Post-Confederation Treaties  
British Economic Policies  
 Milloy gave evidence that much of the impetus for Confederation resulted from a  
wholesale change in British economic policy from a mercantile to a free-trade structure,  
   
Part 4. Euro-Canadian History 1758-1871  
16  
signalled in 1846 by the repeal of the Corn Laws. That change had huge economic/political  
implications for the people who lived in Britain's remaining North American colonies.  
 In a mercantile economy, colonists were required to send/sell all their produce to the  
mother country and to purchase all their goods from it. If it cost them $1.00 to produce and ship  
a quantity of goods from Nova Scotia to London, and a producer in the United States could  
produce and ship the same for $.50, the British would impose a tariff of at least $0.51 to make  
the American goods more expensive than the colonial goods. That tariff was thought to be  
beneficial to the colonial merchants because they would not otherwise have been able to compete  
with non-colonial producers. Since Britain required the shipment of all colonial goods to it, it  
had no need to purchase goods produced elsewhere. It could use its huge trade surpluses to cover  
the costs of its Empire, including defence, administration and Indian expenses.  
 However, as Britain moved from an agricultural to a largely commercial/industrial  
economy, goods with tariffs applied to them became more and more expensive for members of  
its increasingly urban-based workforce, people who did not grow but purchased their own food.  
When they demanded higher wages to meet their costs, industrialists lobbied the government to  
abolish tariffs and allow the inflow of the cheapest possible food/commodities. Free trade  
legislation was eventually passed.  
 Once free trade was implemented, the trade surpluses inherent in a mercantile economy  
were no longer available to pay the costs of Empire. Once the economic benefits of Empire were  
diminished, lobbyists (most notably members of the Little England Movement) urged the British  
government to trim the costs of Empire, including the costs of conciliating and civilizing the  
Indians.  
 Saywell said (April 6, 2009 at p. 60) that "with the triumph of free trade, the end of  
mercantilism, the British forced [us] to pay for the Indians ourselves."  
 Milloy gave evidence that at the same time, in some areas, as the settler populations were  
increasing, settler militias were diminishing the need for military alliances with the Indians.  
Nevertheless, until 1860 in Ontario, Britain continued to negotiate and honour treaties and to  
protect Indians from frauds and abuses by local settlers and governments. If Indians didn't  
choose to become civilized, its policy was to allow them to follow their old ways.  
Euro-Canadian Contact with the Treaty 3 Ojibway from the Euro-Canadian Perspective  
The HBC Territories  
 Milloy gave evidence that in Britain from the mid to late 1840s through the mid-1860s,  
there was increasing concern about the HBC Territories. While reluctant to pay defense and  
other costs for the reasons just mentioned, Britain nevertheless wanted to preserve them as  
British territories. The HBC held Rupert's Land under its 17th century Charter; the Northwest  
Territories were held by it pursuant to Imperial trading licences.  
   
Part 4. Euro-Canadian History 1758-1871  
17  
 During the 1850s, the Imperial and Financial Society that had purchased the HBC shares,  
Charter and licenses unsuccessfully lobbied to establish a colony in the HBC Territories and for  
Great Britain to assume the costs. To use Milloy's words (October 9, 2009), at that point, the  
"question of administration" of Rupert's Land and the Northwest Territories became "a crisis of  
administration."  
 At the same time that Britain was facing concerns about the costs of Empire within  
British North America, especially within the political class in Ontario, there was a marked  
increase in interest in the West, which was now being perceived as an area with settlement and  
resource development potential. George Brown ("Brown"), reform politician and publisher of  
The Globe, began to publish editorials and letters about Canada's destiny/expansion to the West.  
The Toronto Board of Trade became involved. Other supporters of western expansion included  
William McDougall, publisher of The North American, as well as early members of the Liberal  
Party. In Canada East, Cartier was a promoter.  
 By 1858, Alexander Morris (who was to become the lead Treaty Commissioner in 1873)  
was already making speeches characterizing the HBC as an obstacle to progress, and promoting  
westward expansion and Confederation. Morris' 1858 speech, reproduced in Ex. 130, Nova  
Brittania at pages 29-30 and 32, contains the following:  
Will the gathering of a few peltries compensate for the withdrawal of such a region [a paradise of  
fertility] from the industry of our race? Assuredly not. … It will suffice to express my confident  
belief that Canada has only to express in firm but respectful tones her demands to that vast territory  
and those will be cheerfully acceded to by Great Britain … [a] comprehensive appreciation of the  
requirements of the country, and a proper sense of the responsibilities to be assumed in regard to the  
well being of the native and other inhabitants…  
[Emphasis added.]  
The Hind & Palliser Expeditions  
 Given the wakening interest in the West, in 1857 both Britain and Canada West sent  
expeditions, headed by Palliser and Hind respectively, to investigate and gauge the potential of  
the HBC Territories.  
 Before 1857, the only Euro-Canadian presence in the Treaty 3 area was the HBC, with  
permanent posts at Rat Portage (now Kenora, at the north end of the Lake of the Woods) and  
Fort Frances (on the Rainy River.)  
 Von Gernet in his report Ex. 44 set out the motivation for the Palliser expedition sent by  
Britain:  
Her Majesty's Government being anxious to obtain correct information with respect to the facilities or  
difficulties of communication between the Canadas and the country west of Lake Superior and north  
of the 49th parallel, determined early in the year 1857 to send out an expedition to examine the  
present route of travel with a view to ascertain whether it could be either shortened or rendered less  
formidable by any reasonable outlay, and whether if such an expenditure of capital were devoted to  
that object there was any prospect of a result favourable to emigration or agriculture commensurate  
with the sacrifice.  
 
Part 4. Euro-Canadian History 1758-1871  
18  
 Chartrand gave evidence that members of both the Palliser and Hind Expeditions filed  
reports on the feasibility of constructing an immigrant travel route from the western shore of  
Lake Superior to the Red River settlement. Palliser concluded it would be cost prohibitive.  
 Simon Dawson ("Dawson"), who was to become another Treaty Commissioner in 1873,  
first came into contact with the Ojibway living in "the lands between" as a member of the Hind  
Expedition. At that time he reported on the possibility of building an immigrant travel route  
connecting Lake Superior to the Red River Settlement.  
 In 1858, understanding that it would be unlikely that Britain would transfer the HBC  
Territories to the United Provinces of Canada alone, at hearings held in England to consider  
whether the HBC licenses should be renewed, Chief Justice Draper representing the United  
Canadas suggested that Canada would be a safe haven for the Territories if there were a  
Confederative deal. Britain eventually agreed that if a confederated Canada were brought into  
existence, it would transfer the HBC Territories to Canada, provided that Canada would agree to  
fulfill specified conditions, including "to protect the Indians within the Territories in conformity  
with the equitable principles which have uniformly governed the British Crown in its dealings  
with the Aborigines, and payment of the associated costs." [Emphasis added.]  
1860: Transfer of Imperial Administration of Indian Affairs to the United Canadas  
 Despite the resistance of the Imperial civil secretaries, in 1860 Imperial authorities  
relinquished control over Indian Affairs in the United Provinces.  
 At that time, many of the personnel of the Imperial Indian Affairs Department transferred  
from the employ of the Imperial Government (the Civil Secretary of the Governor, the Senior  
Imperial Representative) to the employ of the United Provinces of Canada (the Office of the  
Crown Lands Department.) For instance, William Spragge ("Spragge"), mentioned later in the  
context of the Treaty negotiations, began his career in the Imperial Indian Department and  
moved to the employ of the United Canadas in 1860. In 1862, he became the Deputy  
Superintendent of Indian Affairs of the United Canadas. [After 1867, he transferred to the  
Canadian Indian Affairs Department, then part of the Department of the Secretary of State,  
where he would become the Deputy Superintendent of Indian Affairs of Canada, a position he  
held as of 1873.]  
1861-1867  
 In the 1860s, Canadian interest in the West remained strong. However, public affairs  
were dominated by the American Civil War, discussions about Confederation and political  
gridlock in the United Canadas.  
 Vipond gave evidence (February 23, 2010 at p. 52) that the impetus for political  
consolidation included deadlock in the Upper Canadas, fear of American invasion (1864-1865  
was the height of the Fenian raids), British unwillingness to financially support the Empire and  
the prospect of economic opportunity from western expansion.  
   
Part 4. Euro-Canadian History 1758-1871  
19  
 In 1864, concerns escalated about protecting the West against American aggression when  
a large number of Sioux warriors fled from the United States into southern Manitoba, with the  
American cavalry in hot pursuit.  
The Lead Up To Confederation  
Negotiations re Annexation of the West  
 The evidence was uncontradicted that in British North America, there were differences of  
public opinion over the advisability of acquiring the HBC Territories. French Québec was  
ambivalent, the Maritime Provinces lukewarm to hostile. Nevertheless, Ontario pressed ahead.  
Discussions re Jurisdiction over Indians/Indian Lands  
 When the leaders of the Maritime Provinces met at Charlottetown in 1864 to discuss a  
possible maritime union, the United Canadians crashed the conference, advocating a broader  
union.  
 At the Charlottetown and Québec Conferences of 1864, the groundwork for the creation  
of the Dominion of Canada was laid.  
 Since Confederation was initially largely an Ontario initiative, the blueprint for Canada  
was based primarily on the Ontario experience. John A. Macdonald and others from Ontario  
proffered the first suggested division of powers.  
 There was general agreement that Canada would be a federal state and that Parliament  
would have jurisdiction over matters of national concern, the local legislatures over local  
matters.  
 There is no extant record of a debate or any other document that clearly explains why  
Canada took responsibility for Indians.  
 Von Gernet reviewed the papers from the Charlottetown conference and found no  
mention of Indians. He located the first mention of Indians in documents from the Québec  
Conference held about a month later, in October 1864.  
 Macdonald's papers from the Québec Conference, some of which are in evidence in this  
case, contain the handwritten words "and lands reserved for Indians" beside the word "Indians."  
From those papers it seems evident that the original resolution stating that "It shall be competent  
for the general legislature to pass laws" did not mention Indians. By the end of the conference,  
under the powers of "the general Parliament," "Indians and lands reserved for Indians" had been  
included as Number 29. (Ex. 1, Vol. 18, tab 884, "Resolution regarding the division of powers,"  
October 29, 1864; Milloy, October 15, 2009)  
 Milloy gave evidence that by the time of the Québec conference, there was general  
agreement that the annexation of Rupert's Land would take place when a confederated Canada  
     
Part 4. Euro-Canadian History 1758-1871  
20  
had been brought into existence. It was noted in the Québec Resolutions that the federal  
government would be responsible for making that happen.  
 The final details of Confederation were negotiated at conferences held in London in 1866  
and early 1867.  
The Provenance of S. 91(24)  
 Section 91(24) of the BNA Act of 1867 gave the federal government responsibility over  
"Indians and Lands reserved for Indians."  
 Because Milloy could find no direct evidence in the historical record to illuminate the  
intentions of the Fathers of Confederation as to the meaning and intent of s. 91(24) and the  
rationale for its placement, he followed a standard historical approach, contextualizing an event  
within its larger surroundings. He considered two factors to be most relevant: (1) the availability  
of the HBC Territories; and (2) the existence of an Indian policy tradition dating from the mid-  
18th century to Confederation.  
1. Availability of the HBC Territories  
 Milloy opined that when Canada contemplated its new Western Empire and turned its  
attention to security and defence issues, given the strength and arms of the western tribes and the  
sparseness of Euro-Canadian settlement in the West, the Fathers of Confederation (just like their  
Imperial predecessors) considered Indians to be vitally important for strategic and security  
reasons.  
 In addition, to convince Britain to transfer the HBC Territories to it, Canada was required  
to agree to protect the Indians who lived there. Resolution: Schedule B to the Order-in-Council  
dated June 23, 1870, admitting Rupert's Land and the North-Western Territory into the union,  
contained the following:  
… upon the transference of the territories in question to the Canadian Government, it will be the duty  
of the Government to make adequate provision for the protection of the Indian tribes whose  
interests and well-being are involved in the transfer.  
[U]pon the transference of the territories in question to the Canadian Government, the claims of the  
Indian tribes to compensation for lands required for purposes of settlement will be considered and  
settled in conformity with the equitable principles which have uniformly governed the British Crown  
in its dealings with the aborigines.  
[Emphasis added.]  
 The 1868 HBC Deed of Surrender read in part as follows:  
And claims of Indians to compensation for lands required for purposes of settlement shall be disposed  
of by the Canadian Government, and the Company shall be relieved of all responsibility in respect to  
them.  
 On October 9, 2009, Milloy gave the following historical summary with respect to the  
link between Rupert's Land and the placement of s. 91(24) at pp. 53, 58-59:  
   
Part 4. Euro-Canadian History 1758-1871  
21  
A. Boiling it down to a summary, the imperial government was worried about the defence of the  
territory, and for those reasons I explained, would not take on its administration. The Hudson's Bay  
Company wanted out of the administration ... It was expensive, and there were growing doubts that  
they were able to defend the area.  
The Canadians – and by that I mean the … united Canadians… were willing to take it on as part of  
the – of part of the development of the Confederation scheme, largely for economic reasons as well.  
And so that meant that one had to decide where it went. And the only reasonable place to put it would  
be on the federal list. There are no colonies out there, and the federal government would be then best  
placed to develop administrative structures and facilitate its development.  
As one of the central challenges to administration and the development of that territory was the  
worrisome state of First Nations people there, particularly plains people south of the Saskatchewan  
River, as they were a considerable military force. It made sense as well the that s.91(24), or the  
responsibility for Indians and lands reserved for the Indians, would also be put on the … federal list.  
And that's where you get to – they think that's how this development with respect to Rupert's Land  
and the reorganization of the economic foundation of Empire and its political ramifications of Canada  
lead you directly to placing 91(24) on the list, on the federal list, rather than in any other place in the  
Constitution.  
2. The Existence of Indian Policy Tradition  
 To establish a model for the management of Indian Affairs, the Fathers of Confederation  
looked to the long established Imperial model that had been faithfully followed in Ontario dating  
back to at least the Proclamation of 1763.  
 Milloy opined that the Fathers of Confederation understood that treaties were needed in  
the West to meet national priorities. Conciliation was crucial to nation-building.  
 When s. 91(24), the assignment of "Indians and Lands reserved for Indians" was put on  
the federal list, it was assumed as a matter of national importance that relationships with First  
Nations should be administered centrally from the top of the organizational pyramid. Milloy said  
the placement of s. 91(24) represented a continuation of direct control of Aboriginal  
administration from the top, following a tradition of insulating/separating Indians from settler  
and local legislatures for strategic reasons, a "replication of a system of protection that allowed  
an honest broker…to stand between settlers…and tribal groups."  
 Macdonald, Brown, Rose and Mackenzie (the second prime Minister) believed that the  
federal government should protect individuals and minorities against arbitrary acts by local  
governments.  
 Professor Hogg [Peter W. Hogg, Constitutional Law of Canada, 5th ed., Vol. 1. (Toronto:  
Thomson Carswell, 2007)] writes at 756:  
The main reason for section 91(24) seems to have been a concern for the protection of the Indians  
against local settlers, whose interests lay in an absence of restrictions on the expansion of European  
settlement. The idea was that the more distant level of government, the federal government, would be  
more likely to respect the Indian reserves that existed in 1867, to respect the treaties with the Indians  
that had been entered into by 1867, and generally to protect the Indians against the interests of local  
majorities.  
 
Part 4. Euro-Canadian History 1758-1871  
22  
The Federal/Provincial Relationship  
 The challenge for the Fathers of Confederation was to reconcile sovereignty with control  
over local affairs and to provide continuity with cherished Constitutional principles. (Vipond,  
February 23, 2010 at p. 55.)  
 Vipond gave evidence that the centralists and provincial autonomists had two different  
visions of the federal/provincial relationship.  
 Proponents of strong central government like Macdonald and Morris hoped to avoid the  
recent U.S. experience where a decentralized government had resulted in civil war. They wanted  
the federal Parliament to have the tools to enforce its will, including a power of disallowance.  
Section 56 of the BNA Act described the Imperial power of disallowance and s. 90 provided in  
effect that the federal government would have the same power vis-à-vis the provinces.  
 At Confederation the centralists, including Macdonald, Morris and the majority of the  
members of the Euro-Canadian elite, disagreed with the provincial autonomists with regard to  
the hierarchy of governments or, to put it differently, whether the federal government was  
superior or whether the federal government and the provincial governments were equal when  
exercising their respective jurisdictions.  
 Macdonald and Morris were of the view that the Dominion Government should be a  
superior government, and the powers of the provinces, delegated powers. The centralists wanted  
the federal government to be clearly sovereign. At the same time, they wanted local governments  
to have control over local affairs.  
 Milloy gave evidence that Macdonald's centralist theories of federalism had their roots in  
Hobbsean political theory, which rejected the idea of multiple sovereigns and posited that to  
avoid conflict between sovereigns, one sovereign should have power to enforce its will.  
Macdonald [and Morris as Nova Brittania evidences] advocated a structure of distribution of  
powers similar to that of the Imperial government: control over the colonies and the power to  
intervene in colonial affairs generally not to be exercised unless mandated by Imperial concerns.  
 Before Confederation, thinking about Canadian federalism had evolved to include a  
concept that distinct governments could serve the same Crown. The early idea of one monarch  
served by a single government had developed into the concept of multiple independent colonial  
governments with defined jurisdictions and responsibilities, drawing upon the resources of their  
own treasuries and responsible to their own electorates.  
 The provincial autonomists did not view provinces as inferior to the federal government.  
From their perspective, the provinces derived their powers from the Queen, who was as much a  
representative of a province for provincial purposes as of Canada for federal purposes. They  
advocated that the sovereign constituent, the indivisible authority, was the Queen in the Imperial  
Parliament through the BNA Act. In their view, the two levels of government in Canada were  
independent and sovereign within the spheres granted to them by the BNA Act.  
 
Part 4. Euro-Canadian History 1758-1871  
23  
 Vipond summarized their perspective on February 23, 2010 at p. 63 as follows:  
The provinces are equally capable of self-government, fully clothed, independent legislative and  
governmental bodies; that federalism requires non-interference in areas not within a government's  
jurisdiction.  
 Vipond gave evidence that the provincial autonomist's conception of relations between  
the federal government and the provincial government was that they were to be treated as if they  
were two foreign entities engaged in diplomacy. The fact that there was one Crown did not  
change the fact that they were two governments with different powers, different assets, etc.  
 While the differences in vision between the centralists and provincial autonomists existed  
and became the source of major conflict in the 1880s and 1890s, both camps recognized that  
each level of government had a legitimate role to play. Even strong provincialists such as  
Mowat, Blake and Mills recognized that provincial jurisdiction in respect of matters such as  
education and lands was not so open ended that the federal powers could not limit the provinces'  
range of action. (Vipond, February 26, 2010 at p. 63.)  
 As of 1867, three levels of government having various roles within any particular  
province were to serve the same Crown: the provincial governments, the federal government and  
in the background, the Imperial Government. The political players knew it was important to  
specify which government had jurisdiction to deal with which issues. If the Government of  
Canada made a contract with a private individual, the treasury of the Government of Canada  
would be called upon to "make good" on that contract. Government officials entering into  
contracts needed to clearly identify the government being committed to fulfill their terms  
(Saywell, April 6, 2009 at pp 61, 64-5, 67.)  
Confederation - 1867  
 Canada came into being upon Royal Assent to the British North America Act of 1867 on  
July 1, 1867.  
Other Events After Confederation Relevant to the Parties' Understanding of Canada's  
Powers and Obligations to Indians in 1873  
Establishment of a Canadian Department of Indian Affairs  
 After Confederation, many of the same ex-employees of the Imperial Indian Department  
who had transferred to the Indian Department of the United Canadas in 1860 moved to the Indian  
Department of the Dominion of Canada. Under the 1868 Department of Secretary of State Act,  
the Secretary of State became Superintendent General of Indian Affairs with responsibility for  
directing the management of Indian lands and Indians.  
 From its inception, Canada/the Canadian Indian Department retained Indian Agents to  
work with the Indians at the local level and involve themselves in every aspect of Indian life,  
including distributing presents and annuities, assisting in establishing reserves, ensuring that  
agricultural implements and provisions were provided, schools were built and teachers were  
     
Part 4. Euro-Canadian History 1758-1871  
24  
hired and monitored. They reported regularly to Ottawa on the state of each band and  
communicated instructions from Ottawa to band members.  
Other Developments  
 Chartrand gave evidence that immediately after Confederation, Canada pursued  
negotiations with Britain and the HBC for the transfer of the HBC Territories.  
 Before and from the time of transfer, there was uncertainty about the location of the  
boundary between Ontario and the HBC Territories.  
 Chartrand in his report, Ex. 60, wrote the following at pp 305-307:  
At Confederation, the Province of Ontario was recognized to have the same boundaries as the former  
Province of Upper Canada). Lands to the north of Upper and Lower Canada, and of the later Province  
of Canada, were deemed to be included within Rupert's Land, the charter territory of the Hudson's  
Bay Company. The HBC claimed that its charter bestowed title to lands extending to the height of  
land defining the Hudson and James Bay watershed. However, the exact limits of this charter territory  
had been subject to long-standing colonial disputes between England and France dating to the 17th  
century. Attempts by the colonial powers to settle competing claims to land, such as the 1713 Treaty  
of Utrecht, did not provide definitive resolutions as France continued to challenge the HBC's (and  
England's) territorial claims.  
British colonial rule after 1763 largely ignored the issue, and by the 1791 creation of Upper and  
Lower Canada, the northern and northwestern boundary of Upper Canada was simply assumed to  
correspond to the main height of land separating the upper Great Lakes watershed from the Hudson  
and James Bay watershed. This assumption was maintained with the unification of Upper and Lower  
Canada into the Province of Canada, and with the creation of the Province of Ontario in 1867.  
…
However, only a few years later, the Province of Canada would initiate historical and legal research  
and analysis challenging the long assumed validity of the HBC's charter territory claims. In 1857 the  
Commissioner of Crown Lands submitted a memorandum to the House of Assembly arguing that  
historical and legal evidence existed supporting potential rights of the former Province of Upper  
Canada to lands that were, by the mid-1850s, assumed to form part of the North-West Territories and  
under the HBC charter. The matter was referred to a Committee of the House of Commons appointed  
by Chief Justice Draper in May 1857 to conduct a formal enquiry to investigate the legal foundation  
of HBC's charter territory claims, and the extent of lands to which Indians west of Fort William had  
extinguished their title by the Robinson-Superior Treaty.  
At the time, the Province of Canada sought to challenge the interpretation of the 1670 Charter as  
conveying title to lands, and dispute the claim by the HBC that such title extended to the height of  
land defining the Hudson and James Bay watershed. While the Province of Canada did not develop a  
formal legal challenge to the HBC's claims, shortly after Confederation, the new Dominion  
government utilized the body of research and analysis compiled in the late 1850s, in its initial  
negotiations with the HBC for the transfer of Rupert's Land.  
Negotiators for the Dominion government challenged the territorial claims of the HBC to the effect  
that the southern boundary of its trading territory corresponded to the main height of land separating  
the Upper Great lakes watershed from the Hudson and James Bay watershed. As historian Morris  
Zaslow describes:  
Among the grounds raised against the Company were the arguments that Canada had  
inherited the claims of the French Crown based on the discoveries of explorers like La  
 
Part 4. Euro-Canadian History 1758-1871  
25  
Vérendrye or the establishment of posts at places like Abitibi; that the Company's charter  
did not automatically extend its territorial bounds as British sovereignty in North America  
was enlarged through the fortunes of war and diplomacy, but only through its own  
endeavours at occupying and settling territory; and that numerous acts of the British  
parliament and of the Crown subsequent to 1760 had extended and recognized the authority  
of Canada beyond the height of land.  
The Dominion Government and the HBC could not agree to the terms of the transfer, and the parties  
took their respective arguments to the British Colonial Secretary.  
[Emphasis added; references omitted.]  
 Shortly after Confederation, to facilitate the passage of settlers through Canadian territory  
between Thunder Bay and the Red River Settlement, Canada started to build a series of primitive  
roads to connect the bodies of water, including Rainy Lake, Rainy River and Lake of the Woods  
located in Treaty 3 territory. After Canada put Simon Dawson in charge of its construction, it  
became known as the Dawson Route. Over the next several years, Canada built the infrastructure  
needed, as well as steamers to ply the waterways, and carts to carry travellers and goods over the  
land portions of the Route.  
 Chartrand's report, Ex. 60, contains the following at pp. 52-53:  
Simon J. Dawson, who had been hired as a surveyor to the 1857 Hind-Gladman expedition and  
worked as a civil engineer in the Department, was placed in charge of supervising the construction of  
the main segment of route, from Fort William on Lake Superior to the Northwest Angle of the Lake  
of the Woods. This segment consisted of a 45 mile overland wagon road from present-day Thunder  
Bay to Lake Shebandowan (adjacent to but west of the Lake Superior watershed), and over 300 miles  
of navigation along a series of lakes and rivers from lower Shebandowan Lake to the Northwest  
Angle of the Lake of the Woods via Rainy Lake and Rainy River. The water travel portion of this  
segment included 11 Portages.  
[References omitted.]  
1868  
 Following Confederation, Macdonald addressed the use of the disallowance power in a  
memorandum dated 1868 that was ultimately adopted as an Order-in-Council. In it, he made it  
clear that even he believed the use of the disallowance power should be constrained/confined to  
situations where a province either exceeded its jurisdiction or interfered with a matter of interest  
to the whole Dominion. In the first decade following Confederation, for the most part it was  
used to confine the provincial governments to their jurisdictions. (Vipond, February 26, 2010,  
pp. 47-50. Also Ex. 131, "Disallowance Correspondence.")  
 Vipond gave evidence on February 26, 2010 with regard to that 1868 policy  
memorandum at pp. 46-47 as follows:  
Q. … disallowance is interesting [in] that it gives us actually an insight into the political thought  
around what is the relationship between the federal and provincial government and how should that  
be policed?  
A. That's how I've treated it.  
Q. …here we actually get an insight into the political mind?  
A. Yes.  
…
 
Part 4. Euro-Canadian History 1758-1871  
26  
Q. …in the second paragraph at page 61… the role that the federal government will play vis-à-vis  
the provinces is analogous to the role that the imperial government previously played vis-a-vis the  
individual colonists?  
A. That's the way I've described it in my work, yes, as an analogy.  
[Emphasis added.]  
 In 1868, with a view to making recommendations to ensure problem-free construction,  
Dawson met with the Ojibway around Fort Frances. On April 20, 1868, in a Report [to Ottawa]  
On The Line of Route Between Lake Superior and the Red River Settlement (Ex. 45 at p. 261),  
he described their social organization, character, customs and economic practices:  
... They are very intelligent and are extremely jealous as to their right of soil and authority over the  
country which they occupy ...  
The chief danger which could arise on coming into unfriendly relations with Indians … would be  
from having large parties of workmen in the vicinity of their encampments ... as a rule, extreme  
prudence will always have to be observed by the officers in charge of men to keep them from coming  
in contact with the Indians...  
In appearance, these Indians are tall and well formed and, in bearing, independent; sometimes, even a  
little saucy, but, in their intercourse with strangers, they are hospitable and kind. Their morality is  
said to be of a high order…  
They are, in general, keen traders, and seem to know the value of what they get and give, as well as  
any people in the world. Some of those who assemble at Rainy River for the sturgeon fishing, in  
summer, come from Red Lake in the neighbouring state of Minnesota, where they possess hunting  
grounds; and, among these latter,are some that have been parties to treaties with the United States for  
relinquishing certain tracts for settlement, for which they are now in the receipt of annual payments.  
The experience they have thus gained has rendered them expert diplomatists, as compared to Indians  
who have never had such advantages, and they have not failed to impress on their kindred and tribe,  
on Rainy River, the value of the lands which they hold on the Line of Route to Red River ...  
Any one who, in negotiating with these Indians,should suppose he had mere children to deal with,  
would find himself mistaken. In their manner of expressing themselves, indeed, they make use of a  
great deal of allegory, and their illustrations may at times appear childish enough, but, in their actual  
dealings, they are shrewd and sufficiently awake to their own interests, and, if the matter should be  
one of importance, affecting the general interests of the tribe, they neither reply to a proposition, nor  
make one themselves, until it is fully discussed and deliberated upon in Council of all the Chiefs.  
The Chiefs are fond of asking any travelers, whom they believe to be of importance, to attend a  
Grand Council...  
…
All this goes to show a certain stability of character, and the degree of importance attached to what  
they say, on such occasions, themselves, as well as to what they hear from others. The word of the  
Chiefs once passed, too, seems to be quite reliable, and this augurs well for the observance of any  
treaty that may be made with them ...  
For my own part, I would have the fullest reliance as to these Indians observing a treaty and adhering  
most strictly to all its provisions, if, in the first place, it were concluded after full discussion and after  
all its provisions were thoroughly understood by the Indians, and if, in the next, it were never  
infringed upon by the whites, who are generally the first to break through Indian treaties.  
…
From what I have said, I trust it will be seen that some sort of a treaty should be arrived at with the  
Indians. They are, as I have stated, desirous of seeing the communication opened, believing that it  
Part 4. Euro-Canadian History 1758-1871  
27  
will conduce to their advantage, and I think a treaty with them should, in the first instance, be  
confined to this one point, namely, RIGHT OF WAY. This they expressed their willingness to accord  
many years ago, but the question of relinquishing land for settlement was always taken by them en  
delibre. In this latter respect, what they are afraid of is, that settlers would interfere with the fisheries,  
from which they derive their chief means of subsistence, and I think it would, in the first instance, be  
imprudent to introduce settlement in the particular section which they occupy. The first great point is  
to get the communication opened, and the first treaty should be confined, as I have said, simply to  
right of way. By combining it with the land question, surveys of townships for settlement, reserves  
for the Indians, and so forth, complications might arise which would prove embarrassing.  
[Emphasis added.]  
1869  
 In an 1869 report (Ex. 1, Vol. 4, tab 53), Dawson wrote:  
Although the principal line of traffic at one time passed through their territory, they have for half a  
century but little intercourse with the white man. Missionaries have made no impression upon them  
and, in many respects, they have shown themselves to be less amenable to the influences of  
civilization, than Indians usually are. They, in fact, take pride in maintaining their distinctive Indian  
character, are deeply imbued with traditions of what they believe to be an honorable past history, and  
would look with disdain on any community becoming christian.  
They have a sort a government, consider themselves great braves, and occasionally send war parties  
to fight the Sioux on the plains. The international boundary line passes through their territory, and  
some of them live on the United States side and some on the British. The permanent residents,  
however, are almost entirely on the British side, those from the United States making their  
appearance in considerable numbers only in the summer, during the fishing season. The country on  
either side is in a state of nature, wild and unsettled.  
They are sufficiently organized, numerous and warlike, to be dangerous if disposed to hostility; and  
standing as they do in the gateway to the territories to the North West, it is of the highest importance  
to cultivate amicable relations with them.  
One of the first necessary steps to be taken, will be to arrive at a distinct understanding as to Right of  
Way, and have the same embodied in a formal treaty. …  
…
On the opening of the communications, last year, the chiefs of the tribe sent one of their number,  
attended by a party of his followers, to Fort William, to ascertain what was being done, and to learn  
the intentions of the Government in regard to opening the communication. No information, on the  
subject of his enquiries, could at that time be given to him, but the fact of the tribe having sent such a  
messenger, and for such as purpose, shews [shows] the deep interest which they take in the present  
movement. They would be keenly alive to any imagined slight in opening a highway, with regard to  
them, through a territory of which they believe themselves to be sole lords and masters, and to which,  
if a lengthened period of occupation can give a claim, they have unquestionably some title.  
[Emphasis added.]  
 Dawson noted that the Treaty 3 Ojibway were "very different from the timid and cringing  
creatures who are now the sole representatives of the Indian Race in the back settlements of  
Canada…." (Lovisek report, Ex. 28 at p. 33.)  
 
Part 4. Euro-Canadian History 1758-1871  
28  
The 1869 Demand Document  
 The Ojibway Chiefs the Fort Frances and the Lake of the Woods Chiefs prepared a  
demand document ("the 1869 Demands") (Ex. 4, p. 131) on January 22, 1869, which reads as  
follows:  
We, the undersigned leaders of the various bands of Indians in the vicinity of Fort Frances and the  
Lake of the Woods, will agree to make the Treaty with the Queen's Commissioners, at the following  
conditions.  
1st That every chief gets a pay of fifty dollars every year.  
2nd That every member of Council gets a pay of Twenty dollars every year.  
3rd That every first soldier of each chief gets a pay of Fifteen dollars every year.  
4th That every second soldier of each chief gets a pay of Fifteen dollars every year.  
5th That every heads of Indian men, women, and children gets a pay of $15 for the first payment and  
every subsequent year ten dollars.  
6th That every head of Indians gets a suit of clothes from the 1st Chief to the last Indian according to  
their rank every year.  
7th That every chief gets a double barrelled gun every four years, and every man gets one single barrel  
gun during the same period.  
8th That every chief gets 100 lbs of Powder, three hundred lbs of shot, flints & caps, according to the  
quantity of munitions every year.  
9th That every chief gets a yoke of oxen, plough, harrow, and utensils for cultivation every 4 years.  
10th That every chief gets ten cows and eight [sic] one bull every eight years.  
11th That every chief gets a team of Horses, Buggy and Harness every four years.  
12th That every chief gets a she and a he lamb, and one sow and one Boar every year.  
13th That every married woman gets fishing twine and cord line to make four nets every year.  
14th That every chief gets a set of carpenter's tools, pitsaws included every six years.  
15th That every chief gets one cooking stove and utensils every 4 years.  
16th That every member of the Council, first soldier & second grade soldier gets one Box stove every  
4 years.  
17th That every chief gets 20 sacks of Flour, 10 Barrels of Pork, 1 Big Chest Tea and 100 lbs sugar  
every year.  
18th That every chief gets 30 bushels of wheat, 20 bushels Peas and various kinds of Garden seeds  
every 8 years.  
19th That every chief gets one ox every year, and rations for all the Indians during the time of the  
payment each year.  
20th That all the aforesaid demands should last, if granted, for ever, that is to say during all the time  
that an Indian will be alive in this part of the country.  
For the Land Reserves of the various bands of Indians will be treated verbally from we the  
undersigned and the Queen's Commissioners (Here follow the marks of the chiefs, named below).  
Indian Demands as Terms of Treaty, January 22, 1869, Ex. 4, p. 131  
 At trial there was conflicting expert evidence as to whether the 1869 Demands were made  
in relation to a right of way or a broader cession of lands, and whether they were given to any  
representatives of the Canadian Government before they were presented (or re-presented) to the  
Treaty Commissioners on October 2, 1873 during the 1873 negotiations.  
 Von Gernet and Chartrand opined that the 1869 Demands related to a complete treaty of  
cession. They reasoned that if they did not relate to a larger area, the Ojibway would not have  
 
Part 4. Euro-Canadian History 1758-1871  
29  
asked for reserves. They opined that the 1869 Demands were not presented to representatives of  
Canada before October 2, 1873.  
 Lovisek opined that the 1869 Demands, made only by the Chiefs in the vicinity of the  
Dawson Route/Right of Way and not from throughout the whole Treaty 3 area, related to a right  
of way. She said the Ojibway were requesting reserves in the area of the right of way because  
they wanted to ensure their sturgeon fishing and garden areas were safeguarded for their own  
exclusive use.  
Progress on the Construction of the Dawson Route  
 In a report to the Minister of Public Works dated May 1, 1869, Dawson noted that with  
the aid of the Indians, a line practicable for a road from Fort Garry to the Lake of the Woods had  
been located.  
 On August 13, 1869, the Chief Engineer of Public Works reported [Ex. 1, Vol. 4, tab 59]  
to the Civil Engineer at Ottawa that that road was under construction.  
Insurrection at the Red River  
 Once it became clear that Rupert's Land and the North-West Territory would soon be  
admitted into the Dominion of Canada, Canada passed the Temporary Government of Rupert's  
Land Act, 1869. In it, William McDougall was appointed Lieutenant-Governor of the "North-  
West Territories" and instructed to familiarize himself with the situation on the ground before the  
transfer, then scheduled for December 1, 1869.  
 In October 1869, a number of Métis protesters including Louis Riel resolved to block his  
entry to Fort Garry and proclaimed the establishment of a provisional government. (Von Gernet  
report, Ex. 44, at p. 37-39; also Chartrand's report, Ex. 60 at p. 58.)  
 Chartrand's report, Ex. 60, contains the following:  
At pp. 52-53:  
…As an agreement between the Dominion government and the HBC was apparently settled and a  
transfer planned for December 1, 1869, the question of title to lands was further complicated by two  
intervening developments. First, in a speech from the throne on November 3, 1869, the Province of  
Ontario determined to launch formal inquiries into determining the true location of the northwestern  
boundaries of the province, issues that had been raised in relation to original inquiries by the Province  
of Canada in 1857 and during 1868-1869 negotiations between the Dominion government the HBC  
for the Rupert's Land transfer. Second, by 1869 the lack of recognition for Métis land and cultural  
rights in the Rupert's Land transfer negotiations had raised serious concerns among some Métis  
leaders at Red River. As the transfer appeared imminent, Louis Riel and other leaders initiated an  
armed insurrection at Red River in the fall of 1869.  
At pp 307-308:  
The settlement with respect to the transfer of title of Rupert's Land did not include a legal  
determination of the location of the HBC's southern boundary. Ontario had a clear interest in having  
this issue resolved since it had inherited the western and northern boundaries of 'Canada West' /  
Upper Canada. As Zaslow elaborates:  
   
Part 4. Euro-Canadian History 1758-1871  
30  
The impending transfer made the question of the western and northern limits of Ontario a  
timely one for the government of the new province. The Speech from the Throne of  
November 3, 1869, in the Ontario legislature mentioned the desirability of defining Ontario's  
boundary in view of the Dominion's forthcoming succession to the Hudson's Bay Company's  
estate.  
[References omitted]  
 In a letter dated December 17, 1869 to the Minister of Public Works (Ex. 4, p. 133, tab  
61], Dawson expressed concern that "the people now in insurrection at the Red River Settlement  
might endeavour to excite a feeling similar to that by which they are themselves actuated among  
the ... Indians on the Line of the Route." He recommended that Canada should station "a cautious  
and prudent agent at Fort Frances," in the hope that "keeping up a friendly intercourse with the  
Chiefs would frustrate any attempt to tamper with them" and he suggested that Pither, a former  
HBC employee who had spent many years among the Indians, be sent to Fort Frances "as soon  
as possible" to "keep up friendly relations with the Indians and disabuse their minds of any idle  
reports they might share in the meantime."  
 I note that in essence, Canada was being urged to covertly appoint Pither as an Indian  
Agent in the Treaty 3 area even before a treaty had been signed.  
1870  
 The Secretary of State and Superintendent of Indian Affairs, Joseph Howe ("Howe"),  
accepted Dawson's recommendation. On January 6, 1870, Dawson wrote Pither (Ex. 4, p. 135)  
instructing him "to establish and keep up such intercourse with the Indians who resort to that  
place [Fort Frances] as will ensure a continuance of friendly relations between them and the  
Government" and to lay the groundwork for a treaty:  
In the natural course of things a treaty must soon be made with the Indians and negotiations to that  
end will likely be entered into early next summer. In the meantime, you can ascertain what they  
particularly desire and impress upon the Chiefs that they will be liberally and fairly dealt with as the  
Indians ever have been within British Territory.  
[Emphasis added.]  
Dawson warned Pither about possible attempts by insurgents at the Red River to enlist the Treaty  
3 Ojibway to their cause:  
The point above all others on which you will have to exercise vigilance is the risk of their being  
tampered with by emissaries from the insurgents at the Red River Settlement …  
 Howe also wrote Pither on March 11, 1870 (Ex. 4, p. 136) about his "delicate and  
confidential mission," instructing him to "secure a favourable reception for the Government  
Commissioner on his arrival" and to represent the views of the Government of Canada to the  
Ojibway. He emphasized security concerns:  
The unfortunate occurrences at Fort Garry during the months of November and December past have  
led the Government to the conclusion that it was desirable that some person of experience and  
influence with the Saulteaux Indians in the neighborhood of Fort Frances should be at that place  
when the Chiefs assemble there in the Spring, in order to keep up a friendly intercourse with them  
and disabuse their minds of any idle reports they might hear as to the views and intentions of the  
Government of Canada in reference to them. [Emphasis added.]  
 
Part 4. Euro-Canadian History 1758-1871  
31  
 On April 23, 1870, Mr. Weymess Simpson, formerly an HBC trader but by then the MP  
for Algoma, wrote to Howe on April 23, 1870 (Ex. 4, p. 138), proposing that he [Simpson] be  
appointed to negotiate a right-of-way agreement with the Ojibway:  
I am aware that for some years the Indians of that part of the country have been anxious to know why  
the Government have been making roads through their lands, and knowing as I do, that this tribe have  
always been most turbulent and hard to manage, I think the time has arrived to conciliate them and  
make a treaty for the right-of-way to the North-West Territory. …  
[Emphasis added.]  
 In May 1870, Howe gave Simpson narrower instructions, i.e., to ensure that the Ojibway  
allowed Canadian troops, led by Colonel Wolseley ("Wolseley") and already on their way to  
quash the ongoing Red River rebellion, to cross the Treaty 3 territory. Howe wrote, "The  
Government have reason to believe that Mr. Pither has been entirely successful with the Indians  
that they are now very favourably disposed towards the Canadian Government."  
 When Wolseley and his troops arrived at Fort Frances a few weeks after Simpson had  
met with the Ojibway, he described meeting Crooked Neck, the principal chief of the Ojibway,  
("a hideous old fellow," "a cunning old savage"):  
… [H]e [had] refused to accept the presents that Mr. Simpson had brought for him, such as gaudy red  
shirts and coats and caps, just the thing to catch the eye of an Indian, and please his fancy. "Am I a  
pike," said he with virtuous indignation, "to be caught with such a bait as that? Shall I sell my land  
for a bit of red cloth? We will let the pale-faces pass through our country, but we will sell them none  
of our land, nor have any of them to live amongst us."  
Ex. 44, Von Gernet's report, pp 65-66:  
 Huyshe, who accompanied Wolseley, wrote the following (Ex. 1, Vol. 4, tab 104):  
Although I do not think it possible that they could ever combine in any large numbers for such a  
purpose, yet there is no doubt that 100 determined men might have inflicted tremendous loss on the  
troops with comparative impunity; for, thoroughly acquainted with the vast network of lakes, they  
could have fired on the boats as they passed through narrow channels, or blocked up portages, and  
done much mischief in a variety of ways, while to have attempted to pursue them through the woods  
and lakes would have been madness. They move about in the neatest possible little birchbark canoes,  
just large enough to hold three men, and so light as to be portaged by one man with ease for long  
distances.  
 In his report (Ex. 4, p. 145) about that June meeting [not written until August 19, 1870],  
Simpson made a number of pejorative comments about the Ojibway. He noted they had resisted  
efforts to Christianize or "civilize" them, and had maintained their way of life. They were quite  
"incapable of understanding gratitude." He emphasized they posed a real security threat:  
By the night of the 19th about 1500 had collected (that is men women and children) … These people  
if ill used or provoked would become a most serious bar to the settlement of the North West and  
could prevent any but strongly armed parties from going through their lands.  
[Emphasis added.]  
He theorized that the Métis and Indians at the Red River had been tampering with the Ojibway:  
However I found they would not work and would not act as guides to the Troops. The Half-Breeds &  
Indians of Red River had been tampering with them telling them that the Troops were going to the  
Part 4. Euro-Canadian History 1758-1871  
32  
Settlement to take their lands from them by force & advising the Rainy Lake Indians not to assist the  
soldiers make any treaty or receive any presents this year.  
 In his report, Ex. 60, Chartrand noted that Simpson in his report to Howe (Ex. 4 at pp.  
145-146) had presented a verbatim or near verbatim quote of the Head Chief:  
The head chief said "I do not intend to try and stop the Soldiers from passing through my Lands on  
their way to Red River, but I expect a present and if Mr. Dawson is to make roads through our  
country I expect to be paid for the right of way. The surveyors burn our woods and we know that  
when they once come settlers will follow. We have consulted and have come to the determination of  
asking the Government for the following, that is, $10[.00] per head each man woman and child per  
annum, to last as long as the sun shines and a present of a 10 bags-- 50 Bls flour 7 half barrels pork or  
lard 2 cases tea 2 cases tobacco, to be divided as [at] a feast at the time of the annual payment of  
$10.00 per head. That we expect an answer to our demand sent to Mr. Pither during the winter,  
so that we may know how to act and when to assemble for the payment. For this we are willing  
to allow the Queen's subjects the right to pass through our lands to build and run steamers,  
build canals and railroads, and to take up sufficient land for building for Government use, but  
we will not allow farmers [to settle] on our lands. We want to see how the Red River Indians will  
be settled with, and whether the soldiers will take away their lands, we will not take your presents,  
they are a bait, and if we take them you will say we are bound to you…" [Emphasis added.]  
 Simpson advised the Ojibway that they were demanding too much, an amount he thought  
was sufficient to pay for their lands in full, not to pay for a mere right of way.  
 Chartrand's report, Ex. 60, contains the following at p. 93:  
By 1870, following two years' experience with the construction of an immigrant travel route to Red  
River, the Ojibway understood that Simon Dawson was directly responsible for its construction.  
Furthermore, the Chief who addressed Wemyss Simpson at Fort Frances in June that year, indicated  
that he expected that some lands along the Dawson route would be required "for Government use".  
The terms presented for a permanent right-of-way agreement were also understood to being presented  
to this "government". In documents alluding to the Chief's address, the specific identity of this  
government is not explicitly detailed: available records do not allude to the Chief as referring  
explicitly to a "Dominion government", but instead document references to a generic government.  
 After the Red River insurgency was resolved, the Northwest Territories and Rupert's  
Land were finally transferred to Canada effective July 15, 1870. The Manitoba Act came into  
effect the same day. (Von Gernet's report, Ex. 44, at p. 37-39.)  
 Chartrand in his report, Ex. 60, wrote the following at pp 307-308  
The resolution of the Red River rebellion included a negotiated settlement for the creation of the  
Province of Manitoba, within a land mass that continued to be officially assumed as forming part of  
the North-West Territories. The original boundaries of Manitoba comprised a relatively small area,  
centred around the Red River settlement. As a post-Confederation creation of the Dominion  
government, the Province of Manitoba was not deemed to have the same constitutional status as the  
four founding provinces. One of the key differences between Manitoba and the original provinces  
created by the 1867 BNA Act concerned jurisdiction over natural resources:  
While Manitoba became technically a province, it received a kind of special status in  
reverse. Land and other natural resources remained under the control of central authorities.  
Canada could thus develop the North-West in an imperial way...  
[References omitted.]  
Part 4. Euro-Canadian History 1758-1871  
33  
 Unlike the original four provinces, upon becoming a province and until 1930, Manitoba  
did not stand to receive the benefit of revenue from the sale of land within its boundaries. The  
federal government retained administration and control of Crown lands in Manitoba,  
Saskatchewan and Alberta until 1930, when they were granted powers equivalent to those  
enjoyed from 1867 by the original provinces under s. 109.  
 After the July 15, 1870 transfer, the HBC retained its fur trading posts and continued to  
do business with the Ojibway in the Treaty 3 area.  
 As noted earlier, when Canada acquired Rupert's Land and the Northwest Territories, the  
location of the border between the Territories and Ontario remained uncertain. The extent of the  
HBC lands had never been tested in court. Had HBC's claims that Rupert's Land extended to the  
height of land/sources of all rivers flowing into Hudson's Bay been accepted, Ontario would have  
been confined to the St. Lawrence-Great Lakes drainage basin (Saywell report, pp. 7 and 12.)  
However, Ontario was claiming that the extent of the HBC Territories was more limited and that  
its western boundary was located as far west as the forks of the Saskatchewan River.  
 The portion of the Treaty 3 lands subject to the Boundary Dispute/the Disputed Territory  
was west of the height of land.  
 In the summer of 1870, Adams G. Archibald ("Archibald") was appointed Lieutenant-  
Governor of Manitoba. On August 2, 1870, Canada passed an Order-in-Council approving  
preliminary instructions (Ex. 4, p. 143) addressed to Archibald, including the following:  
You will also make a full report upon the state of the Indian Tribes now in the Province, their  
numbers, wants and claims… [to] be accompanied by any suggestions you may desire to offer with  
reference to their protection and to the improvement of their condition.  
[Emphasis added.]  
 On November 12, 1870, Archibald described "the land between" in a letter (Ex. 1, Vol. 4,  
tab 100) to Joseph Howe:  
As regards the land, my journey to this Country has enabled me to form a judgment for myself and I  
have no hesitation, in declaring that I have never passed through a country so unmistakably stamped  
by the hand of God with a destiny of perpetual sterility.  
From the Shebandowan to the North West Angle of the Lake of the Woods the general character of  
the Country is a succession of rocky hills covered, when covered at all, with the shallowest possible  
soil, seldom exceeding two or three inches in depth. It was difficult to find anywhere a place where  
one could drive a tent peg, and I have been repeatedly foiled in finding in my camping ground  
enough soil to place a stick upright for holding a candle to read by. The wildest imagination can  
never conceive this to be a country fitted for settlement, or in which a population could be sustained  
by the produce of the Soil. The wood on these hills is of poor quality and of small dimensions and  
could not be utilized for any purpose.  
The only exception to the general desolation of this region is on the Rainy River, where a narrow belt  
described as of two or three miles in width skirts each side of the River.  
The river banks indicate a soil much like that of the prairie ground here and the timber growing on it  
is of better size than any to be found in the country to the east. But unfortunately these strips only  
extend a few miles, and that on the southern side of the river is American territory.  
Part 4. Euro-Canadian History 1758-1871  
34  
So far therefore, as the question of the value of Indian claims depends on the character of the soil  
between the North West Angle of the Lake of the Woods and the Eastern shore of the Shebandowan,  
I should not consider the fee simple of the entire Country, for agricultural purposes, worth as much as  
100 acres of the prairie of Red River.  
[Emphasis added.]  
 In the fall of 1870, Dawson had several meetings with the Chiefs and leading men of the  
Ojibway at the Lake of the Woods and Fort Frances. On December 19, 1870, in a letter to  
Langevin, the Minister of Public Works (Ex. 1, Vol. 4, tab 103), he wrote:  
As I returned from Red River last fall, I had several meetings with the Chiefs and leading men of the  
tribe at the Lake of the Woods and Fort Frances. They expressed themselves as being quite open to  
treat with the Dominion Government for right of way, or the cession of their lands, under  
conditions to be agreed on. At Fort Frances, the principal chief, who no doubt gave expression to the  
sentiments of the whole tribe, for the matters of which he spoke had been much discussed among  
them, remarked that the Indians were not averse to entering into negotiations with the Dominion  
Government. We want, he said, much that the White man has to give, and the White man on his part  
wants roads and land, when we meet next summer you must be prepared to tell us where your roads  
are to pass, and what lands you require.  
[Emphasis added.]  
On the assumption "that laws and regulations… in operation in respect to Indians … will be  
made applicable in this case and that these Indians will be treated as minors under the care and  
protection of the Government," Dawson recommended:  
that certain areas [in the area of the right-of-way] "which they have long occupied which are  
necessary to them in carrying on their fishing and gardening such as the Islands in the Lake of the  
Woods and their clearings at the Rapids on Rainy River …be set aside for their sole and exclusive  
use, with the reservation that such sections as might be required for public works may, at any time, be  
apportioned by the Government." [Also cited in Chartrand's report, Ex. 60, at p. 178.]  
1871  
 The winter of 1870-71 was harsh. After Dawson suggested that the Canadian government  
should provide assistance to the Ojibway, Archibald despatched James McKay (who later  
figured prominently in the 1873 negotiations) to the Treaty 3 area.  
 McKay was a Red River Métis, the son of an Indian or Métis mother and a Euro-  
Canadian father. By reason of his background and Euro-Canadian education, he was able to act  
as a cultural intermediary between the Canadians and the Ojibway. At the time of the 1873  
negotiations, he was a member of the Executive Council of the Legislature of Manitoba and a  
member of Morris' entourage. (Chartrand, December 15, 2009 at pp. 50-51.)  
 Lovisek's report, Ex. 28, contains the following at p. 51:  
James McKay was of Cree, Scottish and French-Canadian ancestry who spoke English, French, Cree,  
Saulteaux and Sioux. He was president of the Manitoba Executive Council from 1871 to 1874, and a  
member of the Manitoba Legislative Council until the Upper House was abolished in 1876, and was  
the Speaker until 1874. McKay was later the Minister of Agriculture in the provincial government of  
Robert Davis from 1874 to 1878, and represented the Lake Manitoba district in the Legislative  
 
Part 4. Euro-Canadian History 1758-1871  
35  
Assembly in 1877 and 1878. McKay would visit the Saulteaux at the Lake of the Woods region three  
times during the winter previous to 1873 treaty negotiations to encourage support for the treaty.  
Footnotes omitted.  
 On February 18, 1871, the Manitoban newspaper reported (Ex. 1, Vol. 5, tab 114) as  
follows:  
The Hon. James McKay returned from Lake of the Woods on the evening of the 13th [of February]. A  
good cart road to NorthWest Angle had been so nearly finished when he left, that by next week it  
would be complete ... Among the workmen at present doing good service on the road, are a number  
of Indians from the vicinity of Lake of the Woods, who were, very wisely, given employment at Mr.  
McKay's suggestion …  
 Lovisek's report, Ex. 28, contains the following at pp 50-51:  
On March 7, 1871 Archibald informed Howe that his assistant, Métis trader James McKay,  
recommended that the Government should tell the Indians of their plan to open communications on  
the Dawson Route and send a commissioner to deal with their claims. Unless this was done, the  
Indians would prevent passage of the mail and travelers. Archibald authorized McKay to inform the  
Indians that they would receive a reply from the Government in the spring. In an earlier  
correspondence of February 28, 1871, Archibald described McKay as: "better acquainted with the  
habits and wishes of the Indians of that region than any other person I am acquainted with, except,  
perhaps, Mr. Pither, of Fort Frances…"  
Footnotes omitted.  
 During the winter and early spring of 1871, Archibald had been communicating with  
Pither about conditions on the ground. In March of 1871, Archibald recommended that Pither be  
formally retained as the Indian Agent at the Lake of the Woods. Since early 1870, Pither had  
been serving "confidentially" as an ad hoc Indian Agent.  
 Chartrand opined that by the spring of 1871, the Treaty 3 Ojibway were likely aware that  
the conflict at the Red River had been peacefully resolved.  
 Archibald sent a letter to Howe dated April 7, 1871, mentioning that Pither was of the  
view that the Ojibway would surrender the whole country for much the same price they would  
ask for a right of way. [Chartrand gave evidence in effect that Pither's impression must have been  
mistaken. He did not connect Pither's impression to knowledge of the 1869 Demands.]  
 On April 19, 1871, based on Archibald's intelligence, Howe prepared a report to the Privy  
Council recommending offering treaty terms under which the Ojibway would "retain what they  
desired in Reserves at certain localities where they fish for sturgeon." He wrote as follows:  
… it is thought [they would] be willing to surrender, for a certain annual payment, their lands to the  
Crown. The American Indians to the south of them surrendered their lands to the Government of the  
United States for an annual payment which has been stated to the undersigned (but not on authority)  
to amount to ten dollars per head for each man, woman and child, of which six dollars is paid in  
goods and four in money.  
… It is also further submitted that it will add much to the usefulness of the Commissioner among[st]  
the Indian tribes if he be allowed to wear a[n] uniform without which they are slow to believe that  
anyone having the Queen's Authority can be sent to treat with them.  
Part 4. Euro-Canadian History 1758-1871  
36  
 The Dominion Government appointed Simpson (and later Dawson and Pither) to  
negotiate a treaty of cession. On May 6, 1871, Howe instructed Simpson (Ex. 1, Vol. 5, tab 131)  
as follows:  
The number of Indians assumed to inhabit this tract of country, is estimated at about 2,500, and the  
maximum amount which you are authorized to give, is twelve dollars per annum for a family of five,  
with a discretionary power to add small sums in addition when the families exceed that number. … It  
is desirable that you should be at Fort Frances not later than the middle of June, as the Indians usually  
assemble there about that time. …  
 Details of the 1871 Treaty Negotiations are included in Section 5 of these Reasons.  
 On July 29, 1871, the Manitoban newspaper reported (Ex. 1, Vol. 5, tab 146) that the  
road at the eastern end of the Dawson Route from Prince Arthur's Landing to Shebandowan was:  
… in splendid order … and two other large steamers …for Rainy River and Lake of the Woods and  
the other for Rainy Lake, and by next summer, beyond [illegible] will be running at the navigable  
sections, while … a cheap …journey to Manitoba will be within reach of all… From the North-West  
Angle of the Lake of the Woods to Fort Garry, the road is now passable for wheeled vehicles and is  
said to be in fair order except about 3 ___ near the North West Angle… The roads leading to the Red  
River Valley are literally covered with emigrant wagons …  
 Chartrand in his report, Ex. 60, wrote the following:  
At pp. 307-310:  
7.1.2 Attempt at Negotiation (1871-1872)  
…
By the summer of 1871, as initial treaty negotiations with Ojibway at Fort Frances were undertaken,  
the immigrant travel route from Lake Superior to Red River was officially opened. From Ontario's  
perspective, the opening of the Dawson Route and the flow of immigrants to the prairies required that  
immediate attention be given to settle, in law and with finality, the question of the location of its  
boundaries.  
As the route opened in the summer of 1871, the Ontario Government approached Dominion  
authorities with the suggestion that a clear and final delineation of its western and northern  
boundaries was now advisable.  
On July 14, 1871, Premier J.S. Macdonald appealed for action, alleging that "the  
thoroughfare over which numbers of emigrants and others are making their way from  
Thunder Bay towards Red River requires that they should be protected en route, and the  
jurisdiction to which authority of this Government extends ought to be clearly defined in  
view of that end."  
…
At p. 312:  
…The two governments were under steadily growing pressure to reach an agreement by the end of  
1871. As Armstrong points out, by December:  
... the importance of reaching an understanding had already been pointed up by applications  
from private parties for mining licences west of Lake Superior.  
One of these mining license applications may have concerned a proposed site at Shebandowan Lake,  
where miners were confronted and expelled by local Ojibway Chief Blackstone in the spring of 1872.  
[References omitted.]  
Part 4. Euro-Canadian History 1758-1871  
37  
 A December 29, 1871 Ontario Order in Council (Ex. 1, Vol. 5, tab 159) included the  
following:  
The Committee of Council have had under consideration the communication of the Secretary of State  
dated 30th November 1871 on the subject of the granting of Mining Licenses and Patents for lands in  
the neighborhood of Lake Shebandowan and in places about the Head of Lake Superior – and which  
with the copy of a report of the Committee of the Privy Council of Canada has been referred for  
Report to the Honorable Commissioner of Crown Lands.  
The Committee advise that pending such reference no patents or mining licenses issue from Lake  
Shebandowan westward -  
 Lovisek's report, Ex. 28, contains the following at pp. 62-63:  
The Ontario Order in Council referred to two documents: a communication of the Secretary of State  
dated November 30, 1871; and a report of the committee of the Privy Council of Canada… Howe  
informed Howland that he was transmitting a copy of letter from the Governor General in Council on  
the subject of granting mining licenses and patents for lands in the neighbourhood of Shebandowan  
Lake and in locations about the head of Lake Superior. Howe requested that Howland "communicate  
their views thereon for the information of His Excellency in Council."  
1872  
 Chartrand's report Ex. 60, contains the following  
At pp. 312-313  
Despite pressure from increasing immigrant travels along the Dawson Route and applications for  
licenses and patents to land by development interests, the Dominion and Ontario Commissioners  
remained deadlocked by the beginning of 1872. On March 26th, Ontario notified the Dominion that  
negotiations had reached an impasse and could not proceed as the different viewpoints on the western  
boundary 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 boundary  
location, beginning at a point west of Lake of the Woods where the international boundary with the  
United 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 their  
arguments to a Judicial Committee of the Privy Council hearing (hereafter 'JCPC'). The  
recommendation 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 the  
administration of lands in the disputed territory pending a final legal decision of the JCPC on the  
question 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 a  
new liberal government headed by Oliver Mowat, which soon embarked on a political platform to  
strengthen provincial rights and provincial governmental powers in the still relatively new  
constitutional framework of the Dominion. John A. Macdonald, a conservative, was staunchly  
opposed to this platform and would struggle to develop and maintain centralized power at the Federal  
level, at the expense of provinces. As Macdonald biographers J.K. Johnson and P.B. Waits note, at  
Confederation in Macdonald's view:  
 
Part 4. Euro-Canadian History 1758-1871  
38  
It was not just that a provincial government was to be "a subordinate legislature". The  
provincial governments, he maintained, had been made fatally weak and were ultimately to  
cease to exist. He envisaged a Canada with one government and , as nearly as possible, one  
homogeneous population sharing common institutions and characteristics.  
[References omitted.]  
 Saywell opined that by 1872, it was well known by the political actors of the day that  
there was an active dispute between Ontario and Canada over where the boundaries were  
located. Saywell said that in 1873 it was likely that all three Commissioners were aware of the  
Boundary Dispute. (Saywell, April 7 and 9, 2009)  
5. THE OJIBWAY PERSPECTIVE - OJIBWAY HISTORY  
 As mentioned earlier, most of the extant documentation available to this Court is written  
in English by Euro-Canadians and obviously reflects the Euro-Canadian perspective.  
 In considering mutual intention in 1873, it would not be acceptable, without more, to  
uncritically adopt Euro-Canadian interpretations of Ojibway perception contained in the  
contemporaneous documentation. Since the Ojibway could not speak or write English, and since  
the memory record of the negotiations taken by an Ojibway recorder has not survived, expert  
historical, ethno-historical and anthropological evidence was called to assist this Court in  
gleaning the Aboriginal understandings, intentions, interests and objectives: in short, the  
Ojibway perspective at the time Treaty 3 was entered into.  
 Dr. Joan Lovisek ("Lovisek") was called to give expert evidence by counsel for the  
Plaintiffs. She was qualified as an anthropologist with expertise about the Aboriginal peoples of  
Canada, especially the Ojibway of the Boundary Waters Region, and with respect to the  
application of the ethno-historical method. She provided an ethnographic overview of the way of  
life of the Treaty 3 Ojibway, an ethno-historical analysis of the negotiations and of the Ojibway  
understanding of Treaty 3 in 1873. She also gave interpretive evidence on developments after the  
Treaty was signed, alleged by the Defendants to be relevant to that understanding.  
 Dr. Alexander von Gernet ("Von Gernet") was called to give expert evidence by counsel  
for Ontario. His speciality is ethno-history and archaeology of Aboriginal peoples in North  
America. Von Gernet was qualified as "an anthropologist and ethno-historian specializing in the  
use and analysis of archaeological evidence, written documentation and oral traditions to  
reconstruct the past cultures of Aboriginal peoples as well as the history of contact between  
Aboriginal 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, focused  
generally on the Aboriginal understanding of the raison d'être of treaty making. He also offered  
an historical opinion on the background and purpose of s. 91(24) in reply to Milloy's evidence.  
 Mr. J.P. Chartrand ("Chartrand") was called to give expert evidence by counsel for  
Ontario. He was qualified as an expert anthropologist and ethno-historian with particular  
experience regarding the Algonquian peoples of Ontario, including the Ojibway. He provided an  
 
Part 5. The Ojibway Perspective - Ojibway History  
39  
ethnographic analysis of the documentary record of the Treaty 3 negotiations and the dealings of  
the Ojibway with Euro-Canadians.  
The Life and Culture of the Ojibway/European Contact to 1871  
 Lovisek's uncontradicted evidence was that the Ojibway were well-established in the area  
around the Lake of the Woods well before 1873, as shown on a series of maps published by  
anthropologist Dr. C. Bishop entitled "Ojibway Distribution Maps 1649 to 1775."  
 She described Ojibway society, culture, values and understanding of the 1873 Treaty over  
many days of evidence.  
Social Structure  
 Basic Ojibway social units were clans, named after animals and fish. Because clan  
members did not marry within their own clan, each clan included those who had been born into  
other clans.  
Governance  
 The basic Ojibway political unit was the band.  
 The Grand Council of Chiefs and leading men made decisions on important matters,  
including the allocation of resources to be harvested, matters of war, HBC relations and treaty  
deliberations.  
 The Ojibway lived according to precepts they believed had come to them from the Great  
Spirit. They ascribed to egalitarian principles. They valued consensus, both at the band and  
Grand Council levels. They had no top-down authority as in European societies. Although the  
Chiefs and leading men had great powers of persuasion and their advice was usually taken, in the  
event of a failure to reach consensus, members of Grand Council did not have the authority to  
enforce their will. That would have been unacceptable in Ojibway culture.  
 Dawson reported in 1868 (Ex. 1, Vol. 4, tab 53) that on important matters affecting  
general interests, "they neither reply to a proposition nor make one themselves, until it is fully  
discussed and deliberated upon in Council by all the Chiefs…"  
Religion  
 The Ojibway believed, not in a sky God, but in an underwater God. They followed rules  
provided to them by the Great Spirit. They believed that their shamans could engage with the  
spirits of various objects, animate and inanimate. (Lovisek, October 23, 2009.)  
 By 1857, when the Treaty 3 Ojibway came into contact with the Palliser and Hind  
expeditions mentioned earlier, they had already rejected Christianity. Lovisek's evidence on  
October 20, 2009 includes the following:  
       
Part 5. The Ojibway Perspective - Ojibway History  
40  
Q. And can you give me a sense of what the Ojibway reaction… in the Boundary Waters area … to  
the arrival of Christianity was?  
A. …The Ojibway, according to the missionary records that we have, engaged in almost  
philosophical studies with these missionaries, but they rejected Christianity They felt that the  
Midewiwin was their religion and they didn't need another ...  
There are descriptions of when I think Peter Jacobs tried to build a church … the Ojibway would just  
take the boards down.  
But given the culture of the Ojibway and their particular form of etiquette, the Ojibway did not repel  
the missionaries from their area forcibly. They simply used rather polite language. I can recall, for  
example, one expression being quoted, "We gently bar the door against you."  
This …led the missionaries [to leave] the area and …call [it]… "the headquarters of  
Heathenism" …  
…
Q. And did the resistance to the arrival of Christianly continue to the early 1870s?  
A. Yes. …  
 In his report, Ex. 60, Chartrand at p. 38 quoted ethno-historians Waisberg and Holzkamm  
as follows:  
After a decade of discussion with Catholic and Methodist missionaries, the Grand Council proscribed  
Christianity in 1849, forbidding a planned mission station and school on the Rainy River; a warning  
was issued that an attempt to build would be met by soldiers who would dismantle any structures.  
The Seasonal Round  
 From season to season, the Ojibway moved from area to area, travelling by birch bark  
canoe in summer, snow shoe in winter. They gathered resources for their sustenance whenever  
and wherever they were available.  
 In a letter to the Minister of Public Works dated December 19, 1870 [Ex. 1, Vol. 4, tab  
103], to which I have earlier referred in other respects in the section on Euro-Canadian  
perspective, Dawson, anticipating that after the Treaty was made, the Ojibway would be treated  
as minors and that they would come under the care of the Dominion Government, provided a  
detailed description of their habits and means of obtaining their subsistence:  
In spring, as the navigation opens, the Indians leave their hunting grounds, and betake themselves to  
the Lakes and Rivers and, as the fish literally swarm in these inland waters, in the early part of  
Summer, they then have no difficulty in obtaining food, and the means of communication being easy  
to their light canoes, they can congregate in considerable numbers. Rainy River is the Chief resort,  
and it is there that their Councils are held, and their Feasts celebrated, but Rainy River, although the  
Sturgeon abound in its waters, cannot support the whole tribe, and the number which assemble there  
is generally limited to 600 or a thousand people, including men, women and children. Last summer,  
however, the number was greater than usual, there having been at one time full 1500 people in the  
vicinity of Fort Frances.  
…
… early in Summer, the grand occupation is fishing, and this is to them the happiest season of the  
year, as they have then an opportunity of uniting after a long winter of isolation. Food is abundant  
and the time passes pleasantly under circumstances of peculiar fascination to the Savage. With his  
gun in readiness for the wild fowl, and his spear for the fish, he can, with little labour, secure enough  
for his immediate wants, and the future troubles him not. The produce of the winter's hunt affords  
him the means of renovating his garments and bedecking himself to his tastes; marriages and dances  
are the order of the day with the young, and the old and experienced meet in Council to deliberate on  
 
Part 5. The Ojibway Perspective - Ojibway History  
41  
the affairs of the Community, while matrons with some regard to the future, dry the flesh of the  
sturgeon in the sun, and store it past a day of want.  
The fishing season lasts til the rivers began to fall, in the beginning of July, and the busy season  
commences, numbers then proceed to sandy plains, or rocky islets, where blueberries are in such  
abundance. These the women and children gather in great quantities and dry in the sun, or compress  
into cakes which they store past for future use; but a still more important harvest than that of berries  
soon waits them, and the whole tribe sets off for the rice fields.  
In certain parts of the Lake of the Woods, and on the upper reaches of the Winnipeg, the water  
spreads out into vast lagoons or shallow marshes, and in these the wild rice grows up from the bottom  
and rises high over the water, covering extensive areas ... When this crop is ripe,the canoes are  
perfectly watertight and pushed at will through the standing rice, the method of securing it being to  
bend it over the gunwale and thresh the ears out with sticks, the grain falling on mats prepared to  
receive it in the bottom of the canoe; meantime the harvest is disputed by other gleaners in the shape  
of vast flocks of aquatic fowl, and of these the Indians can easily secure all that they can consume.  
At the time of the rice harvest, the authority and patience of the Chiefs are put to the test, in deciding  
disputed claims and meting out justice to all ...  
It may be maintained that the rice is not always a sure crop. If the water should be too high, it in a  
measure fails, and even when it promises well, if heavy rains and strong gales occur when it is  
ripening, it is beaten down to the water and rendered valueless, and the moment it begins to ripen the  
wild fowl attack it, sometimes in such numbers as to impair the harvest.  
Besides the resources as far enumerated, the Indians have crops other than those which nature  
unaided produces. When the first French explorers came among them they found them growing  
maize on the banks of the Rainy River, and on the islands of the Lake of the Woods. Two centuries  
have since elapsed and Indian corn is still grown in the little gardens which produced it then,  
although not to the same extent. But the Indians have now added to the growth of maize, the culture  
of potatoes and this at least shows some taste for farming operations, which if properly encouraged,  
might lead to important results.  
When the rice harvest is gathered, and autumn approaching, the Indians having provided themselves  
with ammunition, and such articles of clothing as they can get at the trading posts, set out for their  
hunting grounds, in single families, and are once more separated, not to meet again until the  
following summer. …  
Communication and Language  
 In 1873 [and until after European education became commonplace], the Treaty 3  
Ojibway could neither speak English nor read or write in Ojibwe. Their communication was  
entirely oral. They were innumerate.  
 Dawson commented (Ex. 1, Vol. 4, tab 53) on their ability to remember details of what  
had been said:  
At these gatherings [Grand Council meetings] it is necessary to observe extreme caution in what is  
said, and, although they have no means of writing, there are always those present; charged to keep  
every word in mind. As an instance of the manner in which records are in this way kept, without  
writing, I may mention that, on one occasion, at Fort Frances, the principal of a Chief of the tribe  
commenced an oration, by repeating almost verbatim, what I had said to him two years previously ...  
 
Part 5. The Ojibway Perspective - Ojibway History  
42  
 Prior to the making of the Treaty and for some time thereafter, communication between  
the Ojibway and Euro-Canadians was often facilitated by Métis who spoke both Ojibwe and  
English or Ojibwe and French.  
European Contact  
 Chartrand gave evidence that compared to Aboriginal groups to the east and west, the  
nature of the Treaty 3 landscape had insulated the Treaty 3 Ojibway from regular Euro-Canadian  
contact. Until the arrival of the Palliser and Hind Expeditions, their relationship with Euro-  
Canadians had for all intents and purposes been limited to contact with fur traders. At the time of  
the 1873 Treaty negotiations, the HBC had trading posts at Fort Frances [on the Rainy River near  
Rainy Lake] and at Rat Portage [on the Lake of the Woods.]  
The Contact with Palliser and Hind Expeditions  
Palliser Expedition  
 On July 1, 1857, on behalf of the British expedition, Palliser recorded (Ex. 1, Vol. 3, tab  
44) that when he met with about 200 Ojibway in the neighbourhood of the HBC post at Fort  
Frances, a number of them pressed forward to shake hands, in "such a manner as to leave it  
doubtful whether the honour was done to us or by us:"  
An old chief spoke. "Perhaps," said he, "You wonder who I am that I should address you. My arms  
extend far back into time; my father and his father were the chiefs of this once mighty tribe. Their  
graves are in our lands ... All around me I see the smoke of the pale faces to ascend; but my territories  
I will never part with; they shall be my poor children's hunting fields when I am dead. .. You are our  
equals, so do not deceive us, but inform us of the true reason for your visit and whither you are about  
to proceed from here."  
 The extent of the Ojibway information about events occurring elsewhere was remarkable.  
I have already mentioned hearings in Britain about the renewal of the HBC licenses and the  
possible transfer of the HBC Territories to Canada. Palliser reported that the old Chief said: "I  
want you to declare to us truthfully what the great Queen of your country intends to do to us  
when she will take the country from the fur company's people."  
 Palliser represented (Ex. 1, Vol. 3, tab 44):  
We … were only passing through their country on our route to much further lands … if any body of  
people should wrest their lands from them, our great Queen would send her soldiers to drive those  
people back, and would restore their lands to them again.  
… I told him confidently that if he did not wish to part with his lands, and also if he and his people  
behaved as always they had done, that is, quietly and peaceably, with the white faces, I would assure  
him that The Queen would never send soldiers to deprive them of their lands by force.  
Hind Expedition  
 In July-August 1857, when the Hind expedition travelled from Canada West, some of its  
members did not follow the classic fur trade route through the Treaty 3 territory. The Ojibway  
stopped and questioned them about their activities, including the taking of rock and botanical  
       
Part 5. The Ojibway Perspective - Ojibway History  
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samples, and then directed them to take the main route. (Henry Hind, Ex. 1, Vol. 3, tab 42; Ex.  
45 at p. 250.)  
 Chartrand noted that while the Ojibway did not have Euro-Canadian concepts of buying  
or selling land, comments they made during the Palliser, Hind [and Wolseley] expeditions about  
selling land reflected their ability to engage, to a limited extent, in cross-cultural communication.  
At the same time, the Ojibway emphasized that they were refusing to engage in similar practices.  
Relations and Contacts with Other Ojibway  
American Ojibway  
 Von Gernet, Chartrand and Lovisek all opined that by reason of their social, cultural and  
kinship ties, the Ojibway were aware of the experiences of their Chippewa kin who lived in  
Minnesota just south of the U.S.-Canada border/the "Medicine line."  
 I have already mentioned Dawson's observation made in 1868 (Ex. 1, Vol. 4, tab 53), five  
years after the conclusion of the Old Crossing Treaty between their American kin and the United  
States government, as follows:  
Some of those who assemble at Rainy River for the sturgeon fishing, in summer, come from Red  
Lake, in the neighbouring State of Minnesota, where they possess hunting grounds; and, among these  
latter, are some who have been parties to treaties with the United States for relinquishing certain  
tracts for settlement, for which they are now in the receipt of annual payments. The experience they  
have thus gained, has rendered them expert diplomatists, as compared to Indians who have never had  
such advantages, and they have not failed to impress on their kindred and tribe, on Rainy River, the  
value of the lands which they hold on the line of route to Red River.  
(Ex. 35, Old Crossing Treaty with the Red Lake and Pembina Bands of Chippewa, 1863-1864;  
Lovisek, November 17, 2009 at p.56; Von Gernet, December 3, 2009 at pp. 126; See also Chartrand  
report, Ex. 60, at pp 34 and 36.)  
 During the Old Crossing negotiations, Commissioner Ramsay advised their American  
relatives that the United States government was only interested in the land for the purpose of  
obtaining a right of way and he proposed a low price. He hoped they would propose a higher  
price for a broader cession. In the discussion that followed, Ramsay assured them about their  
traditional harvesting activities. Von Gernet's cross-examination on December 4, 2009 includes  
the following at pp. 157-160:  
Q. But then we go on and read what he says -- this is Ramsey speaking, correct?  
A. Yes.  
Q. (Reading):  
"When a man sells his horse, he loses the use of him, and has to do without a horse or buy another;  
but in this case we pay them the value of the horse, and then give them back the horse, to use as much  
as they choose. So we buy their land, and then permit them to use it as heretofore, to hunt for game  
in the woods and prairies, and to fish in the streams. So that they lose nothing whatever by the  
arrangement which they now possess, while they will gain many things of great value to them which  
they do not now have."  
[Emphasis added.]  
 Von Gernet agreed (December 7, 2009) that Ramsey was attempting to assuage their  
concerns about the loss of their traditional livelihood in the event they entered into the treaty.  
   
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44  
While he characterized the Old Crossing Treaty as a sale of land, he ultimately agreed on  
December 7, 2009 that the surrender was not presented as the surrender of traditional harvesting  
rights:  
And in this particular …instance, I think the Ojibway would have appreciated that, yes, they're not  
losing their hunting and gathering rights because Commissioner Ramsey keeps saying that, he  
reiterates it several times. He's saying, you know, don't worry, you know, things are going to stay the  
way that you're used to seeing them.  
Ojibway to the East  
 The experts agreed that the Treaty 3 Ojibway, especially those living in the easterly  
portion of the Treaty 3 territory, had had contact with the Ojibway who had signed the Robinson  
Treaties in September 1850.  
 Chartrand report, Ex. 60, contains the following at pp 48-49:  
Although the boundary waters Ojibway had little direct experience with government officials prior to  
Confederation, they were clearly aware that neighboring groups east of the Lake Superior watershed  
and south of the American border had entered into treaty relationships involving land cessions and  
compensation for Euro-Canadian and Euro-American settlement. This knowledge was obtained either  
through occasional travels to Fort William and / or interactions with bands or band members  
signatory to those treaties.  
Between 1847 and 1854 a series of land cession treaties were negotiated with Ojibway occupants of  
lands west of Lake Superior. One of these treaties, the Robinson-Superior treaty involved Ojibway  
living within the boundaries of the Province of Canada. The treaty was negotiated at Sault Ste. Marie  
in September 1850 by William Robinson for a surrender of title to lands along the north shore of  
Lake Superior, from Batchewana Bay to the Pigeon River and inland to the height land defining the  
Lake Superior watershed. As compensation for surrendering title to these lands, the treaty provided  
Ojibway signatories with defined reserve lands for bands, monetary compensation in the form of a  
gratuity (one time payment) and perpetual annuities, rights to hunt and fish over the ceded territory  
excepting lands sold or leased and occupied among other stipulations.  
[References omitted.]  
 As noted earlier, the signing of the Robinson Treaties had been preceded by a colonial  
report suggesting that the Ojibway had no valid claim to the land. In 1848 when mining  
companies sought to develop mines in Treaty 3 territory north of Lake Huron and Lake Superior,  
where no treaty had been concluded, Lord Elgin, the Governor General acting in the capacity of  
Imperial official, had directed an inquiry into the Aboriginal claims to the territory that the  
colonial government had already rejected. At his behest, the Anderson-Vidal Commission met  
with the Chiefs, gathered information and submitted a report to the Governor-General and the  
Imperial Indian Department, concluding that the Ojibway claims were legitimate and  
recommending a treaty be negotiated.  
 In their report dated December 5, 1849 (Ex. 51), the Anderson-Vidal Commissioners  
wrote about their perception that a cession would have limited impact on Indian harvesting  
activities, as follows at p 6:  
It will not be advisable to propose the cession of a narrow strip upon the Lake shore, merely  
including the present mining tracts … Little if any difference, need be made in the terms offered, for  
all that is known to be of value is situated on the front, and they will still retain undisturbed  
 
Part 5. The Ojibway Perspective - Ojibway History  
45  
possession of their hunting grounds in the interior: -- in fact, whatever may be given to them for the  
surrender 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 the  
superior intelligence and industry of their white brethren are enabling them to draw wealth from a  
few limited portions of their territory, which never were nor could be, of any particular service to  
themselves.  
[Emphasis added.]  
 During the Robinson Treaty negotiations, when the Ojibway complained they were being  
offered less than Indians further south had received, Commissioner Robinson advised them that  
they could not expect to receive the amounts paid to those Indians, because unlike lands further  
south, their lands were "barren and sterile," unsuitable for settlement and unlikely to be  
developed. Robinson promised the Robinson Treaty Ojibway they would still be able to hunt and  
fish 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 this  
Province, and those then under consideration. They were of good quality and sold readily at prices  
which enabled the Government to be more liberal. They were also occupied by the whites in such a  
manner as to preclude the possibility of the Indians hunting over or having access to them: Whereas  
the lands now ceded are notoriously barren and sterile, and will in all probability never be settled  
except in a few localities by mining companies, whose establishments among the Indians, instead of  
being prejudicial, would prove of great benefit as they would afford a market for any things they may  
have to sell, and bring provisions and stores of all kinds among them at reasonable prices.  
 The uncontradicted evidence was that the text of the two 1850 Robinson Treaties differed  
significantly from the standard form of treaties used earlier in Southern Ontario, which had  
contained no express provision ensuring the continuation of hunting rights. The Robinson  
Superior 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 the  
Government of this Province, hereby promises and agrees … to allow the said chiefs and their tribes  
the full and free privilege to hunt over the territory now ceded by them, and to fish in the waters  
thereof as they have heretofore been in the habit of doing, saving and excepting only such portions of  
the said territory as may from time to time be sold or leased to individuals, or companies of  
individuals, and occupied by them with the consent of the provincial government.  
 Chartrand gave evidence (January 20, 2010) about the level of accommodation  
anticipated, 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 was  
of a different character than the scale and nature of activity that had taken place in the more southerly  
part of Upper Canada, Canada West at the time.  
 Counsel for the Plaintiffs submitted that based on that evidence, as of 1873, the Treaty 3  
Ojibway would have perceived that Robinson's representation in 1850, that the lands would in all  
probability 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 restricted  
to 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 their  
hunting grounds in the interior, continuing to hunt and fish as before. At the same time they had  
received treaty annuities. (Von Gernet, December 4, 2009; Epp, January 29, 2010.)  
Part 5. The Ojibway Perspective - Ojibway History  
46  
Post-Confederation Contact with Euro-Canadians in the Treaty 3 Area  
 The Treaty 3 Ojibway had expressed concerns about the building of the Dawson Route  
even before construction began.  
 From 1868, when the best location for the Route was being determined, to the date of the  
Treaty, Dawson and numerous other Euro-Canadians had been present in the Treaty 3 area over  
extended periods. They had built buildings and other infrastructure at various locations along the  
Route. They had cut wood and built steamboats to carry travellers over the waterways. They had  
employed Ojibway to assist with the construction, to move travellers over the Route by canoe or  
barge, and to cut wood to fuel the steamboats after the Route was opened.  
 Lovisek opined that the Ojibway likely viewed the payments they received for those  
activities as being akin to the tolls they were accustomed to charging. Although they benefited  
from those payments, they were happy to observe that the travellers were not remaining in their  
territory, but merely passing through it.  
Territorial Concepts  
 Prior to the making of Treaty 3, the Ojibway exclusively controlled their territories. They  
monitored access and charged tolls to any travellers passing through.  
 Lovisek opined and Chartrand agreed that the Ojibway concept of territoriality was  
focused not on a Euro-Canadian concept of land ownership, but on exclusive control of use by  
outsiders. They had no concept of selling land. Lovisek said it was natural resources, including  
game animals, fish, wild rice, corn, other crops, etc., that were important to the Ojibway, not land  
per se.  
 Chartrand agreed the Ojibway did not have a practice of buying and selling lands, either  
at the individual or at the collective level. They did not conceive of territorial rights in the Euro-  
Canadian sense of owning land and certainly not at the individual level. The Treaty 3 Ojibway  
concept of territoriality was focused on having the ability to control the use of land by outsiders.  
He gave evidence that the Ojibway did have a strong sense of territorial rights over the lands  
they had traditionally occupied and used. They understood they had an ability to exclusively  
control the use of their lands and waterways. They drew on the knowledge that they controlled a  
key transport route between the East and the West to their benefit by controlling access and  
charging tolls. (Chartrand, December 15 at pp. 59 and 63.)  
1871 Treaty Negotiations  
 On April 19, 1871, in a recommendation (Ex. 1, Vol. 5, tab 122, p. 301) to the Privy  
Council [approved April 25, 1871] Howe wrote that he thought the Ojibway would "be willing to  
surrender, for a certain annual payment, their lands to the Crown." The American Indians to the  
south of them had "surrendered their lands to the Government of the United States for an annual  
payment… stated …to amount to ten dollars per head for each man, woman and child…" Howe  
proposed that the Commissioner be "authorized, if need be, to give as much as twelve dollars…  
     
Part 5. The Ojibway Perspective - Ojibway History  
47  
for each family not exceeding five…for the surrender of the land…" (Ex. 45 at p. 300; Ex. 1,  
Vol. 5, tab 127 and Ex. 45 at p. 304.)  
 Simpson, Dawson and Pither were appointed treaty commissioners in 1871.  
 Chartrand wrote at p. 233 of his report, Ex. 60:  
Although a few bands in the boundary waters region had experienced disruptions to traditional  
subsistence harvesting due to the passage of the Wolseley expedition, at the onset of treaty  
negotiations in 1871 the traditional economy of the Ojibway remained viable, the strength of the  
traditional economic base of the society placed the Ojibway in a good position to promote serious  
negotiations with Crown representatives.  
 The 1871 negotiations were unsuccessful. The Commissioners' report dated July 11, 1871  
includes the following:  
We have the honor to inform you that we have had repeated interviews with the Sau[l]teaux tribe of  
the Ojib[b]eway Indians, at Shebandowan Lake and at this place [i.e., Fort Frances].  
The Indians in anticipation of negotiations being entered into with them had collected in larger  
numbers than usual and we had in consequence of favourable opportunity of explaining the intentions  
of the Government as to obtaining a surrender of their Territorial rights. They preferred claims in  
regard to promises which had heretofore been made to them for 'right of way' through their  
country. These we admitted to a limited extent and have made them presents in provisions and  
clothing, we are also to pay them a small amount in money, and it is fully and distinctly understood  
by the Indians, that these presents and payments are accepted by them as an equivalent for all past  
claims whatever.  
The Government is thus at the present moment clear of any Indian claims for the past, in the section  
of country intervening between the Height of Land and the Lake of the Woods.  
[Emphasis added.]  
 The 1871 Commissioners' report did not provide details of the discussion about a  
surrender of their "territorial rights." Chartrand gave evidence that the Commissioners'  
explanations were probably largely limited to conceptual explanations and core concepts, and did  
not likely extend to exact offers in regards to annual payments, reserve lands to be set aside, etc.  
 Lovisek opined that in 1871 the Ojibway were continuing to focus on a right of way  
agreement. Given the position the Ojibway took the next year at the 1872 treaty negotiations, she  
said the Commissioners' observation that "the Government was clear of any Indian claims for the  
past" suggests they misunderstood what the Ojibway had been telling them.  
 Both Lovisek and Chartrand gave evidence that by that time, the Ojibway perceived that  
there could be benefits from a Euro-Canadian presence in their territory, in the form of markets,  
employment, improved transportation and other opportunities.  
 Nevertheless, that perception did not translate into a willingness to enter into a treaty of  
cession. Unlike their kin at the Stone Fort and Manitoba Post, who had much better lands, they  
refused to enter into a treaty in 1871.  
Part 5. The Ojibway Perspective - Ojibway History  
48  
Ojibway to the West (Treaties 1 and 2)  
 In 1871, Simpson [not Simpson, Dawson and Pither] was given a separate commission to  
treat with "several tribes of Indians so occupying and claiming lands in our said Province of  
Manitoba, 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 of  
Manitoba and enter upon your duties as sole Commissioner with the Indian Tribes to the West of the  
Province.  
 The circumstances of the Red River Ojibway and Cree in 1871 were very different from  
those of the Treaty 3 Ojibway. The fertile Red River lands were the destination of many of the  
travellers crossing the Dawson Route. The Red River Indians were facing not only great influxes  
of Euro-Canadian settlers but also the imminent extinction of their primary source of sustenance,  
the buffalo.  
 While the Treaty 3 Ojibway had been relatively isolated, the Red River Ojibway and  
Cree had had regular contact with Euro-Canadians dating back at least to the founding of the  
Selkirk settlement in 1817.  
 Chartrand gave evidence that by late 1871, the Treaty 3 Ojibway knew about Treaties 1  
and 2 made with Ojibway to the West in July 1871.  
 Chartrand opined that evidence regarding the 1873 negotiations including representations  
made to the Treaty 3 Ojibway in 1873 is more relevant to the understanding and intention of the  
Treaty 3 Ojibway than representations made by a different commissioner to other treaty  
signatories under different circumstances at a different time. However, there was evidence that  
despite the significant differences in their circumstances, the promises made by the  
Commissioners during the Treaty 1 and 2 negotiations were likely communicated to the Treaty 3  
Ojibway and for that reason may be somewhat relevant to their understanding in 1873.  
 Despite their marginal relevance, I mention them briefly here. In the 1871 negotiations at  
the Red River, before introducing Treaty Commissioner Simpson, Lieutenant-Governor  
Archibald 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 the  
treaty. Much of it is rocky and unfit for cultivation. Much of it that is wooded, beyond the places  
where the white man will require to go, at all events for some time to come. Till these lands are  
needed for use, you will be free to hunt over them and make all the use of them which you have made  
in 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 roam  
and hunt as you have always done. And if you wish to farm, you will go to your own reserves where  
you will find a place ready for you to live on and cultivate.  
 Lovisek opined that if the translation were adequate, the Treaty 1 Ojibway and Cree  
would have understood that they would be able to indefinitely continue to hunt and fish as they  
had always done over much of the land they were ceding.  
 
Part 5. The Ojibway Perspective - Ojibway History  
49  
 Von Gernet conceded in cross-examination on December 7, 2009 that from what was  
said, they would have understood that there would be an area where there would be cultivation  
and settlement but there would remain plenty of land that would always be available for their  
traditional use.  
 I note that Simpson told the Treaty 1 and 2 Ojibway that he had told the Treaty 3  
Ojibway their land was "unfit for settlement."  
1872 Negotiations  
 Euro-Canadian mining activity near the height of land west of Thunder Bay in early 1872  
caused a confrontation between Chief Blackstone and the miners, providing an additional  
impetus to Treaty 3 negotiations.  
 On June 5, 1872, in a letter (Ex. 4, p. 193) to the Minister of Public Works, obviously  
concerned about the safety of travellers, Dawson described the Ojibway as "numerous, armed  
and excitable" and opined that the treaty negotiations were "very important matters, as regards  
the prosecution of the works." Increasing traffic over the Dawson Route and the advent of  
surveying parties for the CPR were further underscoring the importance of getting a treaty done.  
 On July 13, 1872, The Globe (Ex. 11, Vol. 5, tab 181) reported that Simpson, Dawson  
and Pither had again been appointed to attempt to negotiate a treaty:  
The Bands which have now to be dealt with are those who live on the waters between Lake Superior  
and Lake Winnipeg and as far north as Lake Seul. The Dawson Route, therefore, goes through one  
part of the territory that is to be ceded, while the Canadian Pacific surveyors are exploring through  
the other parts. The Bands affected by the Dawson Route have always had more or less inflated ideas  
of the importance of their property…  
The Chippeways of Rainy Lake District are unlike the Chippeways of Manitoba and the North West  
in that they are cranky, obstinate, and difficult to manage. They have constant communication with  
their Yankee brethren of Red Lake and Vermillion, and the evil communication has corrupted the  
good manners for which ... they were once distinguished ... they arrogate to themseves the most  
unlimited supremacy of the surrounding rock, wood and water…  
 The negotiations held at Fort Frances starting on July 14, 1872 did not go well. In the  
words of Von Gernet, they were "nothing short of a fiasco and nearly collapsed into a brawl."  
The Ojibway forcefully refused to deal.  
 The Ojibway leadership was deeply divided even about the desirability of entering into a  
treaty. By the end of the 1872 negotiations, the Commissioners and various contemporaneous  
commentators were sceptical that a treaty agreement could be reached in the near future.  
 In their official report dated July 17, 1872 (Ex. 4, pp. 194-195), the Commissioners  
conceded that the 1872 negotiations went nowhere:  
We have the honour to inform you that during the past sixteen days we have had repeated interviews  
with Saulteux [Salteaux] Indians of this place, and have done everything in our power to negotiate a  
Treaty with them in conformity with the views of the Government as conveyed to us through your  
Department, but regret to say that, in this we have not been successful.  
 
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50  
The Indians could not be induced to go into the discussion of the provisions made in the various  
articles of the treaty, and notwithstanding the clear understanding had with them last year, to the  
effect that the payments and presents, then made were to cover all claims real or supposed up to that  
time, have advanced the most extravagant demands for roads made on their lands and wood taken for  
steamers and buildings.  
Besides inadmissible claims of this kind, there have been other causes in operation, of a nature to mar  
the negotiations, and among these we may mention the fact that they are well informed as to the  
discovery of gold and silver to the west of the watershed, and have not been slow to give us their  
views as to the value of that discovery. "You offer us" said they, "$3 per head and you have only to  
pick up gold and silver from our rocks to pay it many times over". The chief of the section where the  
discoveries have taken place was emphatic in expressing his determination to keep miners from his  
country until he had been paid for his land.  
Last year treaties were made with the Indians in Manitoba, but it was in the presence of a military  
force, and with Indians long accustomed to intercourse with the white man.  
The Indians here are quite untamed and in their native state. We must however say for them that they  
have behaved themselves, except on the occasion to which we have alluded, with great propriety and  
circumspection. They seem fully alive to their own interests and evince no small amount of  
intelligence in maintaining their views. We have made them liberal presents of provisions, tobacco,  
etc and have parted with them on amicable terms, with the understanding that we are not to negotiate  
with separate bands, but that, if further propositions are to be made, we are to call a general council  
of the Chiefs, but we do not believe that under existing circumstances any good could arise from  
further Councils.  
[Emphasis added.]  
 On July 17, 1872, the Globe correspondent (Ex. 1, Vol. 5, tab 183) reported as follows:  
I am sorry to say that the Indians of this district are persistent in their refusal to enter into treaty  
negotiations with the Government. … They stand on their natural rights as lords of the land …. This  
business is likely to be the beginning of a great Indian trouble.  
…
In the evening when a Council was held in hopes that even then something might be arranged—for  
the good intentions of one chief were known by the Commissioners—the Indians of the Rainy  
Lake—a small part of the route only—expressed their desire to accede to the terms offered by the  
Commissioners. The speaker, who had privately told a gentleman here that he would probably lose  
his life for consenting, was interrupted by several other bands; but courageously continued to speak,  
though surrounded by angry eyes and angry hands, until one of his own band came up and whispered  
to him. The result was that his good intentions were all upset; but the sort of ground on which the  
whole mob were at ending may be judged of from the fact that when the Indian I refer to was touched  
from behind by his friend, his hand flew to the handle of his scalping knife, for he thought the time  
for the row had come.  
…
It turned out that the temporary absence from the proceedings of the resident agent was caused by his  
wanting his revolver, and another gentleman admitted that he had shifted the position of his pistol so  
that he could seize it at a moment. For myself, I determined that the next time I went amongst these  
Indians I'd bring my revolver also.  
The commissioners, therefore, have nothing to do but take their departure … and so the treaty with  
the Rainy Lake Indians is a thing of the future. What the consequences of there being no treaty may  
be I do not know, nor can anyone exactly foretell; but the proceedings here have given support to  
ideas which I have heard from nearly every old resident of the Indian country.  
Part 5. The Ojibway Perspective - Ojibway History  
51  
They say: you cannot treat with Indians, nor can you hold the Indian country for many years at least,  
without the presence of troops ...  
It is probable that the works on the road here will be stopped by the Indians. … it is the opinion not  
only of the Commissioners but everyone here, that until troops are sent into the district and  
permanently kept there during the summer at any rate, the route will not be safe, and the Government  
works are liable at any moment to be destroyed. The Indians must be afraid of the white people or  
they will very soon make the white man fear them. Mr. Commissioner Simpson publicly said that he  
would not again come here to negotiate with the Indians without the presence of troops; and Mr.  
Dawson declared that to carry on the public works without them was impossible ...  
 On July 27, 1872, the Manitoban newspaper reporter characterized the situation as "dire:"  
The Indians  
Since the inception of Canadian connection with Rupert's Land difficulties have been generated ...  
when all at once we have a new development in the form of an Indian difficulty ... No wish to  
frighten people ... unless the utmost caution be taken and the utmost skilll of manipulation is  
exercised, any day may find us plunged into ... an Indian war... Mr. Commissioner Simpson has been  
obliged to depart from Fort Frances without effecting a treaty, leaving the Indians in an attitude  
approximating something very like hostility. The Dawson Route will be rendered too unsafe to be  
used, and the whole work of Indian treaties has been brought to a termination at least for (illegible)  
As things now stand, Commissioner Simpson dare no more go amongst the [illegible] Indians and  
propose a treaty than he dare go and denounce polygamy in the hall of the Sultan of Turkey ... the  
attempt would be futile ... the Indian logic and motive of action, the following: We don't want  
Canada's money. … All we wish is the white man to keep away … With a good many people, when  
the Indian question is brought up, there seems to be an impression that there are only two ways of  
dealing with it, either treating the Indians as children or treating them as outlaws ...  
To the idea of exterminating them, the matter assumes a much more serious aspect ... nothing is so  
simple as to send 100 men to Fort Frances ... Suppose these tribes became hostile, what would 100  
men do .?..  
But is coercion necessary? ... We would suggest to the Ottawa Government that were they to appoint  
a commission of such men ... who are thoroughly acquainted with the Indian character ... to deal with  
the Indians ... with ample powers ... to appreciate anything beyond a three dollar annuity.  
[Emphasis added.]  
 Saywell's evidence on April 6, 2009 contains the following:  
Q. … there was concern in Canada about the Indians and the Métis taking …military action against  
the Canadian government and settlers in the west; is that fair?  
A. Well, it's not just concern. There was military action against the Canadians in Red River.  
Q. Is it that there was an out-and-out uprising which required an expedition from the east to put  
down; is that fair?  
A. Yes…  
…
Q. But when we look back to the 1870's…[a large scale military uprising by the Indians] was a very  
real concern?  
A. Yes … the events south of the border suggested that North American Indians were still capable of  
opposing European advances…  
Q. …But I take it that the concern probably had two aspects to it. … the lesser concern -- of a  
successful uprising. … I would suggest that underneath all of this, there would be great expense  
Part 5. The Ojibway Perspective - Ojibway History  
52  
attached to putting down these uprisings and that that expense would have to be borne by the  
Governments of Canada. Is that fair?  
A. It may be a fair statement. …  
Q. There was a concern about the expense associated with financing and maintaining military  
expeditions to deal with the Indians. Let me suggest that to you.  
A. I have no evidence of that. It makes common sense to me that it would, yes.  
Q. …[W]hen we look back at something like Treaty 3, … we have to bear in mind that some of the  
preoccupations we have today about the Indians may be very different than the preoccupations that  
the political classes and even the ordinary people would have had about the Indians at that time; is  
that fair?  
A. I think that's fair.  
 The Globe report of the 1872 negotiations dated August 5, 1872 contained the following:  
The Indians flatly, firmly declined to enter into treaty with the government until they've been paid for  
the road ... they decline to have anything to do with any treaty until a present of food and clothing for  
each one has been set before them and an assurance given that this will be repeated annually. In fact,  
the demands are such as no government or no people would endorse, and that's demands, be it  
remembered that are only a prelude to others which would follow in the case of a negotiation for a  
treaty ... they won't sign any treaty unless impossible demands are first complied with.  
[Emphasis added.]  
 When the report of the Commissioners was received in Ottawa, Spragge wrote a memo  
((Ex. 4, p. 197) dated September 5, 1872:  
It will be perceived that Mr. Simpson attributes the obstacles he has met with, preventing so far the  
obtaining a surrender from the Salteaux Indians, to the reported valuable discoveries of the precious  
metals within the territory, a cession of which has been the object of their negotiations, the  
knowledge of which has reached those Indians, and who have taken serious umbrage at lands being  
sold and patented by the Government of the Province of Ontario, while as yet the Indian Title thereto  
remains unextinguished. [Emphasis added.]  
 Since abandonment of negotiations was not an option, Spragge began to formulate a new  
offer. He recommended the introduction of a system patterned on the Maritime Peace and  
Friendship treaties, of assigning salaries to the head chief of each band not exceeding $25/year  
and to the second chief not exceeding $15/year.  
 On December 2, 1872, Morris was appointed Lt. Governor of Manitoba and the  
Northwest Territories and personal representative of John A. Macdonald, replacing Archibald.  
6. LEAD-UP TO THE 1873 NEGOTIATIONS  
 On March 1, 1873 the Manitoban newspaper (Ex. 1, Vol. 6, tab 211) contained the  
following:  
Canada Pacific Railway  
The text of the contract entered into between the Government and the Canada Pacific Railway to the  
Company has been published ... the Government undertake also to extinguish the Indian title to lands  
needed by the Company  
… the scheme is one of immense magnitude and of utmost importance to the Dominion at large.  
[Emphasis added.]  
 On May 17, 1873, the same newspaper (Ex. 1, Vol. 6, tab 214) contained the following:  
North West route  
 
Part 6. Lead-Up to the 1873 Negotiations  
53  
As the season is about to open for travel ... Canadian route to our North West province ... from Fort  
William to Fort Garry ... there is now, according to Mr. Dawson, a fairly practicable road over the  
land parts of the route...  
The Thunder Bay road has been graded and in many parts gravelled, so emigrants can be comfortably  
conveyed in the wagons provided by the authorities ... according to the promises of Mr. Dawson we  
may look for the emigrants to Manitoba by the Canadian route being accomplished, during the  
season.  
 On May 31, 1873, the Manitoban reported, "The passenger traffic now by stage and  
steamboat ... more than 200 people having come over the Route."  
 Chartrand's report (Ex. 60) contains the following:  
At p. 99:  
…by 1873 it was increasingly imperative for the Dominion government to obtain a treaty agreement  
regarding lands between the Lake Superior watershed and the Province of Manitoba. Construction  
work on the Dawson route resumed in the spring of 1873 aiming to improve travel and transport  
conditions. In addition, since 1871 it was understood that further lands would be required for the  
construction of a national railway line to British Columbia, promised to that province as a condition  
for its entry into Confederation. A newspaper article dating to early March 1873 reported that the  
railway link from Lake Superior was scheduled to be completed by the end of 1876.  
At. p. 194:  
Since March 1873, it was public knowledge that an eastern segment of the Canadian Pacific Railway  
linking Lake Superior and Winnipeg was expected to be completed within less than three years, by  
December 31 st, 1876. The CPR created an added sense of urgency for the Dominion to succeed in  
negotiating a treaty for the surrender of title to lands by the Ojibway. As Daugherty points out:  
On the 17th of July, Sir John A. Macdonald telegraphed Lieutenant-Governor Morris who  
replaced the retired Lieutenant-Governor Archibald, that the railway from Pembina to Red  
River would be completed by December 31, 1874, and the section from Lake Superior to  
Red River by the same day in 1876. Since the latter section would have to pass through the  
as yet unceded territory of the Saulteaux, it became imperative that this area be secured.  
[Emphasis added; references omitted.]  
 Lovisek's report (Ex. 28) contains the following at p. 74:  
By the time of the 1873 treaty negotiations, the Dominion Government's interest in entering into  
Treaty 3 was disposed to the securing of land and rights of way for the Canadian Pacific Railway  
[CPR]. The added pressure was that the section of the CPR from Lake Superior to the Red River was  
to be completed by December 31, 1876. The Dominion Government now faced two right of way  
issues, the Dawson Route and the Railway.  
[Emphasis added; footnotes omitted.]  
 In the spring and early summer of 1873, Canadian officials proposed revised treaty terms,  
different Treaty Commissioners and a new location for the treaty negotiations.  
 A Spragge memorandum dated May 31, 1873 (Ex. 4, pp. 212-213) contains the  
following:  
… with the object of re-opening negotiations for a Treaty, and cession of lands, with the Indians who  
assemble periodically at Fort Frances… it is respectfully submitted that in view of the terms already  
proposed to them not having been accepted … that authority be given to place before the Indians a  
somewhat different proposition than heretofore offered them.  
Part 6. Lead-Up to the 1873 Negotiations  
54  
They have refused an annuity of $3 a head as inadequate, although a gratuity of corresponding  
amount was tendered with it, and they argue that the discoveries of precious metals within the  
territories which they claim as hunting grounds entitle them to more generous treatment.  
… from the best information which can be obtained, it is to be assumed that it would be wasting time  
to repeat the same offers. It is accordingly proposed that if found absolutely necessary, the annuity  
per head be made $5, to be continued at that rate for a period of 15 years, and then to be reduced to  
$3 per head, and as a gratuity on concluding a Treaty is invariably expected, that it be made on this  
occasion $4. … It will, of course, be necessary to consent to such Reserves of moderate extent, and in  
the same ratio as provided for in the Treaties alluded [Treaties 1 and 2], being set apart …  
 On June 2, 1873, Dawson recommended (Ex. 4, p. 210) comparatively more generous  
terms:  
In order to effect a treaty ... it will be necessary that the commissioners should have it in their power  
to make ... more liberal offers than they were enabled to do last year ...  
In suggesting that His Honour, the Governor of Manitoba, should meet the commissioners and  
Indians at the Northwest Angle ... with the company of ... troops now stationed at Fort Garry, I would  
say in explanation, that the ... Indians having ... had but little intercourse with the white man, are still  
but savages and like all Indian tribes in a primitive condition, much impressed by ceremony and  
display. They feel and know that the treaty is a matter of the greatest importance to them and when  
they see the commissioners coming unattended as they have so far done, to treat with them and  
observe the utmost parsimony, manifested, even in dealing them out a few day's rations, as has  
hitherto been the case, they are led to the belief that the Government of Canada attaches but little  
importance to negotiations which are to them of the gravest moment ... [Emphasis added.]  
He also recommended that the Commissioners be empowered to offer a present equal to $14 per  
person [vs. $4 per person] plus annual payments up to Ten Dollars [$10] per person [vs. $5 per  
person for 15 years then $3 per person.]  
 Apparently without having reviewed Dawson's recommendations, Spragge's  
recommendations in a memorandum [Ex. 1, Vol. 6, tab 219] to the Minister of Public Works  
dated June 5, 1873, were adopted by Order in Council dated June 16, 1873.  
 On the same day, June 16, 1873, an Order in Council (Ex. 4, pp. 213-214) was passed (to  
which Chartrand referred as the authority for the 1873 Treaty 3 Commissioners), which  
contained the following:  
Whereas we have thought it expedient for the due management of Indian Affairs in the Province of  
Manitoba and in our North-West Territories respectively in our said Dominion of Canada that a  
Board of Commissioners should be appointed for suggesting, reporting on and arranging the general  
principles and bases upon which all the negotiations and Treaties (whether for the cession to us of  
lands or otherwise), between us and the several Indian bands or tribes in the said Province of  
Manitoba and the North-West Territories of our said Dominion of Canada, and upon which all  
questions of general policy in Indian Affairs as regards the said Province and territory should be  
settled.  
Now therefore know ye that ... the said the Hon. Alexander Morris, Lindsay Russell and Joseph  
Albert Norbert Provencher, have thought fit to ... appoint you ... to be our commissioners for  
suggesting, reporting on and arranging the several principles and bases upon which all the  
negotiations and treaties (whether for the cession to us of lands or otherwise) between us and the  
several Indian bands or tribes in the said province of Manitoba and the Northwest Territories of our  
Part 6. Lead-Up to the 1873 Negotiations  
55  
said Dominion of Canada, and upon which all questions of general policy in Indian affairs as regards  
the said province and territory should be settled [Emphasis added.]  
And we do hereby authorize and empower you …for us and our successors, and in our name from  
time to time to negotiate, make and conclude with the several bands or tribes of Indians the necessary  
Treaties for the cession to us, our heirs and successors, of all and every their respective rights, titles  
and claims to and in the said lands and every of them.  
Provided always, and it is our Royal will and pleasure that the powers and authority, by these our  
Royal Letters Patent given to and conferred upon you … with and by the assent and approval of our  
Governor-General of Canada and not otherwise howsoever.  
[Emphasis added.]  
 Alexander Campbell ("Campbell"), the Minister of the Interior, who had recently become  
Superintendent of Indian Affairs, had begun to take a hand in the negotiations. Bearing in mind  
Dawson's recommendations, and concerned that they might fail if the Commissioners were  
hamstrung by the earlier Order in Council endorsing Spragge's recommendations of June 5,  
1873, he wrote a letter to his ex-Parliamentary colleague, Morris, on July 31, 1873 that included  
the following:  
…I would recommend a military escort being sent and I have no doubt it will be done ...  
Dawson has recommended that the sum to be given to the Indians as an actual gift be augmented  
from $5-$14 a head, and that the Commissioners have discretionary power to go as high as $10 per  
annum per head by way of annuity, instead of five dollars as at present, and I am going to bring these  
two points before Council this afternoon.  
[Emphasis added.]  
 On August 6 1873, Canada passed an Order in Council (Ex. 4, p. 220) reflecting  
Campbell's recommendations as follows:  
… the Minister of the Interior believes that it will be necessary to give larger sums to the Saulteaux  
tribe than those mentioned in the Order in Council above referred to and he recommends …discretion  
to augment the immediate present to the Indian to … not [exceed] $15 a head of the population, and  
that in regard to the annual payments to be subsequently made, the Commissioners … discretionary  
power, with a limit of seven dollars per head of the population.  
The minister … believes from the information before him, that a treaty cannot be negotiated ...  
without the discretionary powers as above recommended being given to the Commissioners …  
[Emphasis added.]  
 Campbell wrote Ex. 4, p. 219 to Morris as follows:  
The Order-in-Council, you will observe, gives the Commissioners discretionary power to go as high  
as $15 per head as a cash payment, and as high as $7 per head as an annuity to each Indian. While,  
however, it has been thought desirable (with a view to prevent the possible failure of the negotiations)  
to give the Commissioners such large discretionary powers, the Government rely that every effort  
will be made … to secure a Treaty on more favourable terms …  
 By letter dated August 9, 1873 (Ex. 4, p. 221), Campbell requested the acting Minister of  
Militia and Defense to arrange for troops to attend the Treaty negotiations:  
... not because of any danger to be apprehended from the Indians, but because of the effect which is  
produced upon them by the presence of the surroundings, which in their minds should accompany the  
representatives of the Sovereign who are sent to deal with them.  
Part 6. Lead-Up to the 1873 Negotiations  
56  
 On August 26, 1873, Dawson, apparently realizing he had not been re-appointed a Treaty  
Commissioner, wrote Ex. 4, p. 224 to Campbell:  
… they have for some years past observed the whitemen in unaccustomed numbers pursuing their  
avocations quietly and unobtrusively, and if they are now disposed to enter into a treaty with the  
Government, as I believe them to be, I can safely say that it is in no small measure due to the fact that  
from observing the proceedings of the people on the Works they have begun to look with favour on  
the altered position in which they are being placed by the opening up of their country…  
[Emphasis added.]  
 Over August, difficulties developed in respect of Lindsay Russell's appointment as Treaty  
Commissioner. On September 3, Campbell appointed Dawson to replace Russell (although not as  
a member of the Management Board of Commissioners appointed June 16, 1873.)  
 Campbell specifically instructed Morris that Dawson was "not to negotiate the treaty at  
the North West Angle. You are, with the other Indian commissioners."  
 In his capacity as Lieutenant Governor of Manitoba and the Northwest Territories, Morris  
had had a busy summer. He had not been ready to start the negotiations earlier.  
 Lovisek's report (Ex. 28) contains the following at page 81:  
Lieutenant-Governor Morris was not ready to enter Treaty 3 negotiations just then, for he was dealing  
with the aftermath of violent outbreaks which had lead to a massacre of the Assiniboine by American  
whiskey traders at Cypress Hills in June 1873. As a result of the violence, settlers, who were afraid  
that the Dakota (Sioux) might attack Fort Garry, urged Morris to remove the Dakota (Sioux) to  
reserves. Since Morris had received permission to negotiate a treaty with the Dakota in the spring of  
1873, he dispatched a former HBC employee, Pascal Breland to speak with the Dakota. The urgency  
of settling Indians on reserves was further compounded by increasing tensions between the Dakota,  
Métis and other native groups like the Saulteaux and Cree. Violence had escalated by July 1873. If  
this wasn't enough, Morris also had to deal with the arrest of Louis Riel for "inspiring insurrection."  
Under the weight of these political considerations, Lieutenant-Governor Morris insisted that troops  
accompany the Commissioners to the Treaty 3 negotiations. This reason for a military presence at  
Treaty 3 negotiations, differs from that originally proposed by Campbell based on information  
received from Dawson, which was that the troops would add the necessary ceremony and decorum to  
demonstrate to the Saulteaux that the Dominion Government took treaty negotiating seriously.  
Morris, however, was unable to obtain as many troops as he wanted because the military was needed  
for disturbances elsewhere. Walmark has interpreted Morris' perception of treaty negotiations in view  
of what Morris faced in Manitoba at the time:  
Morris knew he would have to settle the Treaty Three negotiations quickly; he did not have  
the luxury of time to deal with the Saulteaux. The growing fear in Fort Garry that Riel would  
be elected only intensified the need to conclude the Treaty Three negotiations. The  
Lieutenant-Governor was under intense pressure as he travelled to the Lake of the Woods  
determined to sign an agreement with the Saulteaux….  
[Emphasis added; footnotes omitted.]  
 The previous negotiations in 1870, 1871 and 1872 had all been at Fort Frances. The 1873  
negotiations were to take place at the North West Angle; Pither was asked to arrange for the  
Ojibway to assemble there by September 10. After the Ojibway objected to the new location,  
Morris directed them that negotiations would commence there on September 25, 1873. He  
continued to insist that troops be present.  
Part 7. The 1873 Negotiations  
57  
7. THE 1873 NEGOTIATIONS  
The Documents  
 The extant documents relating to the 1873 negotiations are voluminous. They include the  
following:  
1. The Shorthand Reporter's Account/The Manitoban Newspaper Account  
 According to Morris, the Shorthand Reporter's Account (Ex. 1, Vol. 7, tab 282) was  
prepared by an anonymous soldier who accompanied him to the North West Angle for the Treaty  
negotiations. It was published in The Manitoban newspaper in several editions in October 1873.  
The reporter's original notes are no longer extant.  
 Morris later copied the Manitoban account (beginning at p. 52) in Ex. 9, his 1880 book,  
Treaties of Canada with the Indians. He added the following preamble:  
Attention is called to the ensuing report of the proceedings connected with the treaty, extracted from  
the Manitoban newspaper of the [11th and] 18th October, 1873, published at Winnipeg. The reports of  
the speeches therein contained were prepared by a short-hand reporter and present an accurate view  
of the course of the discussions, and a vivid representation of the habits of Indian thought.  
 In these Reasons, the additions and substitutions that Morris made are bolded; his  
deletions are shown in italics.  
 There was disagreement in the evidence about the objectivity of the Manitoban, the  
Defendants contesting the Plaintiffs' suggestion that it was an "organ" of the Manitoba  
government.  
 In his report, Ex. 60, Chartrand noted that there has been speculation, for example, that  
Morris and the author of the Manitoban article colluded to ensure consistency between the  
published account and Morris' Official October 14, 1873 Report.  
2. The Nolin Notes  
 The Nolin Notes (Ex. 1, Vol. 6, tab 275) in English, were taken by Joseph Nolin, a Métis  
employed by the Ojibway Chiefs. After editing them, Morris attached a copy to his Official  
Report of October 14, 1873 without comment.  
3. The Dawson Notes  
 Commissioner Dawson took longhand notes [Ex. 1, Vol. 6, tab 268] during the  
negotiations. His lengthy association with the Ojibway enabled him to identify many of the  
Ojibway speakers whom the Shorthand Reporter had not.  
         
Part 7. The 1873 Negotiations  
58  
4. Indian Reporter.  
 During the Treaty negotiations a Chief told the Commissioners, "You must remember  
that our hearts and our brains are like paper; we never forget." Although the memory record  
apparently taken by an anonymous Indian Reporter has not survived, Lovisek opined it was  
likely transmitted orally to other Ojibway and may have been reflected in surviving written  
complaints that are included in the historical record.  
5. The Treaty/Morris Document  
 The formal, English language Treaty text, signed by the parties on October 3, 1873, the  
document the Commissioners would have understood to be "the Treaty;" was attached to Morris'  
October 14, 1873 Official Report and approved by Privy Council Order on October 31, 1873. It  
is reproduced (with a transcription) in Ex. 1, Vol. 7, tab 276. A type-set copy appears in Ex. 9,  
Morris' text, at pages 320-32.  
 Lovisek's report (Ex. 28) contains the following at pp. 105-106:  
The Morris Document was in part a "fill in the blank" treaty….  
…
It is likely that the Morris Document, which was completed "in an hour", included the actual drafting  
of selected additional text to an already prepared template.  
[Footnotes omitted]  
 I note that in the handwritten document, the reference to the Dominion in the Harvesting  
Clause is underlined.  
6. Morris' Official Report  
 Morris' Official Report to Ottawa of the Treaty negotiations (Ex. 1, Vol. 7, tab 284) is  
dated October 14, 1873. To it he attached the Nolin Notes and the Treaty.  
 Lovisek's report (Ex. 28) contains the following at p. 107:  
On October 14, 1873, Commissioner Morris prepared an official report of the Treaty 3 negotiations.  
He also attached documents which he considered important and as part of the treaty of record. The  
official report was prepared for publication in the Annual Report of the Department of the Interior for  
the Year Ended 30th June 1874.  
[Footnotes omitted]  
7. The Manitoba Free Press Account, October 18, 1873  
 An account of the negotiations published in The Manitoba Free Press, Ex. 67/67A, came  
to light part-way through the trial.  
8. Exhibit 31 Handwritten Proposed Articles of Treaty  
 Exhibit 31, archived with Morris' papers, appears to be notes made by former Treaty  
Commissioner W. Simpson.  
         
Part 7. The 1873 Negotiations  
59  
 Lovisek's report, Ex. 28, contains the following at pp. 103-4:  
The Proposed Articles of Treaty is a document which appears to be in the handwriting of former  
Treaty Commissioner W. Simpson and which had likely been prepared prior to the 1871 Treaty 1 and  
2 negotiations. A copy of the Proposed Articles of Treaty is retained in Morris' papers. Although the  
Proposed Articles of Treaty is dated October 3, 1873, the handwriting of the date is different from the  
handwriting of the document and was likely added at a later time to the document. October 3, 1873  
corresponds to the last day of Treaty 3 negotiations.  
The Proposed Articles of Treaty contains various articles and a list of descriptions written in  
colloquial language divided into several sections and subjects. … The articles included the  
statements:  
No provincial legislature will have the right to change the treaty.  
[Footnotes omitted]  
10. Draft Treaty [Exhibit 32]  
 In 1873, Morris appears to have reviewed and then edited a draft treaty that included a  
metes and bounds description of the Treaty 3 territory, various suggested treaty provisions and  
spaces for insertion of further provisions including descriptions of the lands to be allotted as  
reserves. The dates and the names of the signatories were left blank.  
Arrival of the Treaty Parties at the NorthWest Angle – late September 1873  
 It was unusual for treaty negotiations to be held so late in the annual Ojibway seasonal  
round. The 1871 and 1872 negotiations had been held at Fort Frances during the summer fishing  
season, where and when food was abundant. The 1873 negotiations were being held at a place  
and time in the seasonal cycle that were more difficult for the Ojibway.  
 Chartrand gave evidence that when the Commissioners, along with a contingent of  
troops, arrived at the North West Angle toward the end of September 1873, the Ojibway were  
not yet fully assembled.  
 The Manitoba Free Press report Ex. 67/67A contains the following:  
This is the third time the government [has] [sent] … Indian commissioners to negotiate a treaty with  
the tribes eastward of Manitoba. In 1871, a meeting took place at Fort Frances, when the Indian  
having been fed and provided with six dollars each, departed. In 1872 another meeting took place at  
Fort Frances, when much satisfaction was expressed at the Commissioners coming, but the Indians,  
having eaten everything there was to, declined to make any treaty and went off after coming as near  
as their natures would allow them to an open fight. After considerable difficulty and with much  
coaxing, these same people agreed to meet the Lieutenant-Governor and the Commissioners at the  
Northwest Angle, and everything that could be done to bring the matter to a conclusion has been  
done by the authorities. Ample provisions were sent out, presents were sent out from Canada, troops  
were sent out from Fort Garry to add the pomp of military display, tents were provided for those  
Indians who were without them, and yet up to the present time it has been found impossible to  
persuade the Indians even to meet the Lieutenant Governor at a Council. [Emphasis added.]  
…
 The Manitoban newspaper account, as later annotated by Morris in Ex. 9, his 1870 book,  
with his additions and substitutions in bold and his deletions in italics, contains the following:  
   
Part 7. The 1873 Negotiations  
60  
North-West Angle, Sept[ember] 30, 1873.  
The Lieutenant-Governor and party, and the other Commissioners appointed to negotiate a treaty  
with the Indians, arrived here on Thursday, 24th inst…  
…
It was at first thought probable that the serious business of the meeting would be begun on Friday, but  
owing to the non-arrival of a large body of Rainy River and Lac Seul representatives, it was decided  
to defer it until next day. Saturday came, and owing to the arrival of a messenger from the Lac Seul  
band asking the Governor to wait for their arrival, proceedings have further stayed until Monday. But  
"hope deferred maketh the heart sick;" so the advent of Monday brought nothing but disappointment,  
and this, coupled with the disagreeable wet and cold weather that prevailed, made every one ill at  
ease if not miserable. The Chiefs were not ready to treat – they had business of their own to transact,  
which must be disposed of before they could see the Governor; and so another delay was granted. But  
Monday did not find them ready, and they refused to begin negotiations. An intimation from the  
Governor that unless they were ready on the following day he would leave for home on Wednesday,  
hurried them up a little – they did wait on him to-day, Tuesday, but only to say they had not finished  
their own business, but that they would try and be ready to treat on Wednesday. And so the matter  
stands at present …  
…
The whole number of Indians in the territory is estimated at [1]4,000, and are represented here by  
Chiefs of the following bands:  
1. North-West Angle.  
2. Rat Portage.  
3. Lake Seul.  
4. White Fish Bay on Lake of the Woods.  
5. Sha-bas-kang, or Grassy Narrows.  
6. Rainy River.  
7. Rainy Lake.  
8. Beyond Kettle Falls, southward.  
9. Eagle Lake.  
10. Nepigon.  
11. Shoal Lake (three miles to the north of this point).  
 Morris' Official Report dated October 14, 1873 (Ex. 1, Vol. 7, tab 284; Ex. 4 at p. 228)  
contains the following:  
I left here for the Angle on the 23rd Sept.[ember] and arrived there on the 25th, when I was joined by  
Messrs. Provencher and Dawson, the last named of whom I was glad to find had been associated with  
the Commissioners in consequence of the resignation of Mr. Lindsay Russell, thereby giving us the  
benefit as well of his knowledge of the country to be dealt with, as of the several bands of Indians  
resident therein. Mr. Pither [Pether], of Fort Frances, was also in attendance, and Mr. Provencher  
was accompanied by Mr. St. John of his department.  
On arriving, the Indians who were already there came up to the house I occupied, in procession  
headed by braves bearing a banner & [and] a Union Jack, & accompanied by others beating drums.  
They asked leave to perform a dance in my hono[u]r, after which they presented to me the pipe of  
peace. They were then supplied with provisions and returned to their camp. As the Indians had not all  
arrived and for other reasons, the 26th, 27th and 28th were passed without any progress, but on the 29th  
I sent them word that they must meet the Commissioners next morning. Accordingly, on the 30th they  
met us in a tent the use of which I had obtained from the military authorities. I explained to them the  
object of the meeting, but as they informed me that they were not ready to confer with us, I adjourned  
the meeting until next day.  
Part 7. The 1873 Negotiations  
61  
Commencement of Proceedings on September 30, 1873  
 From the records alone, the dates of the negotiations are unclear. However, as Morris  
appears to have been in error in his October 14 report about the dates of the negotiations, based  
on the weekdays specified, it appears that they started in a formal sense on September 30, 1873,  
when the Ojibway Chiefs and the Treaty Commissioners met. Morris introduced himself. The  
Chiefs indicated they needed more time to prepare. The meeting broke up.  
 The Manitoba Free Press (Ex. 67/67A) contains the following:  
The Lieutenant Governor informed the Indians of his object in calling them together and explained  
that he and Mr. Provencher had been instructed to speak to them on behalf of the Queen, and  
referred in an easy manner, but with evident sincerity to the regard which he had always felt towards  
the native tribes of the Northwest. … He invited the chiefs to come forward to shake hands with him  
and then to speak what was it in their minds. There was not anything in their minds except the  
determination to dodge the interview for another day; for no sooner had the Governor ceased  
speaking, when the spokesman of the party came forward and on behalf of all the Indians present  
declared that they had nothing to say today but would deliberate on what the Governor had said until  
tomorrow. The Governor then told them that his time was much occupied, but that in the belief that  
they would come to some determination tomorrow they would wait over ....  
 Dawson's notes record Morris' introductory comments as follows:  
Gov. Morris said, "I am very glad to be here today amongst the Queen's subjects I see before me. I  
have been sent here with Mr. Provencher to see you all - to shake hands with you and to wish you  
well. I can tell you that the Queen has always loved her Indian subjects -- she is always kind to  
them and they have been kind to her in return. She has sent me to see you. I am one of her  
servants. I am her Governor in this great country and she has sent me here to see and talk with  
you. I am glad of the honor of meeting you here to-day.  
The reason I am here today is that the Queen's Government wish to have the treaty with you to  
take you by the hand and never let your hand go. If you wish to make a treaty with me and my friends  
I wish you would present your chiefs and headmen.  
"Powassan" said "what we have heard today we cannot answer until further consideration."  
Gov. Morris said, "I cannot remain here long but will stay until 11 o'clock on Wednesday morning."  
[Underlining emphasis added.]  
 I note that in his opening statement, it appears that Morris did not mention that Dawson  
was also there to speak to them. He only mentioned Provencher.  
October 1, 1873  
 The Manitoba Free Press describes the proceedings on October 1, 1873 as follows:  
The real opening of negotiations commenced today. Indians came up in grand procession, and the  
business commenced by an intimation from the Governor that he was ready to receive and shake  
hands with the chiefs. Instead, however, of proceeding in the manner expected of them, the Indians,  
…. preferred an indictment against Mr. Dawson. When the question was examined however, the  
indictment …fell to the ground and the accusers made a change of ground. They wanted certain  
payments and gifts for the Dawson Road before they would consider the question of the treaty at all.  
This is exactly the ground they took last year at Fort Frances. Altogether ignoring the fact that in  
   
Part 7. The 1873 Negotiations  
62  
1871 they had received six dollars per head of population in liquidation of all past demands, they  
yesterday stated that they required payment for two steamboats built at Fort Frances, besides other  
matters connected with the road. The Governor however declined to separate the two questions, and  
briefly informed them of the terms which he was commissioned to offer and after some unimportant  
remarks the council broke up until tomorrow morning. These terms were - to each man, woman, and  
child the gratuity this year of $10. For subsequent years five dollars a head. Each chief to receive  
instead of the above $25 a year, and each head man [counselor] $15. The reservations to comprise  
one square mile for each family of five.  
 I note that this record makes no mention of a statement by Morris that the Ojibway could  
hunt and fish on the lands until they were wanted.  
 Morris' October 14, 1873 Official Report contains the following:  
On the [1st] they again assembled, when I again explained the object of the meeting through [Mr.]  
McPherson, an intelligent half breed trader whose services I secured. M. Chatelan, the Government  
interpreter, was also present. They had selected three spokesmen and had also an Indian reporter  
whose duty was to commit to memory all that was said. They had also secured the services of M.  
Joseph Nolin, of Pointe du Chene to take notes in French of the negotiations, a copy of which notes I  
obtained from him and herewith enclose. The spokesmen informed me they would not treat as to the  
land until we settled with them as to the Dawson Route, with regard to which they alleged Mr.  
Dawson had made promises which had not been kept, and that they had not been paid for the wood  
used in building the steamers, nor for the use of the route itself. Mr. Dawson explained that he had  
paid them for cutting wood, but had always asserted a common right to the use of wood and the water  
way. He asked them what promise had not been kept, and pointed out that the Government had twice  
before endeavored to treat with them for a settlement of all matters. He referred them to me as to the  
general question of the use of the route. They were unable to name any promises which had not been  
kept. Thereupon I told them I came on behalf of the Queen and the Government of the Dominion  
of Canada to treat with them with regard to the lands and all other matters, but that they refused to  
hear what I had to say; [they] had closed my mouth and, as we would not treat except for the  
settlement of all matters past and future I could not speak unless they asked me to do so. They  
conferred among themselves and seeing that we were quite firm, the spokesmen came forward and  
said that they would not close my mouth, after which they would make their demands. The  
Commissioners had had a conference and agreed, as they found there was no hope of a treaty for a  
less sum to offer [$5] [five dollars] per head, a present of [$10] [ten dollars], and reserves of  
farming and other lands not exceeding one square mile per family of [5] [five], or in that proportion,  
sums within the limits of our instructions, though I had private advices if possible not to give the  
maximum sum named, as the Government had been under a misapprehension as to amounts given to  
the Bands in the United States. The Chiefs heard my proposal and the meeting adjourned until next  
day. [Underlining added.]  
 Chartrand gave evidence that none of the Dawson Notes, the Manitoban newspaper or the  
Manitoba Free Press corroborate a reference by Morris to the Government of the Dominion of  
Canada (although I note that Dawson's notes refer to the Queen's Government.)  
 The October 14 Official Report makes no mention of a statement by Morris that the  
Ojibway could hunt and fish on the lands until they were wanted.  
 The Manitoban newspaper contains the following with respect to the negotiations of  
October 1, 1873:  
North-West Angle, Oct[ober] 1, 1873.  
Part 7. The 1873 Negotiations  
63  
The assembled Chiefs met the Governor this morning, as per agreement, and opened the proceedings  
of the day by expressing the pleasure they experienced at meeting the Commissioners on the present  
occasion. Promises had many times been made to them, and, said the speaker, unless they were now  
fulfilled they would not consider the broader question of the treaty.  
Mr. S.J. Dawson, one of the Commissioners, reciprocated the expression of pleasure used by the  
Chiefs through their spokesman. He had long looked forward to this meeting, when all matters  
relating to the past, the present, and the future, could be disposed of so as to fix permanently the  
friendly relations between the Indians and the white men. It was now, he continued, some years since  
the white men first came to this country – they came in the first place at the head of a great military  
expedition; and when that expedition was passing through the country all the chiefs showed  
themselves to be true and loyal subjects – they showed themselves able and willing to support their  
Great Mother the Queen. Subsequently, when we began to open up the road, we had to call upon the  
Indians to assist us in doing so, and they [always] proved themselves very happy to help in carrying  
out our great schemes. He was, he continued, one of the Commission employed by the Government  
to treat with them and devise a scheme whereby both white men and Indians would be benefited. We  
made to the Indians the proposals we were authorized to make, and we have carried out these  
proposals in good faith. This was three years ago. What we were directed to offer we did offer, but  
the Indians thought it was too little, and negotiations were broken off. Since this I have done what  
was in my power to bring about this meeting with new terms, and consider it a very happy day that  
you should be assembled to meet the Governor of the Territory as representative of Her Majesty. He  
would explain to them the proposals he had to make. He had lived long amongst them and would  
advise them as a friend to take the opportunity of making arrangements with the Governor. When we  
arrange the general matters in question, should you choose to ask anything, I shall be most happy to  
explain it, as I am here all the time.  
The Chief in reply said his head men and young men were of one mind, and determined not to enter  
upon the treaty until the promises made in the past were fulfilled, they were tired of waiting. What  
the Commissioners called "small matters" were great to them, and were what they wished to have  
settled.  
The route that had been built through the country proved this, and the Commissioners promised  
something which they now wanted.  
This was taking the Commissioners on a new tack, but Mr. Dawson promptly undertook to answer  
the objections. He said all these questions had been discussed before; but if he had made any  
promises that remained unfulfilled, he would be happy to learn their nature. The Chief replied that all  
the houses on the line, and all the big boats on the waters, were theirs, and they wanted to be  
recompensed for them.  
Mr. Dawson continued, saying he was glad they had now come to a point on which they could deal.  
The Indians questioned the right of the Government to take wood for the steamers. This was a right  
which the speaker had all along told them was common to all Her Majesty's subjects. He then  
referred them to the Governor if they had anything more to say on that subject. Wood on which  
Indians had bestowed labor was always paid for; but wood on which we had spent our own labor was  
ours.  
His Excellency then addressed them at some length. He understood that they wanted to have the  
questions in which they were interested treated separately. This was not what he came there for.  
Wood and water were the gift of the Great Spirit, and were made alike for the good of both the white  
man and red man. Many of his listeners had come a long way, and he, too, had come a long way, and  
he wanted all the questions settled at once, by one treaty. He had a message from the Queen, but if his  
mouth was kept shut, the responsibility would rest on the Indians, and not with him if he were  
Part 7. The 1873 Negotiations  
64  
prevented from delivering it. He had authority to tell them what sum of money he could give them in  
hand now, and what he could give them every year: but it was for them to open his mouth. He  
concluded his remarks, which were forcibly delivered, with an emphatic "I have said."  
The Chief reiterated that he and his young men were determined not to go on with the treaty until the  
first question was disposed of. What was said about the trees and rivers was quite true, but it was the  
Indian's country, not the white man's. Following this the Governor told the Council that unless they  
would settle all the matters, the big and little, at once, he would not talk. He was bound by his  
Government, and was of the same mind to treat with them on all questions, and not on any one  
separately.  
On seeing His Excellency so firm, and feeling that it would not do to allow any more time to pass  
without coming to business the Chief asked the Governor to open his mouth and tell what  
propositions he was prepared to make.  
His Excellency then said – "I told you I was to make the treaty on the part of our Great Mother the  
Queen, and I feel it will be for your good and your children's. I should have been very sorry if you  
had shut my mouth, if I had had to go home without opening my mouth. I should not have been a true  
friend of yours if I had not asked you to open my mouth. We are all children of the same Great Spirit,  
and are subject to the same Queen. I want to settle all matters both of the past and the present, so that  
the white and red man will always be friends. I will give you lands for farms, and also reserves for  
your own use. I have authority to make reserves such as I have described, not exceeding in all a  
square mile for every family of five or thereabouts. It may be a long time before the other lands are  
wanted, and in the meantime you will be permitted to fish and hunt over them. I will also establish  
schools whenever any band asks for them, so that your children may have the learning of the white  
man. I will also give you a sum of money for yourselves and every one [of your wives and children]  
for this year . I will give you $10 [ten dollars] per head of the population, and for every other year $5  
[five dollars] a-head. But to the chief men, not exceeding two to each band, we will give $20 [twenty  
dollars] a-year for ever. I will give to each of you this year a present of goods and provisions to take  
you home, and I am sure you will be satisfied.  
After consultation amongst themselves, the Councillors went to have a talk about the matter …  
[Underlining emphasis added.]  
 Dawson's Notes re October 1, 1873 contain the following:  
1st Oct.  
"Pow-as-san" addressing Mr. Dawson said,  
The promises you have made we want to see fulfilled. Look to where the waters separate. The trees  
you have taken &c, are the property of those you see before you -  
Gov. Morris – will ask Mr. Dawson to reply to the question they have put. I am here for the purpose  
of arranging all matters with their nation.  
Mr. Dawson said,  
He was extremely happy to meet the chiefs on the present occasion. I have been trying for a long  
time to bring about this meeting as that the Indians could assemble before His Excellency the  
Governor and arrange matters for the future. Now that we have met here I will take occasion to relate  
the connections between us and the Indians. It is now some years since the first white man came  
through their territory - they came with a military expedition. When that expedition was passing  
through the country the Indians shewed themselves loyal subjects of Her Majesty. They extended  
the right hand of fellowship and gave every assistance in their power to the soldiers and their white  
friends. When we began to open the road, we entered into closer relations with the Indians and from  
the commencement of this works up to this time no serious breach was occurred with the Indians.  
Part 7. The 1873 Negotiations  
65  
Apart from carrying on the works I was one of the Commissioners appointed to make a treaty  
between the Indian and the whites. We made the offers as instructed by the Government in good  
faith what we were authorized to offer, we offered- they thought that too little and, in consequence,  
negotiations were broken off. Since then I have done all in my power to bring about what I see to-day  
– the Indians assembled to meet Her Majesty's representative, the Governor of these Territories.  
His Excellency will propose the terms he will make to them. I have travelled among them for many  
years and I now would give them the advice of a friend, one who has their interests at heart, not to let  
this opportunity pass of making a treaty. When they have arranged the general matters and introduced  
their Chiefs to the Governor I will be very happy to answer any questions, in detail, which may be  
asked.  
"Pow-as-san" said  
I have presented you the first question. All our warriors and young men want these matters settled  
first, other subjects we will leave to another time. We are tired waiting for what you promised long  
ago. What you call the small matter is what we wish settled. You have talked to our chiefs and made  
them promises.  
Mr. Dawson wishes to know what promises he has made? Mr. Pither was my associate when these  
things were talked of before, would like to know what particular promises they refer to.  
"Posh-knig-on" said  
We want to be recompensed for the large boats you have on the waters.--  
Mr. Dawson is extremely glad they have come to a point. They question the right of the Government  
to take wood for steamers. Wood and water are the common rights of all the subjects of Her  
Majesty and on this would refer them to His Excellency. Wood on which they bestowed labor they  
were paid for.  
Gov. Morris, said  
I understand that the nation here want separate questions. I am not here for that purpose. I tell them  
that the water is the gift of the Great Spirit and the wood belongs to red and white man alike. Many of  
you have come a long distance, so have I, to make a Treaty and shake hands. You have not only to  
think of yourselves but your wives and children and I have come to make a Treaty with you.  
I have a message from the Queen to you, but if you shut my mouth I cannot tell you. I am here to  
tell you what the Great Mother thinks. I have authority to tell you what sum of money I can give  
you now and hereafter and what presents I can make.  
"Posh-king-on" said  
All are of one mind. What you said with regard to trees and water we know is the Great Spirit's  
power. This is the Indians' not the white man's country, we are determined to finish the first question.  
Gov. Morris said  
If the Indians will not address him on the subjects he will not deal with them. He will deal with them  
on all questions or none.  
"Posh-King-on" said  
The warriors and headmen have talked it over and come to one mind. We would like to hear first  
what is the offer you have to make us. We do not wish to shut his mouth. We have made a Council.  
After he has made his offer we will present our demands.  
Gov. Morris said  
I told you I wanted to make a treaty with you on account of my mistress the Queen and on your  
account. That is the reason I am here. I would have been very sorry if you had shut my mouth and  
Part 7. The 1873 Negotiations  
66  
had let me return without opening it. We are all children of the same Great Spirit and I want to settle  
all matters so that the white and red men will always be friends. I want to have lands for farms  
reserved for your own use so that the white man cannot interfere with them. 1 square mile for every  
family of 5 or thereabouts. It may be a long time before the other lands are wanted and you will have  
the right to hunt and fish over them until the white man wants them. I am glad to learn that some of  
you wish your children to learn the [?] of the white man and, on application of a Band, a school will  
be established. I am authorized to give you a present of goods and provisions to take home with you  
after a treaty has been made. I am ready to give each of you a sum of money in your hands $10- per  
head this year. After this year we will agree to pay you $5 for every man, woman & child. I have told  
you what I have power to do and as I can't stay with you very long would be glad to know if you can  
meet me this afternoon or to-morrow morning – Each Chief is to get $25 and 3 Head men each $15.--  
"Posh-king-on" said  
Once more we come before you to let you know of one mind of what you have set before us. We  
have one mind to go and think over what you have said and I hope it will never end during our lives.  
Two Chiefs are sitting here who are the greatest chiefs and we are now going to hold a Council so  
that there may be no jealously among them.  
2nd Meeting then adjourned.— [Underlining added.]  
 Lovisek's report, Ex. 28, contains the following at pp. 84-86:  
Treaty negotiations finally commenced on October 1, 1873 but not until Morris threatened the  
Saulteaux that he would return to Fort Garry if they did not meet by that date. At the assembly of  
October 1, 1873, Morris explained his purpose by making an opening offer which was translated by  
George McPherson, who, according to Morris, was "an intelligent half-breed trader whose services I  
secured - Mr. Chastelain, the Government Interpreter, was also present."  
Morris stated that the Indians had selected three spokesmen and an Indian reporter: "whose duty was  
to commit to memory all that was said." The Saulteaux had also secured the services of Mr. Joseph  
Nolin of Pointe de Chene. Also present were Joseph's two brothers, Charles and August.  
The Saulteaux spokesperson said that they would not discuss the treaty until issues concerning the  
Dawson Route were settled. These issues involved promises made by Dawson which the Saulteaux  
said were not kept. The Saulteaux also said that they had not been paid for the wood used in building  
steamers or for the use of the Dawson route itself. Mr. Dawson responded that he had paid them for  
cutting wood but asserted a common right to the use of the wood and the waterway. Why Dawson  
took this apparently uncompromising position on wood has been interpreted as an "unpalatable  
compromise" that may have been an attempt to silence "further accusations against his [Dawson's]  
past handling of Native affairs from either the Native or non-Native side…."  
Dawson then asked the Saulteaux what promise had not been kept. According to Morris, the  
Saulteaux were unable to name any promises which had not been kept, however, the Saulteaux may  
or may not have been given time to respond before Morris through his translator, George McPherson,  
launched into his opening offer.  
Resources (such as wood and minerals) and tolls in the form of payments and presents for use of the  
right of way were issues of great and long standing importance to the Saulteaux in the previous failed  
treaty negotiations….  
…
The taking of wood by Euro-Canadians was a constant complaint of the Saulteaux, and was remarked  
upon by observers like Reverend Grant in 1872 and Burton Marshall in 1872, when not raised by the  
Saulteaux themselves.  
Part 7. The 1873 Negotiations  
67  
 Lovisek gave evidence that gleaning Ojibway understanding of the Harvesting promise  
includes consideration of differences between Euro-Canadian and Ojibway discourse. Unlike the  
Ojibway, the Commissioners used a manner of communication similar to present day Euro-  
Canadian discourse, in which the absence of an expression of disagreement is sometimes  
assumed to suggest a lack of disagreement. In Ojibway discourse, silence or absence of open  
express disagreement is not a basis for assuming Ojibway assent. They were extremely polite  
and would not voice objections in the form of outright denial or rejection. Instead, they would  
typically change the subject or even make a "contradictory statement of agreement." For  
example, on October 2, the Ojibway agreed with Morris' earlier statement that they owned the  
water and wood in their territory in common with Canada but later said it is our wood and water.  
 She noted that although the Ojibway did not directly challenge Morris' statements that  
wood and water were the common rights of all the subjects of Her Majesty, they did assert that  
the country was their country and the trees and the water were theirs. She gave evidence that  
instead of saying to Morris, "You are wrong about the wood and water," the Ojibway responded  
in 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 white  
man's.  
 Lovisek noted that during the negotiations, Morris never clearly told the Ojibway what he  
wanted from them. He did not use phrases such as "if you sell us your lands" or "if you give up  
your lands" then "I will do certain things for you." Like Dawson, he said he wanted to settle "all  
matters of the past and the present, so that the white and red man will always be friends." She  
opined that the Ojibway would not have understood from what he said that he was seeking a  
surrender of the right to harvest renewable natural resources on those lands.  
 Von Gernet gave evidence that an explanation was not necessary, since the Ojibway  
already understood what he wanted.  
 Lovisek's report (Ex. 28) contains the following at pp. 86-87  
In his opening offer Lieutenant-Governor Morris offered the Saulteaux a bundle of items including  
friendship, reserves, schools, money, presents of goods and provisions. One offer in the bundle of  
terms 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 will  
always be friends. I will give you lands for farms, and also reserves for your own use. I have  
authority to make reserves such as I have described, not exceeding in all a square mile for  
every 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 establish  
schools whenever any band asks for them, so that your children may have the learning of the  
white man. I will also give you a sum of money for yourselves and every one of your wives  
and children for this year. I will give you ten dollars per head of the population, and for  
every 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 of  
goods and provisions to take you home, and I am sure you will be satisfied. [Emphasis in  
report.]  
Morris' statement : "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" will be the only statement Morris makes during the  
Part 7. The 1873 Negotiations  
68  
three days of recorded oral negotiations that refers to the taking-up clause as drafted by Morris.  
Morris makes this reference as one of many offers which ranged from the intangible (friendship) to  
the tangible (farm lands, reserves, schools, money, payments for chiefs, goods and provisions).  
The Saulteaux responded to Morris' offer with silence. Silence is not an indication of consent for the  
Saulteaux. Consent for the Saulteaux was only possible after a council in which consensus was  
reached. As noted, Commissioner Dawson acknowledged this point in his 1868 report:  
Any one who, in negotiating with these Indians, should suppose he had mere children to deal  
with, would find himself mistaken. In their manner of expressing themselves, indeed, they  
make use of a great deal of allegory, and their illustrations may at times appear childish  
enough, but, in their actual dealings, they are shrewd and sufficiently awake to their own  
interests, and, the matter should be one of importance, affecting the general interests of the  
tribe, they neither reply to a proposition, nor make one themselves, until it is fully discussed  
and deliberated upon in Council by all the Chiefs  
Negotiations adjourned to the next day, October 2, 1873, presumably to allow the Saulteaux to  
discuss Morris' offer in council. …  
October 2, 1873  
 The Manitoba Free Press (Ex. 67/67A) reported the events of October 2 as follows:  
"Well, that cuss's paper pretty nigh busted the whole concern"  
This outside commentary accurately described the proceedings of today. At the meeting of the  
Council the Indians lost no time in explaining that the terms offered by the Governor were by no  
means acceptable. An Indian gentleman, stamping on the ground as he spoke, asked whether we  
heard the gold and silver rattling under his feet?  
No one had heard the metallic sound, so the Indian proceeded to give us a most gratifying account of  
what we should find as soon as we had made this treaty. With the views held by him there can be no  
doubt that he would make a most valuable immigration agent …, however, a friend of his … now  
stepped forward and presented a catalogue of articles which the Indians with one mind, as he said,  
had determined to have in addition to the terms offered by the Governor.  
This was the paper referred to above. Which was "well nigh busting the whole concern," for of course  
it was out of the question. Indeed, most persons smiled as the Governor read it out, for which levity a  
severe rebuke was administered by the Indian who presented the paper.  
The following is the contents of the paper which the governor read as the terms asked by the Indians:  
Here was included the content of the 1869 Demands set out earlier. The Manitoba Free Press  
report continued as follows:  
…
It is not necessary to say much about this averment. That cuss's paper is certainly the best way of  
regarding it.  
As the Indians were departing however, one chief stepped forward and said that he and his band were  
prepared to accept the terms offered by the Governor if a few things which the Indians could not  
otherwise obtain were given them. These were principally agricultural implements and wants which  
the white man is only too glad to supply. Then came the passage of arms between Mr. Dawson and  
 
Part 7. The 1873 Negotiations  
69  
this Shebandowan Indian – Blackstone. The effect of which was very felicitous, and the Council then  
broke up for the purpose of enabling the Indians once more to consider the matter.  
The Governor told them that he was not permitted to accede to their demands, was … departing if  
they did not accept his terms, and advised them strongly for the sake of their families to accept what  
was offered them. …  
 The Manitoban report (again showing Morris' additions in bold and deletions in italics as  
before) contains the following:  
THIRD DAY. [Oct 2]  
Proceedings were opened at 11 [eleven] o'clock by the Governor announcing that he was ready to  
hear what the Chiefs had to say. The Fort Frances Chief acted as spokesman [assisted by another  
Chief, Powhassan].  
Ma-ni-to-bah-sis [Ma-we-do-pe-nais] – I now lay down before you the opinions of those you have  
seen before. We think it a great [th]ing to meet you here. What we have heard yesterday, and as you  
represented yourself, you said the Queen sent you here, the way we understood you as a  
representative of the Queen. All this is our property where you have come. We have understood you  
yesterday that her Majesty has given you the same power and authority as she has, to act in this  
business; you said the Queen gave you her goodness, her charitableness in your hands. This is what  
we think, that the Great Spirit has planted us on this ground where we are… We think where we are  
is our property. I will tell you what he said to us when he [he] planted us here; the rules that we  
should follow –us Indians – He has given us rules that we should follow to [] govern [us] rightly. We  
have understood you that you have opened your charitable heart to us like a person taking off his  
garments and throwing them to all of us here. Now, first of all, I have a few words to address to this  
gentleman (Mr. Dawson). When he understood rightly what was my meaning yesterday, he threw  
himself on your help. I think I have a right to follow him to where he flew when I spoke to him on the  
subject yesterday. We will follow up the subject from the point we took it up. I want to answer what  
we heard from you yesterday, in regard to the money that you have promised us yesterday to each  
individual. I want to talk about the rules that we had laid down before. It is four years back since they  
[we] have made these rules. …a Council that has been agreed upon by all the Indians. I do not wish  
that I should be regarded [required] to say twice what I am now going to lay down. We ask $15  
[fifteen] dollars for all that you see, and for the children that are to be born in future. This year only  
we ask for $15 [fifteen dollars]; years after $10 [ten dollars]; our Chiefs $50 [fifty dollars] per year  
for every year [and other demands of large amounts in writing, say $125,000 yearly].  
Another Chief – I take my standing point from here. Our councillors have in Council come to this  
conclusion, that they should have $20 [twenty dollars] each; our warriors, $15 [fifteen dollars]; our  
population, $15 [fifteen dollars]. We have now laid down the conclusion of our Councils by our  
decisions. We tell you our wishes are not divided. We are all of one mind. (Paper put in before the  
Governor for these demands.) [The 1869 Demands were reproduced but are omitted here]:  
…
[Lake Seul] Chief – I now let you know the opinions of us here. We would not wish that anyone  
should smile at our affairs, as we think our country is a large matter to us. If you grant us what is  
written on that paper, then we will talk about the reserves; we have decided in Council for the benefit  
of those that will be born hereafter. If you do so the treaty will be finished, I believe.  
Governor – I quite agree that this is no matter to smile at. I think that the decision of to-day is one  
that affects yourselves and your children after, but you must recollect that this is the third time of  
negotiating. If we do not shake hands and make our Treaty to-day, I do not know when it will be  
done, as the Queen's Government will think you do not wish to treat with her. You told me that you  
understood that I represented the Queen's Government to you and that I opened my heart to you, but  
you must recollect that if you are a Council there is another great Council that governs a great  
Part 7. The 1873 Negotiations  
70  
Dominion, and they hold their councils the same as you hold yours. I wish to tell you that I am a  
servant of the Queen. I cannot do my own will; I must do hers. I can only give you what she tells me  
to give you. I am sorry to see that your hands were very wide open when you gave me this paper. I  
thought what I promised you was just, kind and fair between the Queen and you. It is now three years  
we have been trying to settle this matter. If we do not succeed to-day I shall go away feeling sorry for  
you and for your children that you could not see what was good for you and for them. I am ready to  
do what I promised you yesterday. My hand is open and you ought to take me by the hand and say,  
"yes, we accept of your offer." I have not the power to do what you ask of me. I ask you once more to  
think what you are doing, and of those you have left at home, and also of those that may be born yet,  
and I ask you not to turn your backs on what is offered to you, and you ought to see by what the  
Queen is offering you that she loves her red subjects as much as her white. I think you are forgetting  
one thing, that what I offer you is to be while the water flows and the sun rises. You know that in the  
other country [United States] they only pay the Indian for 20 [twenty] years, and you come here to-  
day and ask for ever more than they get for 20 [twenty] years. Is that just? I think you ought to accept  
my offer, and make a treaty with me as I ask you to do. I only ask you to think for yourselves, and for  
your families, and for your children and children's children, and I know [that] if you do that you will  
shake hands with me to-day.  
Chief – I lay before you our opinions. Our hands are poor but our heads are rich, and it is riches that  
we ask so that we may be able to support our families as long as the sun rises and the water runs.  
Governor – I am very sorry; you know it takes two to make a bargain; you are agreed on the one side,  
and I for the Queen's Government on the other. I have to go away and report that I have to go without  
making terms with you. [I doubt if] the Commissioner[s] will be sent again to assemble this nation. I  
have only one word more to say; I speak to the Chief and to the head men to recollect those behind  
them, and those they have left at home, and not to go away without accepting such liberal terms and  
without some clothing.  
Chief – My terms I am going to lay down before you; the decision of our Chiefs; ever since we came  
to a decision you push it back. The sound of the rustling of the gold is under my feet where I stand;  
we have a rich country; it is the Great Spirit who gave us this; where we stand upon is the Indians'  
property, and belongs to them. If you grant us our requests you will not go back without making the  
treaty.  
Another Chief – We understood yesterday that the Queen had given you the power to act upon, that  
you could do what you pleased, and that the riches of the Queen she had filled your head and body  
with, and you had only to throw them round about; but it seems it is not so, but that you have only  
half the power that she has, and that she has only half filled your head.  
Governor – I do not like to be misunderstood. I did not say yesterday that the Queen had given me all  
the power; what I told you was that I was sent here to represent the Queen's Government, and to tell  
you what the Queen was willing to do for you. You can understand very well; for instance, one of  
your great chiefs asks a brave to deliver a message, he represents you, and that is how I stand with the  
Queen's Government.  
Chief – It is your charitableness that you spoke of yesterday – Her Majesty's charitableness that was  
given you. It is our chiefs, our young men, our children and great grand-children, and those that are to  
be born, that I represent here, and it is for them I ask for terms. The white man has robbed us of our  
riches, and we don't wish to give them up again without getting something in their place.  
Governor – For your children, grandchildren, and children unborn, I am sorry that you will not accept  
of my terms. I shall go home sorry, but it is your own doing; I must simply go back and report the  
fact that you refuse to make a treaty with me.  
Part 7. The 1873 Negotiations  
71  
Chief – You see all our chiefs before you here as one mind; we have one mind and one mouth. It is  
the decision of all of us; if you grant us our demands you will not go back sorrowful; we would not  
refuse to make a treaty if you would grant us our demands.  
Governor – I have told you already that I cannot grant your demands; I have not the power to do so. I  
have made you a liberal offer, and it is for you to accept or refuse it as you please.  
Chief – Our chiefs have the same opinion; they will not change their decision.  
Governor – Then the Council is at an end.  
Chief [(of Lac Seul)] – I understand the matter that he asks; if he puts a question to me as well as to  
others, [and] I say so as well as the rest. We are the first that were planted here; we would ask you to  
assist us with every kind of implement to use for our benefit, to enable us to perform our work; a little  
of everything and money. We would borrow your cattle; we ask you this for our support; I will find  
whereon to feed them. The waters out of which you sometimes take food for yourselves, we will lend  
you in return. If I should try to stop you – it is not in my power to do so; even the Hudson's Bay  
Company – that is a small power – I cannot gain my point with it. If you give what I ask, the time  
may come when I will ask you to lend me one of your daughters and one of your sons to live with us;  
and in return I will lend you one of my daughters and one of my sons for you to teach what is good,  
and after they have learned, to teach us. If you grant us what I ask, although I do not know you, I will  
shake hands with you. This is all I have to say.  
Governor – I have heard and I have learned something. I have learned that you are not all of one  
mind. I know that your interests are not the same – that some of you live in the north far away from  
the river; and some live on the river, and that you have got large sums of money for wood that you  
have cut and sold to the steamboats; but the men in the north have not this advantage. What the Chief  
has said is reasonable; and should you want goods I mean to ask you what amount you would have in  
goods, so that you would not have to pay the traders' prices for them. I wish you were all of the same  
mind as the Chief who has just spoken. He wants his children to be taught. He is right. He wants to  
get cattle to help him to raise grain for his children. It would be a good thing for you all to be of his  
mind, and then you would not go away without making this treaty with me.  
Blackstone (Shebandowan) – …The people at the height of land where the waters came down from  
Shebandowan to Fort Frances, are those who have appointed me to lay before you our decision. We  
are going back to hold a Council."  
…
Governor – "I think the nation will do well to do what the Chief has said. I think he has spoken  
sincerely, and it is right for them to withdraw and hold a Council among themselves."  
…
The Council broke up at this point, and it was extremely doubtful whether an agreement could be  
come to or not.[Bolding added.] The Rainy River Indians were careless about the treaty, because  
they could get plenty of money for cutting wood for the boats, but the northern and eastern bands  
were anxious for one. The Governor decided that he would make a treaty with those bands that were  
willing to accept his terms, leaving out the few disaffected ones.  
[Underlining added. Bolding added where indicated. Most bolding and all italics in original.]  
 Dawson's notes of the October 2 proceedings contained the following:  
In regards to the money offered to each I will now answer. Four years ago they made a point and they  
wish to abide by it, it is a council agreed in by all the Indians. I don't wish to say twice what I now  
speak. We ask $15 for all that you see & for the children that are to be born in the future. This year  
only we ask $15, years after $10, our chiefs $50.  
Part 7. The 1873 Negotiations  
72  
"Manito-biness" said  
We have councilled in regard to this. we have come to the conclusion that $20 for chiefs $15 for our  
warriors and lieutenants.- We have now laid down the conclusion of our council and all are of one  
mind.  
"Can-ta-go-wa-[?]iny" said  
If you grant us what is asked for in that paper we will talk about the reserves. If you grant us what is  
written there, to-day the treaty will be made.-  
Gov. Morris said  
If we don't shake hands to-day I don't know when it will be done. You told me that you understood I  
represented the Queen here and that I had opened my heart. You must remember there is another  
council larger than yours and governed as yours. I am only a servant of the Queen and can only give  
what she tells me. I am sorry to say that your hands were very wide open when you gave me this  
paper. I thought that what I promised you was just and fair between the Queen and you. Three years  
we have been trying to settle this matter. If we don't succeed to-day I will go away sorry for you and  
your children. I am ready to do what I promised yesterday and you ought to take me by the hand and  
accept. I have no power to do more. I ask you once more to think what you are doing and not to turn  
your backs on what I offered justly. I think you are forgetting that what I offer you is while the water  
flows and the sun rises. You know that in the other Country they only pay for 20 years and now you  
ask as much for ever as they do for that time  
"Can-ta-go-wa-[?]iny" said  
I am come to lay before you the opinions of our chiefs. Our hands are [?] our [?] are rich and what  
we ask is to support our families as long as the waters run.  
Gov. Morris said  
It takes two to make a bargain. You wont accept my terms and I will be obliged to go away and tell  
my friends that your ideas were too rich, and I do not know that we shall ever assemble again to meet  
this nation. I have only one word more to say and speak to the chiefs and headmen, not to go away  
without agreeing to such favorable terms.--  
"Posh-king-on" said  
It was the Great Spirit that gave us this property and it belongs to the Indians. If you were to grant  
our requests we would make a treaty.  
"Canta-go-wa-[?]iny" said  
They understood yesterday that the Queen had given him all the power she had.  
Gov. Morris said  
I don't like to be misunderstood. I would be very sorry to say that the Queen had given me all her  
power. What I said was "to tell you what the Queen was willing to do for you".--One of our great  
Chiefs gives a Brave a message. He does as he is told. That is the way I stand.  
"Can-ta-go-wa-[?]iny" said  
We make this demand because Her Majesty has given you her charitableness. It is our chiefs – our  
warriors – our young men I represent here and it is for them we present our demands.  
Gov. Morris said  
I think for you and your children and am sorry for you. I will go back and report that you refuse to  
make a treaty with me.--  
Part 7. The 1873 Negotiations  
73  
"Can-ta-go-wa-[?]iny" said  
You see all our Chiefs before you. We are all of one mind about our demands. If you grant our  
demands you will not go back sorrowful. We would not refuse to make a treaty if you would grant  
them.  
Gov. Morris said  
I have no power to grant your demands, act as you please.  
"Can-ta-go-wa-[?]iny" said  
Our chiefs have the same opinion.  
Gov. Morris  
Then the Council is at an end.  
…
Meeting then adjourned.  
[Underlining added.]  
 Morris' Official Report dated October 14, 1873 contained the following concerning the  
October 2 proceedings:  
On the [1st] [2nd] October the chiefs again assembled and made a counter proposition, of which I enclose a  
copy, being the demand they have urged since 1869.[Bolding added.] I also enclose an estimate I had  
made of the money value of the demands amounting to $125,000 per annum. On behalf of the  
Commissioners I at once peremptorily refused the demand. The spokesmen returned to the chiefs who were  
arranged on benches, the people sitting on the ground behind them, and on their return they informed me  
that the chiefs, warriors and braves were of one mind, that they would make a treaty only if we acceded to  
their demand[s]. I told them if so the conference was over, that I would return and report that they had  
refused to make a reasonable treaty, that hereafter I would treat with those bands who were willing to treat,  
but that I would advise them to return to the Council and reconsider their determination before next  
morning, when, if not, I should certainly leave. This brought matters to a crisis. The chief of the Lac Seul  
band came forward to speak. The others tried to prevent him, but he was secured a hearing. He stated that  
he represented four hundred people in the north; that they wished a treaty; that they wished a schoolmaster  
to be sent them to teach their children the knowledge of the white man; that they had begun to cultivate the  
soil and were growing potatoes and Indian corn, but wished other grain for seed and some agricultural  
implements and cattle. This Chief spoke under evident apprehension as to the course he was taking in  
resisting the other Indians, and displayed much good sense and moral courage. He was followed by the  
Chief "Blackstone", who urged the other Chiefs to return to [the] Council and consider my proposals,  
stating that he was ready to treat, though he did not agree to my proposals or to those made to me. I then  
told them that I had known all along they were not united as they had said; that they ought not to allow a  
few chiefs to prevent a treaty, and that I wished to treat with them as a nation and not with separate bands  
as they would otherwise compel me to do, and therefore urged them to return to their council promising to  
remain another day to give them time for consideration.  
[Underlining added. Bolding added where indicated. Most bolding and all italics in original.]  
 Lovisek's report (Ex. 28) contains the following at pp 88-89:  
Treaty negotiations resumed the next day, October 2, 1873. It was now the Saulteaux's turn to present  
their terms for a treaty. The principal spokesperson, Chief Mawedopenais, countered Morris' offer by  
presenting him with a list of demands which had been prepared January 22, 1869 (and which had  
evidently surfaced at the previous treaty negotiations). The 1869 List of Demands included amongst  
other things, reference to items which indicate the importance the Saulteaux attached to hunting and  
fishing. Items 7, 8 and 13 of the 1869 List of Demands requested:  
7th.That every chief gets a double barrelled gun every four years, and every man gets one  
single barrel gun during the same period  
Part 7. The 1873 Negotiations  
74  
8th. That every chief gets 100 Ibs of powder, three hundred lbs of shot, flints and caps,  
according to the quantity of munitions every year -  
13th. That every married women gets fishing twine and cord line to make four nets every  
year -  
The 1869 List of Demands also stipulated that these and the other items would last: "forever, that is to  
say during all the time that an Indian will be alive in this part of the country." The List identified what  
the Saulteaux would accept from a treaty. The terms had not changed since 1869. The 1869 List of  
Demands makes no mention what if anything the Saulteaux were prepared to "give up" in return  
for the requested items.  
… [Underlining added.]  
 The Ojibway, asserting that they owned the Treaty 3 territory, presented their demands,  
emphasizing that the proposal they were making had been developed by their Council and  
represented the will of all the Ojibway. They emphasized that the 1869 Demands /the "rules"  
they had laid down four years earlier had been developed in "a Council … agreed upon by all the  
Indians."  
 On October 2, the Ojibway challenged Morris' authority:  
What we have heard yesterday, and as you represented yourself,you said the Queen sent you here, the  
way we understood you as a representative of the Queen. We have understood you yesterday that her  
Majesty has given you the same power and authority as she has, to act in this business; you said the  
Queen gave you her goodness, her charitableness in your hands ...  
 Lovisek, Von Gernet and Chartrand all agreed that when the Ojibway referred to Her  
Majesty having given Morris her power and authority, they were attempting to put Morris in a  
position where he could not reasonably refuse their demands.  
 On cross examination on January 26, 2010, Chartrand referred to Chief Mawedopenais'  
challenge to Morris' authority/his relationship with the Queen, as they were advancing a more  
aggressive demand. They were asserting that if Morris had the Queen's power, he could meet  
their demands.  
 It was in this context that Morris said, "You must recollect that if you are a Council, there  
is another great Council that governs a Great Dominion and they hold their Councils the same as  
you hold yours."  
 The experts disagreed about what the Ojibway understood from that statement. The  
details of that disagreement are detailed and analyzed later in these Reasons in the sections on  
the Identity of the Treaty Parties and Mutual Intention.  
 On October 2, the Ojibway continued to press their 1869 Demands.  
 As noted earlier, there was disagreement among the experts as to whether the 1869  
Demands had been presented to representatives of Canada before 1873 and whether they were in  
connection with a surrender of right of way and land in the vicinity of the right of way, or with  
all of the Treaty 3 lands. The disagreements among the experts are summarized and analyzed  
later in these Reasons in the section on the 1869 Demands.  
Part 7. The 1873 Negotiations  
75  
 When the Chiefs continued to press the 1869 Demands on October 2, there was a near  
impasse.  
 However, after Chief Sa-katche-way indicated that he might be open to making a treaty,  
Morris said:  
I have heard you and learned something. I know that you are not all of one mind. I know that your  
interests are not the same – that some of you live in the north far away from the river; and some live  
on the river, and that you have got large sums of money for wood that you have cut and sold to the  
steamboats; but for the men in the north have not this advantage.  
Morris, Ex. 9, pp. 63-64  
 Blackstone recommended a break in the negotiations for the Ojibway to hold a Council.  
Morris acceded to that suggestion. He also threatened to treat with any bands who were prepared  
to enter into a treaty, whether or not others were prepared to do so.  
 When the formal negotiations ended for the day, "it was extremely doubtful whether an  
agreement could be come to or not." The Rainy River Indians were "careless about the treaty."  
The Ojibway withdrew to their own Council, which was attended, at least for a portion of the  
time, by a number of Métis, including McKay from the Treaty Commissioners' party and Nolin.  
The council lasted all night. (Lovisek's report, Ex. 28, at pp 91-92.)  
October 3, 1873  
 Morris' Official Report dated October 14, 1873 contains the following:  
… [N]ext morning, having received a message from M. Charles Nolin, a French half breed, that they  
were becoming more amenable to reason, I requested the Hon. James McKay (who went to the Angle  
three times to promote this Treaty), Charles Nolin and Pierre Levailler, to go down to the Indian  
Council, and, as men of their own blood, give them friendly advice. They accordingly did so and  
were received by the Indians, and in about half an hour afterwards, were followed by Messrs.  
Provencher and St. John, who also took part in the interview with the Council of Chiefs.  
[Emphasis added.]  
 The Shorthand Reporter's account, published in the Manitoban (Winnipeg) on October  
18, 1873 includes the following with respect to the proceedings on October 3, 1873, (again  
showing Morris' additions/substitutions in bold, his deletions in italics.) Where I have added  
bolding I have put a note to that effect:  
[Indian Treaty Closing Proceedings]  
When the council broke up last (Thursday) night 3rd October [sic] [this addition by Morris was  
incorrect as Oct. 3, 1873 was a Friday], it looked very improbable that an understanding could be arrived  
at, but the firmness of the Governor, and the prospect that he would make a treaty with such of the bands as  
were willing to accept his terms, to the exclusion of the others, led them to reconsider their demands. The  
Hon. James McKay, and Messrs. Nolin, Genton, and Leveilee were invited in to their Council, and after a  
most exhaustive discussion of the circumstance in which they were placed, it was resolved to accept the  
Governor's terms, with some modifications. [Bolding added.] Word was sent to this effect, and at 11  
[eleven] o'clock on Friday, conference was again held with His Excellency.  
…
Chief – I am going to tell you the decision of all before you. I want to see your power and learn  
the most liberal terms that you can give us.  
 
Part 7. The 1873 Negotiations  
76  
Governor – I am glad to meet the chiefs, and I hope it will be the last time of our meeting. I hope  
we are going to understand one another to-day, and that I can go back and report that I left my Indian  
friends contented, and that I have put into their hands the means of providing for themselves and their  
families at home; and now I will give you my last words. When I held out my hands to you at first, I  
intended to do what was just and right, and what I had the power to do at once, - not to go backwards and  
forwards, but at once to do what I believe is just and right to you. I was very much pleased yesterday with  
the words of the chief of Lac Seul. I was glad to hear that he had commenced to farm and to raise things for  
himself and family, and I was glad to hear him ask me to hold out my hand. I think we should do  
everything to help you by giving you the means to grow some food, so that if it is a bad year for fishing and  
hunting you may have something for your children at home. If you had not asked it, the Government would  
have done it all the same, although I had not said so before. I can say this, that when a band settles down  
and actually commences to farm on their lands, the Government will agree to give two hoes, one spade, one  
scythe, and one axe for every family actually settled; one plough for every ten families; five harrows for  
every twenty families; and a yoke of oxen, a bull and four cows for every band; and enough barley, wheat  
and oats to plant the land they have actually broken up. This is to enable them to cultivate their land, and it  
is to be given them on their commencing to do so, once for all. There is one thing that I have thought over,  
and I think it is a wise thing to do. That is, to give you ammunition, and twine for making nets, to the extent  
of $1,500 per year, for the whole nation, so that you can have the means of procuring food – Now, I will  
mention the last thing that I can do. I think that the sum I have offered you to be paid after this year for  
every man, woman and child now, and for years to come, is right and is the proper sum. I cannot [will not]  
make any change in that, but we are anxious to show you that we have a great desire to understand you –  
that we wish to do the utmost in our power to make you contented, so that the White and the Red man will  
always be friends. This year, instead of $10 [ten dollars] we will give you $12 [twelve dollars], to be paid  
you at once as soon as we sign the Treaty. This is the best I can do for you. I wish you to understand we do  
not come here as traders, but as representing the Crown, and to do what we believe is just and right. We  
have asked in that spirit, and I hope you will meet me in that spirit and shake hands with me to-day and  
make a treaty forever. I have no more to say.  
Chief – I wish to ask some points that I have not properly understood. We understood  
[understand] that our children are to have $2 [two dollars] extra. Will the $2 [two dollars] be paid to our  
principal men as well? And these things that are promised will they commence at once and will we see it  
year after year?  
Governor – I thought I had spoken fully as to everything, but I will speak again. The ammunition  
and twine will be got at once for you, this year, and that will be for every year. The Commissioner will see  
that you get this at once; with regard to the things to help you to farm, you must recollect, in a very few  
days the river will be frozen up here and we have not got these things here now. But arrangements will be  
made next year to get these things for those who are farming, it cannot be done before as you can see  
yourselves very well. Some are farming, and I hope you will all do so.  
Chief – One thing I did not say that is most necessary – we want a cross-cut saw, a whip saw,  
grindstone and files.  
Governor – We will do that, and I think we ought to give a box of common tools to each Chief of  
a Band.  
Chief – Depending upon the words [that] you have told us, and stretched out your hands in a  
friendly way, I depend upon that. One thing more we demand – a suit of clothes to all of us.  
Governor – With regard to clothing, coats [suits] will be given to the chiefs and head men, and as  
to the other Indians there is a quantity of goods and provisions here that will be given them at the close of  
the treaty. The coats of the Chiefs will be given every three years.  
Chief – Once more; powder and shot will not go off without guns. We ask for guns.  
Governor – I have shown [shewn] every disposition to meet your views [view], but what I have  
promised is as far as I can go.  
Chief – My friends, listen to what I am going to say, and you, my brothers. We present you now  
with our best and our strongest compliments. We ask you not to reject some of our children who have gone  
out of our place; they are scattered all over, a good tasted meat hath drawn them away, and we wish to draw  
them all here and be contented with us.  
Part 7. The 1873 Negotiations  
77  
Governor – If your children come and live here, of course they will become part of the population,  
and be as yourselves.  
Chief – I hope you will grant the request that I am going to lay before you. I do not mean those  
that get paid on the other side of the line, but some poor Indians who may happen to fall in our road. If you  
will accept of these little matters, the treaty will be at an end. I would not like that one of my children  
should not eat with me, and receive the food that you are going to give me.  
Governor – I am dealing with British Indians and not American Indians; after the treaty is closed  
we will have a list of the names of any children of British Indians that may come in in [during] two years  
and be ranked with them; but we must have a limit somewhere.  
…
Chief – I hope you will not drop the question; we have understood you to say that you came here  
as a friend, and represented your charitableness, and we depend upon your kindness. You must remember  
that our hearts and our brains are like paper; we never forget. There is one thing that we want to know. If  
you should get into trouble with the nations, I do not wish to walk out and expose my young men to aid you  
in any of your wars.  
Governor – The English never call the Indians out of their country to fight their battles. You are  
living here and the Queen expects you to live at peace with the white men and your red brothers, and with  
other nations.  
Another Chief – I ask you a question --I see your roads here passing through the country, and  
some of your boats – useful articles that you use for yourself. Bye and bye we shall see things that run  
swiftly, that go by fire – carriages – and we ask you that us Indians may not have to pay their passage on  
these things, but can go free.  
Governor – I think the best thing I can do is to become an Indian. I cannot promise you to pass on  
the railroad free, for it may be a long time before we get one; and I cannot promise you any more than other  
people.  
Chief – I must address my self to my friend here, as he is the one that has the Public Works.  
Mr. Dawson – I am always happy to do anything I can for you. I have always given you a passage  
on the boats when I could. I will act as I have done though I can give no positive promise for the future.  
Chief – We must have the privilege of travelling about the country where it is vacant.  
[Bolding added.]  
Mr. McKay – Of course, I told them so. [Bolding added]  
Chief – Should we discover any metal that was of use, could we have the privilege of putting our  
own price on it?  
Governor – If any important minerals are discovered on any of their Reserves the minerals will be  
sold for their benefit with their consent, but not on any other land that discoveries may take place upon; as  
regards other discoveries, of course, the Indian is like any other man. He can sell his information if he can  
find a purchaser.  
Chief – It will be as well while we are here that everything should be understood properly between  
us. All of us – those behind us – [wish to] have their reserves marked out, which they will point out, when  
the time comes. There is not one tribe here who has not laid it out.  
Commissioner Provencher (the Governor being temporarily absent) – As soon as it is convenient  
to the Government to send surveyors to lay out the reserves they will do so, and they will try to suit every  
particular band in this respect.  
Chief – We do not want anybody to mark out our reserves, we have already marked them out.  
Commissioner – There will be another undertaking between the officers of the Government and  
the Indians among themselves for the selection of the land; they will have enough of good farming land,  
they may be sure of that.  
Chief – Of course, if there is any particular part wanted by the public works they can shift us. I  
understand that; but if we have any gardens through the country, do you wish that the poor man should  
throw it right away?  
Commissioner – Of course not.  
Chief – These are matters that are the wind-up. I begin now to see how I value the proceedings. I  
have come to this point, and all that are taking part in this treaty and yourself. I would wish to have all your  
Part 7. The 1873 Negotiations  
78  
names in writing handed over to us. I would not find it to my convenience to have a stranger here to  
transact our business between me and you. It is a white man who does not understand our language that is  
taking it down. I would like a man that understands our language and our ways. We would ask your  
Excellency as a favor to appoint him for us.  
Governor – I have a very good feeling to Mr. C. Nolin, he has been a good man here; but the  
appointment of an Agent rest[s] with the authorities at Ottawa and I will bring your representation to them,  
and I am quite sure it will meet with the respect due to it.  
Chief – As regards the fire water, I do not like it and I do not wish any house to be built to have it  
sold. Perhaps at times if I should be unwell I might take drop just for medicine; and shall any one insist on  
bringing it where we are, I should break the treaty.  
Governor – I meant to have spoken of that myself, I meant to put it in the Treaty. He speaks good  
about it. The Queen and her Parliament in Ottawa here [have] passed a law prohibiting the use of it in her  
[this] territory, and if any shall be brought in for the use of you as medicine it can only come in by my  
permission.  
Chief – Why we keep you so long is that it is our wish that everything should be properly  
understood between us.  
Governor – That is why I am here. It is my pleasure, and I want when we once shake hands that it  
should be forever.  
Chief – That is the principal article. If it was in my midst the fire water would have spoiled my  
happiness, and I wish it to be left far away from where I am. All the promises that you have made me, the  
little promises and the money you have promised, when it comes to me year after year – should I see that  
there is anything wanting, th[r]ough the negligence of the people who [that] have to see after these things,  
I trust it will be in my power to put them in prison.  
Governor – The ear of the Queen's Government will always be open to hear the complaints  
of her Indian people, and she will deal with her servants that do not do their duty in a proper  
manner. [Bolding added]  
Chief – Now, you have promised to give us all your names. I want a copy of the treaty that will  
not be rubbed off, on parchment.  
Governor – In the meantime I will give you a copy on paper, and as soon as I get back I will get  
you a copy on parchment.  
…
Chief – You have come before us with a smiling face, you have shown us great charity – you have  
promised the good things; you have given us your best compliments and wishes, not only for once but for  
ever; let there now for ever be peace and friendship between us. It is the wish of all that where our reserves  
are peace should reign, that nothing shall be there that will disturb peace. Now, I will want nothing to be  
there that will disturb peace, and will put every one that carries arms, - such as murderers and thieves –  
outside, so that nothing will be there to disturb our peace.  
Governor – The Queen will have policemen to preserve order, and murderers and men guilty of  
crime will be punished in this country just the same as she punishes them herself.  
…
Chief – I will tell you one thing.-- You understand me now, that I have taken your hand firmly and  
in friendship. I repeat twice and [that] you have done so, that these promises that you have made, and the  
treaty to be concluded, let it be as you promise, as long as the sun rises over our head and as long as the  
water runs. One thing I find, that deranges a little my kettle. In this river, where food used to be plentiful  
for our subsistence, I perceive it is getting scarce. We wish that the river should be left as it was formed  
from the beginning – that nothing be broken.  
Governor – This is a subject that I cannot go into [promise].  
Mr. Dawson – Anything that we are likely to do at present will not interfere with the fishing, but  
no one can tell what the future may require, and we cannot enter into any engagement.  
Chief – We wish the Government would assist us in getting a few boards for some of us who are  
intending to put up houses this fall, from the mill at Fort Frances [Francis].  
Governor – The mill is a private enterprise, and we have no power to give you boards from that.  
Part 7. The 1873 Negotiations  
79  
Chief – I will now show you a medal that was given to those who made a treaty at Red River by  
the Commissioner. He said it was silver, but I do not think it is. I should be ashamed to carry it on my  
breast over my heart. I think it would disgrace the Queen my Mother to wear her image on so base a metal  
as this. [Here the Chief held up the medal and struck it with the back of his knife. The result was anything  
but the "true ring" and made every man ashamed of the petty meanness that had been practised.] Let the  
medals you give us be of silver – medals that shall be worthy of the high position our Mother the Queen  
occupies.  
Governor – I will tell them at Ottawa what you have said, and how you have said it.  
Chief – I wish you to understand you owe the treaty much to the half-breeds.  
Governor – I know it. I sent some of them to talk with you, and am proud that all the half-breeds  
from Manitoba, who are here, gave their Governor their cordial support.  
The business of the treaty having now been completed, the Chief Mawedopenais, who, with  
Powhassan, had with such wonderful tact carried on the negotiations, stepped up to the Governor and said--  
Now you see me stand before you all; what has been done here to day has been done openly  
before the Great Spirit, and before the nation, and I hope that I may never hear any one say that this treaty  
has been done secretly; and now, in closing this council, I take off my glove, and in giving you my hand, I  
deliver over my birth-right and lands; and in taking your hand, I hold fast all the promises you have made,  
and I hope they will last as long as the sun goes round and the water flows, as you have said.  
The Governor then took his hand and said: I accept your hand and with it the lands, and will keep  
all my promises, in the firm belief that the treaty now to be signed will bind the Red man and the white  
together as friends forever.  
A copy of the treaty was then prepared and duly signed, after which a large amount of presents,  
consisting of pork, flour, clothing, blankets, twine, powder and shot, etc., were distributed to the several  
bands represented on the ground.  
On Saturday, Mr. Pether, Local Superintendent of Indian affairs at Fort Frances [Francis], and  
Mr. Graham of the Government Works, began to pay the treaty money – an employment that kept them  
busy far into the night. Some of the Chiefs received as much as $170 [one hundred and seventy dollars]  
for themselves and families. [The total amount disbursed was $.]  
…
One very wonderful thing that forced itself on the attention of every one was the perfect order that  
prevailed throughout the camp, and which more particularly marked proceedings in the council. Whether  
the demands put forward were granted by the Governor or not, there was no petulance, no ill-feeling,  
evinced; but everything was done with a calm dignity that was pleasing to behold, and which might be  
copied with advantage by more pretentious deliberative assemblies.  
…
The Governor and party left on Monday morning, the troops, under command of Capt. [Captain]  
McDonald … having marched to Fort Garry on Saturday morning.  
[Underlining added. Bolding added where indicated. Most bolding and all italics in original.]  
 Dawson's Notes for October 3 contain the following:  
Oct. 3rd  
"Manitobiness," said, I am going to lay before you the opinions of those you see before you.  
We want to see your power – we want to know your most liberal terms and give us your utmost. This  
is all.  
Gov. Morris said: I am glad to meet the chiefs once more and I hope it will be the last meeting.  
That I can go back and report that I have put in the hands of my Indian friends what will make them  
and their children more comfortable. I will give you my last words. When I held out my hand at the  
first I did not want to bargain with you but to give you what was right and just. I was very much  
pleased yesterday with the words of Sa-ga-the-way and that his people had begun to farm and that he  
wishes me to hold out my hand to help them. I think we should do everything to help you to grow  
food so that in case of ill success in fishing & hunting you would have something for those at home.  
If you had not asked it the Government would have done it all the same. When a Band settles down &  
Part 7. The 1873 Negotiations  
80  
actually begins to farm the Government will give them hoes &c. bull & cows enough to begin  
farming with, 2 hoes for every family, 1 spade, 1 plough for 10 families, 5 harrows for 20 families, a  
yoke of oxen for every Band, a Bull & 4 Cows for every Band, a scythe & axe for every family.  
Barley, Oats &c. enough to plant the land broken up. This is to encourage them and will be given on  
their commencing to cultivate the lands. Mr. Provencher has suggested, and I approve of it, that we  
will be able to give you $1500 - a year in twine & ammunition. Now I will mention the last thing I  
can do. I think the sum I have offered after this year and for years to come is right. I cannot make any  
change in that. But we are anxious to show you that we understand you and now for this year we are  
prepared to pay you $12. This is the best I can do for you.  
I wish you to understand we did not come here to bargain but to act for the crown and hope  
that you will meet me to-day and make a treaty with our Queen for ever. I have no more to say.  
"Manitobiness" said He wished to know if all the promises made to them should commence at  
once to be fulfilled?  
Gov. Morris said The ammunition & twine will be got this year and continued every year. The  
farming implements are not here and the waters will soon be frozen but next year these things will be  
got for those who are actually farming.  
"Manitobiness" There is one thing I don't see – a cross cut saw, a grindstone and an auger.  
Gov. Morris We will give a box of tools to each chief.-  
"Manitobiness" Depending on the words, you have told us, there is one thing we demand, a  
suit of clothes for all our people.  
Gov. Morris With regard to clothing. Coats will be given to Chiefs & head men and at the  
close of the Treaty a number of presents will be given. Coats to the Chiefs every 3 years.  
"Manitobiness" Powder & shot will not go off without guns. We want guns.  
Gov. Morris I have made every advance I could. I have no more power.  
"Manitobiness" My friends listen to what I am going to say. We present you now our best  
compliments. We ask you not to neglect some of our children who are scattered. We wish our  
children back again and we want you to count them with us.  
Gov. Morris If their children live here they will be counted in.  
"Manitobiness" Once more, I wish you to grant the request I make. In future I may see a  
person that may be in want, can I help him? I would not like that one of my children could not eat of  
the same food with me.  
Gov. Morris I am dealing with British and not with American Indians. Any children of British  
Indians who come in within 2 years will be received.-  
"Manitobiness" We wish that our half breed children should receive the same benefits as we  
do.  
Gov. Morris Would promise them that he would refer the matter to the Government.  
"Manitobiness" We have understood you to say you came here as a friend to show the Indians  
your kindness. Our memories are good. There is one thing we want, if you should get into trouble  
with other nations I do not wish to turn out with my warriors.  
Gov. Morris The Indians were never called upon to go out of their country and fight. They  
will be expected to live at peace with their neighbours.  
"Manitobiness" I ask my questions so freely that I thank you for your answer. Your road  
passes through our country, by and by carriages driven by fire will pass through and we want free  
passes.  
Gov. Morris Cannot promise them this.  
Mr. Dawson Would always be happy to do what he could to help the Indians.  
"Manitobiness" Would they have the privilege of travelling through the Country? -- Yes.  
[Bolding added.] -- If they should discover gold or silver would they have a right to it?  
Gov. Morris If minerals were found on the Reserve the mine would be administered for their  
benefit, otherwise, the Indians could not claim it.  
"Manitobiness" It will be good while we meet here that everything should be understood  
between us. We have all reserves which we will point out at the proper time.--  
Part 7. The 1873 Negotiations  
81  
Mr. Provencher The commissioner will come to a settlement with each one. The Govt would  
send surveyor to measure the land and the selection would be made between the Commissioner and  
themselves.  
"Manitobiness" We have small gardens here and there and hopes they will not be taken away.  
-- No -- These are the winding up matters. I would like to have the names in writing of those present  
at this Treaty. I have one point to lay before you. I would like to have a stranger here to look after the  
matters between you and us. Mr. Nolin.--  
Gov. Morris I have a good opinion of Mr. Nolin, here present, and will recommend his  
appointment to the Government.  
"Manitobiness" I don't like fire water myself and don't want it where I live. Perhaps at times I  
might take some for medicine but should any one insist that we should have it I will break the kegs &  
destroy the houses where it is sold.  
Gov. Morris Was glad to hear him speak so. There was a Law against bringing it into the  
Country.  
"Manitobiness" We have now spoken on principal past. We want to see the promises fulfilled.  
If they are not I will hunt up the person neglecting his duty.  
Gov. Morris The Queen's ear would always be open to hear her Indian subjects.  
"Manitobiness" You have promised to give all your names, and now I want a copy of the  
Treaty. –Yes-- I do not wish to be treated as those in Red River. I would like that provisions be given  
us when we meet.  
Gov. Morris Provisions are always given at a meeting.  
"Manitobiness" You have come before us with a smiling face, you have promised us good  
things - you have given us your best wishes and we have done the same in return, let it be now  
forever peace & friendship. It is the wish of all wherever our Reserves be that peace should reign.  
Any one carrying arms, murderers &c will be put out of the reserves.  
Gov. Morris Murderers would be punished according to Law.  
"Manitobiness" If I see any of the Hudson Bay Co. men surveying my reserve I will put them  
off.  
Gov. Morris The Hudson Bay Co. have their rights, you have yours. The Queen will do justice  
between you.  
"Manitobiness" I am going to tell you one thing. I take your hand in a friendly way. Let the  
promises you have made and the business concluded last as long as the sun is over our heads. I shew  
this medal given at the Treaty in Red River – they called it silver – I do not. I would be ashamed to  
wear it on my breast. I would not disgrace the Queen  
Gov. Morris I will tell the Government what you say and how you said it.  
"Manitobiness" Here I stand before the face of the nation and of the Commissioners. I trust  
there will be no grumbling. The words I have said are the words of the nation and have not been said  
in secret but openly so that all could hear and I trust that those who are not present will not find fault  
with what we are about to do to-day. And, I trust, what we are about to do to-day is for the benefit of  
our nation as well as for our white brothers - that nothing but friendship may reign between the nation  
and our white brothers. And now I take off my glove to give you my hand and sign the Treaty and  
now before you all, Indians and whites, let it never be said that this has been done in secret. It is done  
openly and in the light of day.-  
This, and the signing of the Treaty brought it to a close.—  
[Underlining added. Bolding added where indicated; most bolding & all italics in original]  
 Morris' Official Report dated October 14, 1873 contains the following:  
…The Chiefs were summoned to the conference by the sound of [a] bugle[s], and again met us  
when they told me that the determination to adhere to their demands had been so strong a bond that they  
did not think it could be broken, but that they had now determined to see if I [could] [would] give them  
anything more.  
The Commissioners had had a conference [bolding added], and agreed previously to offer a  
small sum for ammunition and twine for nets, yearly, a few agricultural implements and seeds, for any  
Part 7. The 1873 Negotiations  
82  
Band actually farming or commencing to farm, and to increase the money payment by [$2] [two dollars]  
per head if it should be found necessary in order to secure a treaty, maintaining the permanent [annuity]  
[annuities] at the sum fixed. The Indians, on the other hand, had determined on asking [$15] [fifteen  
dollars] with some other demands. In fixing the [$10] [ten dollars] the Commissioners had done so as a  
sum likely to be accepted in view of [$3] [three dollars] per head having been paid the Indians the first  
year that the Dawson route was used, and that they had received nothing since.  
In reply to the Indians, I told them I was glad that they had reconsidered their decision, and that as  
they had done so, being desirous of inducing them to practice agriculture and to have the means of getting  
food if their fishing and hunting failed, we would give them certain implements, cattle and grain, once for  
all, and the extra [$2] [two dollars] per head of a money payment. This proposal was received favorably,  
but the spokesmen again came forward and said that they had some questions to ask before accepting my  
proposal [bolding added]. They wanted suits of clothing every year for all the Bands, and [$50] [fifty  
dollars] for every chief annually. This I declined, but told them that there were some presents of clothing  
and food which would be given them this year at the close of [the] treaty. They then asked free passes  
forever over the Canada Pacific Railway which I refused. They then asked that no "firewater" should be  
sold on their reserves, and I promised that a regulation to this effect should be introduced into the treaty.  
They then asked that they should not be sent to war, and I told them the Queen was not in the habit of  
employing the Indians in warfare. They asked that they should have power to put turbulent men off their  
reserves, and I told them the law would be enforced against such men. They asked what Reserves would be  
given them, and were informed by Mr. Provencher that reserves of farming and other lands would be given  
them as previously stated, and that any land actually in cultivation by them would be respected. They asked  
if the mines would be theirs. I said if they were found on their Reserves it would be to their benefit, but not  
otherwise. They asked if an Indian found a mine would he be paid for it. I told them he could sell his  
information if he could find a purchaser, like any other person. They explained that some of their children  
had married in the States, and they wished them to return and live among them, and wanted them included  
in the Treaty. I told them the Treaty was not for American Indians, but any bona fide British Indians of the  
class they mentioned who should within two years be found resident on British soil would be recognized.  
… They asked that Mr. Charles Nolin should be employed as an Indian agent and I stated that I  
would submit his name to the Government with favourable mention of his services on that occasion. They  
asked that the Chiefs and headmen as in other Treaties should get an official suit of clothing, a flag, and a  
medal, which I promised. Mawedopenais produced one of the medals given to the Red River chiefs, said it  
was not silver and they were ashamed to wear it, as it turned black, and then with an air of great contempt,  
struck it with his knife. I stated that I would mention what he had said and the manner in which he had  
spoken. They also stated the Hudson Bay Company had staked out ground at Fort Frances, on part of the  
land they claimed to have used and to be entitled to, and I promised that enquiry would be made into the  
matter. They apologized for the number of questions put me which occupied a space of some hours, and  
then the principal spokesman, Mawedopenais, came forward and drew off his gloves and spoke as follows.  
"Now, you see me stand before you all. What has been done here to-day, has been done openly before the  
Great Spirit and before the nation, and I hope that I may never hear anyone say that this Treaty has been  
done secretly. And now, in closing this Council, I take off my glove and in giving you my hand, I deliver  
over my birthright and lands, and in taking your hand I hold fast all the promises you have made, and I  
hope they will last as long as the sun goes round, and the water flows, as you have said." To which I replied  
as follows: "I accept your hand, and with it the Lands, and will keep all my promises, in the firm belief that  
the Treaty now to be signed will bind the Red man and the white man together as friends forever."  
The conference then adjourned for an hour to enable the text of the treaty to be completed in  
accordance with the understanding arrived at. At the expiration of that period the conference was resumed,  
and after the reading of the Treaty, and an explanation of it in Indian by the Hon. James McKay, it was  
signed by the Commissioners and by the several chiefs, the first signature being that of a very aged  
hereditary chief. … The negotiation was a very difficult and trying one, and required, on the part of the  
commissioners, great patience and firmness. On the whole, I am of opinion that the issue is a happy one.  
With the exception of two bands in the Shebandowan District ,whose adhesion was secured in advance, and  
the signature[s] of whose chiefs Mr. Dawson left to secure, the Indian title has been extinguished over the  
vast tract of country comprising 55,000 square miles lying between the upper boundary of the Lake  
Part 7. The 1873 Negotiations  
83  
Superior treaty, and that of the treaty made by Mr. Commissioner Simpson at Manitoba Post, and  
embracing within its bounds the Dawson route, the route of the Canada Pacific Railway, and an extensive  
lumber and mineral region. It is fortunate, too, that the arrangement has been effected, as the Indians along  
the Lakes and Rivers were dissatisfied at the use of the waters, which they considered theirs, having been  
taken without compensation, so much so indeed that I believe if the Treaty had not been made, the  
Government would been compelled to place a force on the line next year.  
Before closing this despatch I have much pleasure in bearing testimony to the hearty co-operation  
and efficient aid the Commissioners received from the Metis who were present at the Angle, and who, with  
one accord, whether of French or English origin, used the influence which their relationships to the Indians  
gave them, to impress them with the necessity of their entering into the treaty.  
I must also express my obligations to the detachment of troops under the command of Captain  
Macdonald, assigned me as an escort, for their soldierly bearing and excellent conduct while at the angle.  
Their presence was of great value, and had the effect of deterring traders from bringing articles of illicit  
trade for sale to the Indians, and moreover exercised a moral influence which contributed most materially  
to the success of the negotiations. I have further to add that it was found impossible, owing to the extent of  
the country treated for, and the want of knowledge of the circumstances of each band, to define the reserves  
to be granted to the Indians. It was, therefore, agreed that the Reserves should be hereafter selected by  
officers of the Government, who should confer with the several bands, and pay due respect to lands actually  
cultivated by them.  
A provision also was introduced to the effect that any of the Reserves, or any interest in them,  
might hereafter be sold for the benefit of the Indians by the Government with their consent.  
I would suggest that instructions should be given to Mr. Dawson to select the Reserves with all  
convenient speed, & to prevent complication[s], I would further suggest that no patents should be issued, or  
licenses granted, for mineral or timber lands, or other lands, until the question of the reserves has been first  
adjusted.  
I have the honour to be,  
Sir,  
Your obedient Servant,  
Alexander Morris  
[Underlining added. Bolding added where indicated. Most bolding and all italics in original.]  
 The Manitoba Free Press article described October 3, the last day of the Treaty  
negotiations, as follows:  
Friday  
…Those terms are expressed in the treaty, a copy of which is herewith given. The Indians then retired  
for a final Council to determine yea or nay, but the success of the commission was greatly aided by  
the timely announcement of a chief of the English River that whatever the determination of the others  
might be, he had resolved upon accepting the terms of the white chief. … At a subsequent meeting on  
the same day the leading spokesman enumerated a number of points on which they desired emphatic  
that information, and these were answered seriatim. We apologized for occupying so much time, but  
wisely observed that it was better to spare a little time now than to run the risk of misunderstanding  
and complaints hereafter. If any one has possessed this amount of wisdom at the first treaties what a  
world of trouble and discontent would have been avoided.  
[Underlining added.]  
 Nolin's Notes for October 3, 1873 read as follows:  
The following are the terms of the Treaty held at Northwest Angle the Third day of October,  
Eighteen Hundred, and Seventy Three, viz:  
1. The Government will give when Indians will be settled, Two Hoes, one Plough for every ten  
families, Five Harrows for every twenty families, one yoke of Oxen, one Bull and four Cows for  
every band, one scythe and one axe for every family and enough of wheat, Barley and oats, for the  
land broken up this is to encourage them at the beginning of their la[ ]bour once for all.  
Part 7. The 1873 Negotiations  
84  
Fifteen Dollars every year to Councillor First Soldier and Messenger. Twelve Dollars [every  
year] for the first payment to every head of Indians, and every subsequent year Five [years] Dollars.  
Fifteen Hundred Dollars every year in twine and ammunition [munitions]. Twenty five dollars to  
every Chief every year.  
The farming implements will be provided for during the winter to be given next year to those  
that are farming and to those that are anxious to imitate the farmers, a set of Carpenter's tools will be  
also given.  
Coats will be given to the Chiefs and their headmen every three years; with regard to the other  
Indians there is goods here to be given to them.  
If their children that are scattered come inside of two years and settle with you they will have  
the same privilege as you have.  
I will recommend to the authorities at Ottawa, assisted by the Indian Commissioner, the Half  
Breeds that are living with you, to have the same privilege as you have.  
The English Government never calls the Indians to assist them in their battles but [he] expects  
you to live in peace, with Red and White people.  
Mr. Dawson said he would act as in [by] the past about the Indians passing on [Indian  
passage in] his road. *The Indians will be free as by the past [an ] for their hunting and rice  
Harvest. [Bolding added.] If some gold or silver mines be found in their Reserves it will be to the  
benefit of the Indians, but if the Indians find any gold or silver mines out of their Reserves they will  
[only] be paid the finding of the mines.  
The Commissioner & [and] an agent will come to an understanding with the Indians about the  
Reserves, & [and] it shall be surveyed by the Government. The Commissioners do not wish that the  
Indians leave their harvest immediately to step into their reserves. About the Indian Commissioner,  
the Commission is pending upon the authorities at Ottawa. I will write to Ottawa and refer Mr.  
Charles Nolin.  
The sale [sell] of intoxicating liquors is prohibited in this part of the country as well as in other  
parts, it is the greatest pleasure for me to hear you, and when we shake hands, it must be forever. It  
will be the duty of the English Government [Govnt ] to deal with the Commissioners if they act wrong  
towards the Indians. I will give you a copy of the Agreement now, and when I reach my residence I  
will send you a copy in parchment.  
You will get rations during the time of the payment every year. The Queen will have Her  
policemen to preserve order and wherever there is Crime and murder the guilty must be punished.  
This Treaty will last as long as the sun shines and water runs that is to say forever.  
Copy of the notes taken by M. Joseph Nolin, on behalf of the Indians at the Treaty made at the North  
West Angle of the Lake of the Woods.  
[Underlining added. Bolding added where indicated. Most bolding and all italics in original.]  
 It is clear from the Shorthand Reporter's account in the Manitoban that at the end of the  
negotiations on October 2, it seemed "extremely doubtful" that an agreement would be reached.  
"The Rainy River Indians were careless about a treaty." The Commissioners held a conference.  
McKay and Nolin were invited to the Ojibway Council that continued overnight "and after a  
most exhaustive discussion of the circumstances in which they were placed, it was resolved to  
accept the Governor's terms with some modifications."  
 However, the exact content of the Chiefs' discussion overnight between October 2 and  
October 3 is unknown.  
 At about 11 a.m. the negotiations between the Ojibway and the Commissioners resumed.  
 The Treaty Commissioners, having held their own conference, had already decided to  
sweeten their offer. Morris outlined the improved terms:  
Part 7. The 1873 Negotiations  
85  
…I think we should do everything to help you by giving you the means to grow some food so that if  
it is a bad year for fishing and hunting, you may have something for your children at home.  
[Emphasis added.]  
 Lovisek's report (Ex. 28) contains the following at pp. 92-94:  
The next day, October 3, 1873, the parties returned to negotiations. It had now been two days of  
negotiations and the only reference to the taking-up clause was in the opening offer made by Morris  
on the first day: "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."  
On what would be the final day of negotiations, Morris offered an increased amount of annuities,  
agricultural assistance and a perpetual payment of $1500 for ammunition and twine. In offering the  
perpetual payment of $1500 for ammunition for hunting and twine for fishing, Morris was actually  
offering less than what the Saulteaux had requested based on Morris' estimation of the cost in the  
1869 List of Demands. Morris had estimated the cost of the ammunition and twine demanded by the  
Saulteaux in the 1869 List of Demands and concluded that these costs would comprise a substantial  
amount of money. According to his calculation, the cost of twine alone, excluding annuity payments,  
amounted to the second largest expenditure. Morris estimated that powder (ammunition) would cost  
$1,500 and twine, $13,600 per year. The largest expenditure, excluding annuity payments, was for  
food (pork, flour and tea) which Morris estimated at $14,250. The Saulteaux, who did not understand  
the relative value of money, were in no position to assess the value of $1500 of ammunition and  
twine or what it amounted to. They knew what ammunition and twine would be used for, and that  
Morris was offering it to them every year to support their hunting and fishing.  
 In addition to providing twine and ammunition, Morris offered to increase the gratuity  
from ten to twelve dollars per person.  
 He made it clear (in Von Gernet's words) that this was no mere "real estate deal:"  
I wish you to understand we do not come here as traders, but as representing the Crown and to do  
what we believe is just and right.  
Morris, Ex. 9, page 67; Cross-examination of von Gernet, December 10, 2009  
 Counsel for the Plaintiffs submitted that while Morris did not specifically articulate the  
concept of the Honour of the Crown during the negotiations, it is clear he understood that these  
were not hard bargaining sessions in which the Crown was free to be as aggressive, devious or  
tough as it could have been if negotiating with well-educated English-speaking persons  
represented by counsel.  
 The Ojibway then made a series of requests to which Morris or one of the other  
Commissioners responded. With one noteworthy exception, the documents consistently reflect  
discussion of the following topics sequentially:  
[a] The amount of the gratuity payment.  
[b] Annual payments for ammunition and twine.  
[c] The delivery of farming implements.  
[d] The provision of tools.  
[e] The provision of provisions and clothing for the Chiefs.  
[f] A request for guns.  
[g] Treatment of Ojibway from the United States [The Manitoban and the Dawson  
notes refer to a promise to allow the children of British Indians [not American  
Part 7. The 1873 Negotiations  
86  
Indians] returning within two years to benefit under the Treaty. The Nolin Notes read  
as follows: if there are children that are scattered come inside of two years and settle  
with you he will have the same privilege as you have.]  
[h] Morris promised to make a recommendation on the treatment of Half-Breeds to  
the "Government at Ottawa."  
[i] A promise that the Ojibway will not be called to war.  
[j] An expectation that the Ojibway will live in peace.  
[k] A request for free passage on the railway. (Denied.)  
[l] A request that Dawson act as he has in the past in respect of the Dawson Route  
[i.e., give Indians free passage.] Dawson replied, "I am always happy to do anything I  
can for you. I have always given you passage on the boats when I could. I will act as I  
have done, though I can give no positive promise for the future." Dawson wrote, "I  
would be happy to do what I could to help the Indians." Nolin wrote, "Mr. Dawson  
said he would act as by the past about the Indian passage in his road."  
[m]A request for an assurance that the Ojibway will be free to travel about the  
country. According to Morris' version of The Manitoban report recorded in Ex. 9 a  
chief asked: "We must have the privilege of traveling about the country where it is  
vacant." Mr. McKay said, "I told them so."  
Dawson recorded the question and answer as follows: "Would they have the privilege  
of traveling through the country?" [No reference to where it is vacant. Chartrand said  
it is "moot" whether "where it is vacant" formed part of the question. January 14,  
2010 at p. 58.] "Yes, they will." Nolin's note of the exchange reads as follows: "The  
Indians will be free as by the past for their hunting and rice harvest."  
[n] Ojibway entitlement to minerals and mines.  
[o] A creation of reserves and inclusion of gardens. The Chiefs said they wanted to  
mark out their own reserves. Provencher replied that when it was convenient for the  
Government to send out surveyors, they would try to accommodate the Indians.  
Lovisek opined that on October 3, the Ojibway specifically raised an issue important  
to them - protection of their existing gardens primarily situated on islands in Lake of  
the Woods and along the fertile area of Rainy River from potential interference by  
others.  
[p] Taking of land for public works.  
[q] A request for the names of the Commissioners' party in writing.  
[r] A request that C. Nolin be appointed Indian Agent and Morris' promise to make  
that recommendation to the "authorities at Ottawa."  
[s] A request that Alcohol be banned and Morris' assurance that the Queen and "her  
Parliament at Ottawa" have passed a law to this effect.  
[t] A request for punishment of officials breaking the Treaty and Morris' promise that  
"The ear of the Queen's government will always be open to hear the complaints of her  
Indian people, and she will deal with her servants that do not do their duty in a proper  
manner."  
[u] A request for a copy of the Treaty in writing on parchment.  
[v] A request for provisions with Treaty payments was made. Dawson notes: "I  
would like that provisions be given us when we meet." Gov. Morris: "Provisions are  
Part 7. The 1873 Negotiations  
87  
always given at a meeting." Nolin: "You will get Rations during the time of the  
payment every year."  
 The only significant discrepancy among the various records relates to item (m), the entry  
recorded in the Nolin Notes as, "the Indians will be free as by the past for their hunting and rice  
harvest." This reference does not appear in that form in any of the other notes of the October 3  
discussions.  
 Later in these Reasons I analyze the differing evidence about the significance or  
insignificance of item (m). The experts disagreed about whether Nolin was recording Morris'  
comment on October 1 that "it may be a long time before the other lands are wanted and in the  
meantime you will be permitted to hunt and fish over them," or whether he was recording new  
and more extensive promises made on October 3.  
 After the discussion of specific terms, closing speeches were made. Morris reported them  
as follows:  
Chief Mawedopenais:  
You have come before us with a smiling face. You have shown us great charity-you have  
promised the good things; you have given us your best compliments and wishes, not only for once  
but forever; let there now for ever be peace and friendship between us. [Bolding added.] …  
Now you see me stand before you all; what has been done here to-day has been done openly  
before the Great Spirit, and before the nation, and I hope that I may never hear anyone say that this  
treaty has been done secretly; and now in closing this Council, I take off my glove, and in giving you  
my hand, I deliver over my birthright and lands, and in taking your hand, I hold fast all the  
promises you have made, and I hope that they will last as long as the sun goes round and the  
water flows, as you have said.  
Morris:  
I accept your hand and with it the lands, and will keep all my promises in the firm belief that  
the treaty now to be signed will bind the red man and the white together as friends forever.  
Morris, Ex. 9, p. 75  
[Underlining emphasis added, and bolding where noted.]  
 Lovisek's report (Ex. 28) contains the following at p. 94:  
Despite the Morris Document having already been prepared ahead of the negotiations, Morris omitted  
to include several provisions that were agreed to by both parties during the final hours of  
negotiations. These provisions included the request by the Saulteaux for exemption from military  
conscription, that minerals found on reserves would be sold for the benefit of the Saulteaux, and the  
inclusion of Saulteaux who had migrated to the United States but who returned within two years into  
the treaty.  
[Footnotes omitted.]  
 During the trial the Free Press version of that speech surfaced, which read as follows:  
Finally, winding up his speech with a peroration of more than usual ability, he held out his hand to  
the Governor, explaining as he did so that in that grasp he surrendered the country which the white  
man deserved, and which the Indians had inherited from their ancestors, into the hands of the  
Government of the Great Mother ...  
[Underlining added.]  
Part 7. The 1873 Negotiations  
88  
 They then adjourned for an hour so that Morris could complete the text of the formal  
Treaty. Morris' October 14 report contains the following:  
At the expiration of that period, the conference was resumed, and after the reading of the treaty and  
an explanation of it in Indian by the Honourable James McKay, it was signed by the commissioners  
and by the several chiefs…  
 The experts disagreed as to how McKay explained the Treaty in Ojibwe to the Indians.  
Later in these Reasons, I summarize and analyze that evidence later in these Reasons.  
 After McKay's explanation, the Treaty was signed.  
 The Treaty was approved by a federal Order in Council on October 31, 1873.  
8. ANALYSIS OF THE HISTORICAL EVIDENCE AS IT RELATES TO THE  
INTERESTS OF THE PARTIES  
The Interests of Canada  
 As noted earlier, there was much documentary and viva voce evidence before this Court  
relevant to Canada's interests in completing the 1873 Treaty. I have already reviewed much of  
the relevant historical evidence.  
 Here I shall first review the specific evidence as to the background and knowledge of  
each of the Treaty Commissioners.  
What Morris Knew  
 By 1873, Alexander Morris, the lead treaty negotiator in 1873, was already an important  
figure in Canadian history.  
 At the time of the negotiations, Morris was the Lieutenant-Governor of Manitoba and the  
Northwest Territories, and a member of the Indian Affairs Management Board that also included  
a Commissioner of Crown Lands and a representative of Indian Affairs. As a member of that  
Board, he knew by its make-up it contemplated communication and cooperation among various  
federal departments, including Indian Affairs and Crown lands (Ex. 4, p. 213.)  
 Counsel for the Plaintiffs submitted that because of his background in political and public  
affairs and his interest in history, the historical evidence already covered in these Reasons would  
have been known to Morris.  
 In the lead-up to the 1873 negotiations and as they progressed, Morris was aware of the  
challenges of developing the Canadian nation, including linking the East to the Prairies and  
British Columbia.  
 Vipond gave evidence (February 23, 2010 at p. 11) that Morris was a "public  
intellectual," a keen student of Canadian history, especially Canadian Imperial history, who  
wrote grandly and thought big thoughts. His world-view was of "a heroic British empire."  
     
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89  
 Morris was "a trained Constitutional lawyer" (Nova Brittania, Ex. 130 at p. 147.) He  
studied law at McGill University, then in 1848 articled with John A. Macdonald. In 1849 he  
joined the British American League comprised for the most part of young and enthusiastic  
members of the Conservative Party, rallying around the Macdonald banner. Morris was closely  
connected to Macdonald and the federal Conservatives.  
 Pre-Confederation, he played a significant role in developing support for western  
expansion, annexation of the HBC Territories and settlement of the West.  
 Nova Brittania (Ex. 130), a collection of Morris' essays and speeches in book form,  
provides information about Morris' life and philosophy.  
 Confederation was a dream of Morris' boyhood. At an age when most boys were skating  
or on the cricket field, he "loved to bury himself in the pages of Lord Durham's Report." As early  
as 1858, in speeches reproduced in Ex. 130, Morris advocated for Confederation and the creation  
of a British North American country spanning from Atlantic to Pacific, with a central  
government strong enough to resist absorption by the United States.  
 In an 1858 lecture entitled the "Hudson's Bay and Pacific Territories," he outlined his  
views that the HBC was standing in the way of progress, settlement and development to the  
detriment of the Canadian people. Consistent with the colonial position at the time, but contrary  
to the position advanced by Canada after Confederation, he advanced arguments as to why the  
boundary of what is now Ontario should be determined to be as far west as the Saskatchewan  
River (i.e., he was contending in effect in 1858 that the HBC Territories did not include/that  
Ontario already included a huge portion of the territory purportedly added to Canada as of July  
15, 1870. Morris' 1858 speech is one of the earliest documented arguments favouring the  
position that Ontario at Confederation already included the Disputed Territory.)  
 In a speech in Parliament on the acquisition of the Northwest Territories, reproduced in  
Nova Brittania (Ex. 130 at p. 141), Morris said that he thought the HBC Territories should be  
handed over to the Dominion subject to a reservation of the rights of the Indians.  
 He knew Canada had promised Britain as follows:  
[U]pon the transference of the territories in question to the Canadian Government, the claims of the  
Indian tribes to compensation for lands required for purposes of settlement will be considered and  
settled in conformity with the equitable principles which have uniformly governed the British Crown  
in its dealings with the aborigines.  
[Emphasis added.]  
 Morris was cognizant of the competing theories on the best structure for a Canadian  
"federalism." Like Macdonald, he advocated a strong central government having jurisdiction to  
override and overrule the provinces. Vipond opined (February 24, 2010 at p. 28) that Morris'  
centralist views "out-Macdonalded" Macdonald's.  
 In 1862, Morris was elected to the Parliament of the United Canadas. He realized his  
boyhood dream by playing an important role in bringing about Confederation, having reportedly  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
90  
brokered the deal between John A. Macdonald and George Brown that led to the formation of the  
"Great Coalition" and to the Charlottetown and Quebec City conferences.  
 After Confederation, he was elected to the Parliament of Canada. In November 1869, he  
became Minister of Inland Revenue and was a Cabinet Minister in Macdonald's government until  
1872. He was present at a Cabinet meeting on May 1, 1872 when the implications of the  
Boundary Dispute were discussed.  
 Von Gernet's evidence (December 9, 2009) contains the following:  
Q. [Ex. 1] Tab 174, we see the memorandum of …Sir John A. Macdonald, … the Prime Minister  
essentially highlighting how serious this problem is … that's what brings us to the Privy Council  
meeting that's recorded at Tab 175, correct? .... And Alexander Morris is in Cabinet while all of this  
is happening, isn't he?  
A. Well, he's listed as present.  
…
Q. And so I suggest to you that, at least as of 1872, whatever date in May that that particular  
document is, 16th of May, 1872, Alexander Morris is fully aware of the boundary dispute and aware  
that it has implications with respect to who can make grants of land and with respect to the  
administration of justice; isn't that fair?  
A. Yes.  
Q. And it's not long after that that he is appointed as the Chief Justice of the Queen's Bench of  
Manitoba, correct?  
A. Yeah….  
…
Q. And you're not suggesting to me that by the time we get to 1873 that Morris has somehow  
forgotten all this, has he?  
A. I never made that suggestion, and I wouldn't suggest that to you.  
Q. So when we go into these 1873 negotiations, we've got Morris knowing full well that there's a real  
question about who has the power to grant land in the area he's negotiating a treaty over, correct?  
A. He's aware that the -- that the matter is in dispute.  
 In 1872 Morris left Parliament and was appointed the first Chief Justice of Manitoba. On  
December 8, 1872, he became the Lt. Governor of Manitoba and the Northwest Territories, and  
"personal representative to Prime Minister Macdonald."  
 Nova Brittania, Ex. 130, contains the following at p. 147:  
By 1872… the Red River Settlement had been erected into a distinct Province, under the name of  
Manitoba. It was necessary that some trained Constitutional lawyer should proceed to that Province  
in the capacity of Chief Justice to organize a judicial and municipal system.  
 While Canada's perspective about the importance of Indians changed later, in 1873  
Morris, like Prime Minister Macdonald, the Minister in charge of Indian Affairs Campbell,  
Dawson and Provencher, recognized Canada's strategic need to seek and gain the cooperation of  
the Treaty 3 Ojibway.  
The Relationship of the Federal and Provincial Governments  
 Counsel for the Plaintiffs submitted that Milloy's, Saywell's and Vipond's evidence on the  
relationship between the federal and provincial governments and their respective roles at  
 
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
91  
Confederation and on evolving concepts of federalism is relevant in considering Morris'  
understanding and intent in 1873, and in considering and interpreting the words he used when he  
drafted Treaty 3.  
 Vipond gave evidence (February 24, 2010 at p. 30) that in 1873 Morris understood the  
fundamental division between the Queen in Right of a province and the Queen in Right of the  
federal government.  
Morris' View of Canada's s. 91(24) Powers and Duties  
 Von Gernet conceded (December 10, 2009) that Morris, given his background,  
understood Canada's and Ontario's legislative powers under the BNA Act. He acknowledged that  
Morris understood that the Government of Canada had the obligation to protect and deal with the  
interests of the Indians, arising out of the Rupert's Land order and also out of its assumption of  
responsibility for Indians and lands reserved for the Indian under s. 91(24). In the somewhat  
archaic language of the day, it viewed the Indians as wards or pupils of the Crown. Section  
91(24) was often understood to confer the responsibility on the federal government to carry out  
the duties associated with that wardship or pupilage.  
 Saywell said (April 7, 2009) that the words "trustee" and "trust" had been mentioned  
emphatically and explicitly in the establishment of the department of the Secretary of State, the  
department then responsible for Indians. Langevin mentioned it and McDougall spoke, on the  
seventh resolution of the address to Her Majesty, December 1867, of the particular responsibility  
of the central government under s. 91(24). The Indians were in a state of pupillage vis-à-vis the  
federal government, children, heathens, uncivilized. The federal government was responsible for  
looking out for them and managing their affairs.  
 Vipond gave evidence (February 25, 2010 at pp. 143 and 150) that Morris knew that a  
number of the Fathers of Confederation, including his mentor Macdonald, George Brown, Rose  
and Alexander Mackenzie (the second prime Minister) were of the view that one of the federal  
government's functions was to protect individual and minority rights against arbitrary acts of  
local governments. For example, they expected the federal government to have a role in  
protecting minority religious education. He agreed that part of the reason for assigning Indian  
matters to the federal government was to protect a vulnerable local minority; the Indians.  
 Milloy gave evidence that jurisdiction was given to the federal government (i.e., the more  
distant level of government) as a way of protecting local minorities against local majorities. The  
Indians, wards of Canada, were members of a vulnerable minority.  
 Morris knew that his mentor Macdonald viewed protection of Indians as important.  
 Milloy gave evidence specifically on Morris' view of the role of the Canadian  
government under s. 91(24). Morris believed that under s. 91(24), Canada had jurisdiction to  
negotiate and enter into treaties with the Indians. Canada had jurisdiction over and responsibility  
for Indians and Lands Reserved for the Indians. He was generally of the view that the federal  
government was expected to be the protector of the Indians. He believed the white man should  
 
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"civilize," educate and uplift the red man to the higher cultural level of the white man. He  
assumed if those of the superior culture helped them learn white cunning, civics, English,  
agriculture, trades and Christianity, the Indians would gladly, thankfully, and voluntarily  
embrace Euro-Canadian ways and enter the Canadian mainstream. During his evidence Milloy  
read from Morris' book:  
And instead of the Indian melting away … as snow before the sun, we will see our Indian population  
loyal subjects of the Crown, happy, prosperous and self-sustaining, and Canada will be enabled to  
feel that in a truly patriotic spirit, our country has done its duty by the red men of the northwest, and  
thereby to herself …  
…
They are wards of Canada: Let us do our duty by them and repeat in the Northwest the success  
which has attended our dealings with them in old Canada for the last hundred years. Among the  
Indian tribes, let us have a wise and paternal government faithfully carrying out the provisions of our  
treaties and doing its utmost to help and elevate the Indian population who have been cast upon our  
care…  
[Emphasis added.]  
 Milloy quoted another passage from Morris' 1880 book (Ex. 9 at p. 231):  
I see all the Indians. I see the Queen's Councillors taking the Indian by the hand saying we are  
brothers, we will lift you up, we will teach you, if you will learn, the cunning of the white man. All  
along that road I see Indians gathering, I see gardens growing and houses building; I see them  
receiving money from the Queen's Commissioners to purchase clothing for their children; at the same  
time I see them enjoying their hunting and fishing as before, I see them retaining their old mode of  
living with the Queen's gift in addition.  
[Emphasis added.]  
 Milloy then commented on that passage on October 13, 2009 as follows:  
A. Well, I think that that quote… summarizes …what they took to mean Section 91(24) to be, with  
respect to the constitutional organizational chart that was implied … that in the constitutional sense  
the federal government was now the senior government with control over these people…responsible  
for the question of treaties …that the federal government had taken on with respect to lands and  
resources the responsibility to preserve, mediate, manage the promise of off-reserve resource access  
in terms of hunting territories, and that there was in all this, despite its … realpolitik structure and  
realpolitik motivation …dealing with Indians is part of creating a structure in western Canada that  
allows Western Canada to play its economic role in the development of a free Canadian economy,  
which goes all the way back to why we started on this Confederation project in the first place, that  
despite those bones being everywhere evident in this vision, that there is on top of that a vision, and  
that is that the senior government, representing a senior superior Christian culture, would protect its  
children, First Nations people, in the way in which we raise our own children, to be capable to move  
into adult life, to be self-sufficient -- self-supporting, excuse me, to have the cunning of the White  
man, which was assumed to be cunning that no one else had, superior to all else, and that they would  
indeed be good citizens of the developing nation, both in terms of fulfilling a positive economic role  
but, indeed, being good citizens in terms of being Canadian, normalized as Canadians.  
[Emphasis added.]  
 After the negotiation of several treaties during the 1870s, Treaty Commissioner Morris  
commented in Ex. 9: "The provisions of these treaties must be carried out with the utmost good  
faith and the nicest exactness."  
 Vipond gave evidence that the documentation generated shortly after 1873 by provincial  
autonomists interpreting ss. 91(24) and 109 vis-à-vis Indians Harvesting Rights provides insight  
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into contemporary thinking and suggests that not only centralists like Macdonald and Morris but  
also provincial autonomists like Blake and Fournier all understood at the time that Canada could  
act within its s. 91(24) jurisdiction to protect the Indians even if by so doing, it adversely  
affected provincial proprietary rights and that s. 109 rights would be limited by Treaty  
Harvesting Rights.  
 I later refer to a memo regarding disallowance, prepared by Bernard shortly after the  
Treaty was signed, which demonstrated that even the strongest of provincial autonomists were of  
the view that Canada could use the disallowance power when a province had exceeded its  
jurisdiction. Vipond said in effect that whatever the disagreement between centralists and  
provincial autonomists about the complete extent of federal power from Confederation, everyone  
agreed that Canada could impinge upon provincial rights when exercising a valid s. 91 power.  
This indicates that in 1873, everyone, including Morris, understood that at the very least,  
Canada, in exercising its valid jurisdiction over Indians, could affect proprietary rights.  
 Vipond agreed [February 25, 2010 at p. 111] when Canada was exercising a power  
squarely within its jurisdiction, it was not acting unconstitutionally. It was not improperly  
interfering with Ontario's exercise of its proprietary powers.  
 In other words, in 1873, even though Morris may have wanted Canada to have broad  
powers, he knew Canada's jurisdiction to interfere in provincial matters simply because  
provincial legislation was against national interests was controversial. At the same time, he also  
knew that everyone, even the provincial autonomists, agreed that Canada could interfere with  
provincial legislation in the course of a valid exercise of federal jurisdiction.  
 The uncontradicted evidence was that in 1873, a strong centralist like Morris would have  
understood that even the provincial autonomists appreciated the difference between federal  
actions clearly exercised under a valid federal jurisdiction and federal actions purporting to  
interfere with provincial actions in the absence of a valid federal power to do so. Everyone,  
centralist and provincial autonomist alike, understood in 1873 that valid exercise of federal s.  
91(24) jurisdiction was Constitutional. No one would have viewed a valid exercise of federal  
jurisdiction that affected provincial rights as unconstitutional meddling or supervision.  
Morris' Understanding of Section 109  
 Section 109 of what is now The Constitution Act, reads as follows:  
All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova  
Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines,  
Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and  
New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect  
thereof, and to any Interest other than that of the Province in the same. [Emphasis added.]  
 In 1873, Morris was aware of the content of s. 109 of the BNA Act, which gave Ontario as  
one of the four original Canadian provinces the right to receive all the revenues from Crown  
lands in Ontario. He was aware it provided that s. 109 rights were subject to any other interest  
other than the interest of the province in the same.  
 
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 Counsel for the Plaintiffs submitted that a number of memos and cases shed light on  
contemporaneous understandings, and therefore Morris' likely understanding, of s. 109 in 1873.  
 Again, Vipond gave evidence that the reasoning of provincial autonomists Fournier,  
Blake and Bernard with respect to British Columbia legislation in relation to Indians in 1875 and  
1876 highlights what everyone understood about federal powers, even before St. Catherine's  
Milling was decided. Morris may have viewed federal powers as broader, but centralists and  
provincial autonomists alike understand from the wording of s. 109 that provincial powers over  
land could be qualified by pre-existing interests. In recommending disallowance of British  
Columbia legislation, Bernard, a provincial autonomist who had narrower views about the proper  
scope of federal jurisdiction than Morris, analyzed the role of s. 109 in protecting the rights and  
interests of the Indians in lands located in a province with s. 109 power. He concluded that the  
province's ownership rights over provincial Crown land were qualified by a "trust existing of in  
respect thereof" or an "interest other than that of the province alone." Bernard opined that Indian  
rights qualified the province's ownership rights. Vipond presumed protection of existing Indian  
interests was "built into s. 109." His evidence of February 26, 2010 contains the following:  
Q. … looking at this through the eyes of a politician, not as a lawyer… what this memorandum is  
getting at is the idea that the provincial government does not have an unqualified ownership in land  
because of Section 109. It … takes its interest subject to the interests of others that may exist.  
A. That's how it appears upon reading it, yes.  
Q. … highlighting this as something that actually has a role in protecting the rights of the Indians,  
whatever the nature of those rights are. …?  
A. That's what it appears, yes.  
Q. … that's something that would not be remarkable to the Liberals or reformers, because they…  
strongly believed in the idea that individuals's rights should not be displaced by the sovereign  
leviathan… is that people's rights should be respected, particularly in respect of land?  
A. Yes, at the extreme, when those rights are deprived ...  
Q. …you pointed at Section 109 when you were discussing St. Catherines and … highlighted … the  
importance of Section 109 as affirming provincial ownership of land.  
A. Yes.  
Q. But another part of that, built right into it, is the protection of existing interests in those lands,  
correct?  
A. Yes.  
Q. And that includes the Indian interests, correct?  
A. I presume. …  
 The perception that the wording of s. 109 of the Constitution Act, 1867 would protect the  
interests of the Indians and that Treaty Harvesting Rights would be an interest to which  
provincial interests were subject, was affirmed in a series of cases decided in the late 19th  
century. Vipond said that jurisprudence is relevant to contemporary understanding. For instance,  
in the St. Catherine's Milling decision, it was acknowledged that Indian title was "an interest in  
land other than that of the province in the same," a burden on the Crown's title until such time as  
it was removed.  
 Later in these Reasons, I refer to the reasoning of Dean Gérard La Forest (as he then was)  
set out in Natural Resources and Public Property under the Canadian Constitution (Toronto:  
University of Toronto Press, 1969).  
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Morris' Understanding About Involvement of Dual Governments in Land Use Matters  
 Counsel for Ontario submitted it was "inconceivable" that in 1873 Morris would have  
contemplated the possibility of federal in addition to provincial involvement in authorizing uses  
of land within a province. He submitted that that is a recent development.  
 Counsel for the Plaintiffs submitted that early case law supports his contention that  
involvement of dual governments in authorizing land uses because of intersecting jurisdiction is  
not a recently developed concept.  
 Chancellor Boyd's reasoning in Seybold provides an early example. In 1903, the  
Harvesting Clause was being analyzed and its implementation was being understood to possibly  
involve both provincial and federal governments. As the trial judge in St. Catherine's Milling,  
Boyd would have understood that the 1873 surrender had given Ontario all the beneficial interest  
in the surrendered lands. He had read the Treaty and seen the express reference to the Dominion  
Government in the Harvesting Clause. He understood the reference to Canada was to its role  
under s. 91(24), not as owner. He understood the role of the Dominion Government vis-à-vis the  
Indians, even inside a province. He made it clear that in his view, both the federal government  
and the provincial government could have different roles, at p. 397:  
The true method of both governments, however, appears to be not to stand at arm's length, but to  
engage in a joint or tripartite transaction whereby the rights of the Indians will be secured through the  
intervention of their protector, the central government …  
… and the interests of Ontario guarded in respect to the ultimate enjoyment of the proceeds of the  
surrendered land …  
…
…in case the band of Indians cease to exist. Such a combination of parties is also desirable in order  
that the land may be sold to the satisfaction of the Indians and on proper terms. It is the business of  
the Dominion to protect the interest of the Indians and to see that the best price is obtained for the  
land, and so far the price is concerned that is also the concern of Ontario. …  
The question is left open in the St. Catherines Milling and Lumber Company case as to "other  
questions behind", i.e., with respect to the right to determine to what extent and at what periods the  
territory over which the Indians hunt and fish, is to be taken up for settlement and other purposes. I  
infer that these rights will be transacted by means of and upon the intervention of both general and  
local governments, although the central government may choose to deal ex parte with the Indians for  
the extinction of their claims to land. Still it appears preferable, for the sake of the Indians  
themselves, as well as for present and future peace, that the allocation of particular or treaty reserves  
as well as the sales of surrendered lands should be upon conference with the band and with the  
approval and co-operation of the Crown in its dual character as represented by the general and the  
provincial authorities.  
[Emphasis added.]  
He inferred from the question left open by the JCPC that the right to determine to what extent  
and even what periods the territory over which the Indians hunt and fish would be "transacted by  
means of and upon the intervention of both general and local governments."  
 
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Morris' Awareness of the Boundary Dispute  
 In 1873, Morris was aware of the Boundary Dispute between Canada and Ontario. He  
had been present at the 1872 Cabinet discussion in his capacity as Minister of Inland Revenue,  
when the implications of the Boundary Dispute were discussed, including its potential effects on  
federal interests and the validity of patents and licenses issued by Canada within the Disputed  
Territory.  
 As a "trained Constitutional lawyer," Morris understood that the outcome of the  
Boundary Dispute would determine ownership of the land in the Disputed Territory. If Ontario  
won the Boundary Dispute, as beneficial owner it would have proprietary rights under s. 109.  
Whether or not Ontario won the Boundary Dispute, he knew that by reason of the 1871  
Constitutional amendments, Ontario or another province could in due course receive s. 109-like  
powers.  
 By 1873, Morris was aware that litigation between Ontario and Canada would likely be  
required to settle the issue of ownership of the Disputed Territory. (Saywell, April 7, 2009 p.  
160.)  
 Although in 1873, Morris could not have known whether Ontario or Canada would  
prevail, if Morris' arguments made in 1858 (Ex. 130 at pp. 82-84) had been accepted, it would  
have been determined that at Confederation, the Disputed Territory was not part of the HBC  
Territories, but part of Ontario. By 1873, Morris clearly wanted Ontario to lose the Boundary  
Dispute, but he was also aware that there were arguments to be made as to why Canada could  
lose, since he himself had made arguments before Confederation that were useful to Ontario after  
Confederation. (Vipond, February 23, 2010 at pp 3-20.)  
What Dawson Knew  
 Dawson was the only Treaty Commissioner in 1873 who had previously served in that  
capacity in earlier treaty negotiations.  
 I have already quoted Dawson's letters and memos written to Ottawa between 1857  
(when he first came into contact with some Treaty 3 Ojibway as a member of the Hind  
expedition) and June 1873 (when, having not been appointed as a Treaty 3 Commissioner, he  
wrote to Ottawa providing advice with respect to the upcoming negotiations.)  
 As mentioned earlier, from 1868 Dawson had been in regular contact with the Ojibway,  
as the employee of the Canadian Department of Public Works in charge of construction of the  
Dawson Route between Prince Arthur and the Red River Settlement. For several years, Dawson  
had been stressing the urgency and difficulty of entering into a treaty with the Ojibway. In Ex. 1,  
Vol. 4, tab 53, he stressed the situation was exceptional:  
These Indians occupy a peculiar and somewhat exceptional position. They are a community by  
themselves, and are essentially wood Indians, although going on hunting or fighting expeditions to  
the prairies. They are of the same tribe as the Indians at Red River, speak the same language, and  
regard them as their kindred; but they seldom see them, and have but little intercourse with them.  
   
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Although the principal line of traffic at one time passed through their territory, they have for half a  
century but little intercourse with the white man. Missionaries have made no impression upon them  
and, in many respects, they have shown themselves to be less amenable to the influences of  
civilization, than Indians usually are. They, in fact, take pride in maintaining their distinctive Indian  
character, are deeply imbued with traditions of what they believe to be an honorable past history, and  
would look with disdain on any community becoming Christian.  
They are sufficiently organized, numerous and warlike, to be dangerous if disposed to hostility; and  
standing as they do in the gateway to the territories to the North West, it is of the highest importance  
to cultivate amicable relations with them.  
[Emphasis added.]  
 In his many reports, Dawson had commented favourably on their intelligence and  
integrity and had repeatedly urged the Government to conciliate them and to ensure they  
thoroughly understood the terms of any treaty they were being asked to sign. He made it clear he  
believed that if the treaty terms were fully explained, the Ojibway would keep their promises. On  
April 20, 1868 (Ex. 1, Vol. 4, tab 53), he had written: "I have the fullest reliance as to these  
Indians observing a treaty and adhering most strictly to all its provisions, if in the first place, it  
were concluded after full discussion and after all its provisions were thoroughly understood by  
the Indians."  
 From his many discussions with the Ojibway, Dawson was keenly aware that traditional  
harvesting was a critical component of their life and culture. He knew the Ojibway would seek to  
protect their Harvesting Rights, and their fisheries and gardens. He had earlier, in a letter to  
Langevin (Ex 1, Vol. 4, tab 103) dated December 19, 1870 recommended that "certain areas,  
which they have long occupied, and which are necessary to them in carrying on their fishing and  
gardening operations, such as the Islands in the Lake of the Woods, & their clearing at the  
Rapids on Rainy River, should be set aside for their sole & exclusive use."  
 Von Gernet gave evidence in chief that Dawson understood that for Canada to have  
amicable and friendly relationships with the Ojibway, it was necessary to promise to preserve  
their traditional livelihood.  
 In his June 2, 1873 correspondence Dawson had commented that the Ojibway had been  
unimpressed by the "utmost" parsimony of the Commissioners in 1871 and 1872, and were of  
"…the belief that the Government of Canada attached but little importance to the negotiations…"  
 As he entered the 1873 negotiations, Dawson was very concerned about the threat the  
Ojibway posed to the security of the Dawson Route. After the end of the 1872 negotiations, he  
had co-signed a joint report of the 1872 Commissioners recommending a military presence be  
installed in the area to ensure security.  
 Despite his knowledge of and familiarity with the Treaty 3 Ojibway, he was appointed as  
a Commissioner in 1873 only after Lindsey Russell needed to be replaced.  
 Given the fact that he had initially been by-passed as an 1873 Commissioner, Dawson  
seems to have come to the 1873 negotiations somewhat chastened.  
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 I have already noted that in his introductory statement to the Ojibway, Morris did not  
acknowledge Dawson's presence. He mentioned that he and Provencher were the  
Commissioners. Just before the commencement of the negotiations, Campbell had directed  
Morris to ensure that he, not Dawson, conducted the negotiations.  
 At the same time, even when it had not been the intention of the Canadian government to  
formally appoint him as a Commissioner, Dawson had been asked to attend the 1873  
negotiations. His extensive experience, knowledge and understanding of the Ojibway were  
clearly recognized.  
What Provencher Knew  
 Commissioner Provencher, a lawyer, journalist and public servant, was, in 1873, an  
employee of the Department of Indian Affairs. On February 28, 1873, he had been given  
responsibility for administration and implementation of treaty promises. (Lovisek report, Ex. 28,  
p. 75.) In June 1873, he had also been appointed as a member of the Board of Indian  
Management for the Northwest Territories.  
 In those capacities and with his background, he clearly had knowledge of Canada's  
s. 91(24) powers and responsibilities with respect to Indians and Indian lands.  
 [In 1878, less than five years after the Treaty was signed, Provencher would be  
dishonourably dismissed from office by the federal government, after being investigated for  
corruption and incompetence in his dealings with the Indians, creating fictitious accounts,  
providing the Indians with poor quality, unwholesome food and equipment that was unfit for use,  
avoiding meetings with the Indians and harsh and improper treatment of the Indians.]  
Canada's Interests  
 In late September 1873, as the Commissioners travelled to the North West Angle to begin  
the Treaty negotiations, all the Treaty Commissioners knew that to the Ojibway, protection of  
their rights to continue to hunt, fish and collectively use the resources on their lands was  
paramount.  
 From Canada's perspective, a treaty needed to be completed. Canada needed to be able to  
ensure that settlers could safely pass through the Treaty 3 territory on their way to the fertile  
agricultural areas on the prairies and points further west. It needed to be able to ensure that the  
CPR surveyors and builders could do their work in safety. The Commissioners knew Canada  
needed a treaty to honour its commitment to British Columbia to build a transcontinental  
railway, and that the portion between Thunder Bay and Fort Garry was scheduled to be  
completed by December 31, 1876. Canada also needed to honour its promises to protect the  
Indians made to Great Britain as a condition of annexation of the HBC lands.  
 Saywell gave evidence that peaceful relations with the Indians were for Canada a  
practical necessity (Saywell, April 6, 2009 at p. 42.)  
   
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 They knew reaching agreement would not be easy. In 1871 and 1872, the Ojibway had  
pointedly refused to enter into a treaty. Unlike the Ojibway/Cree in the Treaty 1 and 2 areas, the  
Treaty 3 Ojibway had repeatedly resisted the overtures of the Canadian government. Ontario's  
written argument contains the following: The Ojibway "were articulate and forceful in pursuing  
what they saw as their interests, and quite capable of saying, "No."  
 Counsel for Ontario urged this Court to reject Milloy's evidence that the Treaty  
Commissioners were aware they were working within a tradition of placing the protection and  
guardianship of Indians in the hands of a higher government and as a result they took care to  
frame the language of the Treaty to allow "the federal government to mediate, in the post-Treaty  
period ... the possibly conflicting interests of a hunting versus an exploitative settler economy in  
the service of both development and the protection of the tribes affected by the transfer." He  
urged this Court to find that to Canada, "protection" meant "assimilation." He submitted that key  
aspects of the broader context of Indian policy and Constitutional, administrative, and  
institutional arrangements that shaped the making of Treaty 3, weighed against the drawing of  
that inference and rendered it implausible. Morris would have known that the federal government  
wanted to assimilate the Indians. He would have known that Canada's overall Indian policies  
were against continuation of traditional Indian lifestyle, including hunting and fishing, and in  
favour of the adoption of an agricultural lifestyle.  
 Milloy opined that while it was generally true that federal Indian policy at the time  
encouraged assimilation and the adoption of an agricultural mode of life, general policy  
considerations often gave way to more pressing priorities. In 1873, the importance of Canada's  
policy of assimilating Indians paled against its biggest post-Confederation challenge, that of  
assimilating its huge new Western Empire. Given the precarious security in the West due to  
Indian-related concerns, Canada, like the Imperial Government before it, recognized the wisdom  
of continuing the policies and strategies that had been behind the Proclamation of 1763, and of  
centralized control to further Canada's national priorities. Those responsible for Canadian Indian  
Affairs returned to the policy of "conciliation" and to the making of promises of protection  
necessary to achieve conciliation.  
 Counsel for the Plaintiffs submitted that the particular circumstances behind the Treaty 3  
negotiations differed from those of the other numbered treaties to Canada. Getting title to the  
Treaty 3 land so it could be settled and developed was much less important than securing access  
through the land. Chartrand agreed in cross-examination (January 21, 2010 at p. 117) that the  
major impetus for Treaty 3 was securing the immigrant travel route, unlike Treaty 1, for  
example, where it was acquiring the land so the fertile Red River area could be settled.  
 Whatever the agricultural potential in the localities of other numbered treaties, apart from  
the Rainy River, the Treaty 3 area had little agricultural potential. I note that lands on the south  
side of the Rainy River were in the United States. The Treaty Commissioners and the Ojibway  
both recognized that reality. Most of the 55,000 square mile Treaty 3 area was generally viewed  
as unpromising for agricultural development.  
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 As noted earlier, on November 12, 1870 Archibald had written Howe, opining that the  
land was stamped with a destiny of "perpetual sterility:"  
… the wildest imagination can never conceive this to be a country fitted for settlement, or in which  
the population could be a sustained by the produce of the soil. …  
The only exception to the general desolation of this region is on the Rainy River, where a narrow belt  
described as of two or three miles in width skirts each side of the river.  
The river banks indicate a soil much like that of the prairie ground here … But unfortunately these  
strips extend only a few miles, and …on the south side of the river is American territory ...  
... I should not consider the fee simple of the entire country, for agricultural purposes, worth as much  
as 100 acres of the prairie of Red River ...  
[Emphasis added.]  
 Simpson had expressed similar views in a report to Howe in 1870, in which he had  
written the following:  
"I took the line of country by the Mattawin and Shebandowan Rivers, so that I might judge for myself  
as to its adaptability for settlement, and I am now more fully of opinion than I was before that it is  
utterly unfit, it being all rock, swamp and lakes; from the end of Thunder Bay road in Lake  
Shebandowan to Fort Frances, Rainy Lake, there is not enough land to make a Township."  
[Emphasis added.]  
 On July 22, 1871, Archibald wrote (Ex. 4, p. 174) to Ottawa highlighting the differences  
between the quality of the land at the Red River and in the Treaty 3 area:  
…Nor indeed would it be right, if we look to what we receive, to measure the benefits we derive from  
coming into possession of a magnificent territory we are appropriating here [the Red River lands], by  
what would be fair to allow for the rocks and swamps and muskegs of the Lake country east of this  
Province… [the Treaty 3 lands]  
 As mentioned earlier, Lovisek noted in her report (Ex. 28) at p. 128 that Simpson told  
Treaty 1 and 2 Ojibway during the Treaty 1 and 2 negotiations that he had advised the Treaty 3  
Indians in July 1871 that their lands (i.e., the Treaty 3 lands) were "unfit for settlement."  
 Grant, who had travelled with Sanford Fleming on his 550 mile trip from Lake Superior  
to Red River in 1872, had remarked that the only land in the Treaty 3 area he considered suitable  
for agriculture was along Rainy River and perhaps around Lake of the Woods. (Lovisek's report,  
Ex. 28, at p. 71.)  
 Dawson had limited his rosy descriptions of agricultural potential to the Rainy River  
area: "…and on Rainy River there are areas where a soil of unsurpassed fertility awaits the  
agriculturalist." (Lovisek's report, Ex. 28, at p. 49.)  
 In his evidence, Chartrand did not suggest that agriculture was expected throughout the  
Treaty 3 territory. Rather, he said the Commissioners were likely envisioning that farming and  
agricultural settlement would happen along the Rainy River Valley, certainly as one prime area.  
 It would have been unrealistic for the Commissioners to encourage most of the Ojibway  
to try to completely supplant their traditional resource-based economy with an agricultural one.  
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101  
 While in his 1880 book (Ex. 9), Morris did refer to the advantages to the Indians of an  
agricultural lifestyle, he referred to agriculture as a supplement to their continuing traditional  
harvesting. He wrote at p. 288 as follows:  
They recognize the fact that they must seek part of their living from the mother earth … Such a  
disposition as this should be encouraged. Induce the Indians to erect houses on their farms and plant  
'their gardens' as they call them and then, while away on their hunts, their wives and children 'will  
care for their patches of corn and potatoes.'  
 The Commissioners understood that apart from the Rainy River area, the Treaty 3 lands  
would be of little interest to Euro-Canadian agriculturally-motivated settlers.  
 I note that in his Official Report after the completion of Treaty 3, dated October 14, 1873,  
Morris referred to a "lumber and mineral region," and made no reference to agriculture or  
settlement. He wrote: "[T]he Indian title has been extinguished over the vast tract of country  
comprising 55,000 square miles … and embracing within its bounds the Dawson Route, the route  
of the Canada Pacific Railway and an extensive lumber and mineral region."  
 The Plaintiffs submitted that the Commissioners perceived that the Treaty 3 area held  
dim prospects for successful widespread lumbering activities. Simpson had commented, "The  
timber is small and not fit for market, even if could be got out." [The rivers flowed north and  
west, away from settled Canada.]  
 While it was hoped that mining could be pursued, the Commissioners anticipated it  
would occur on a spotty basis and would be unlikely to interfere significantly with traditional  
harvesting activities.  
The Interests of the Ojibway/What the Ojibway Knew  
 Lovisek gave evidence that in 1873, the Ojibway were primarily concerned about  
preserving their way of life, including their right to continue hunting, fishing and trapping as in  
the past. They valued their seasonal round, the pursuit of their livelihood through traditional  
harvesting. Their culture and identities were intimately connected with hunting, trapping, fishing  
and harvesting wild rice as their ancestors had done since time immemorial.  
 The experts disagreed about the mindset of the Treaty 3 Ojibway as they entered into the  
1873 negotiations, especially with respect to (1) whether they perceived they needed to make a  
treaty at all, and (2) whether they understood and accepted that they would be required to change  
their way of life after the Treaty was entered into.  
1. Whether They Needed a Treaty  
 Counsel for the Plaintiffs, based in part on the evidence of Lovisek, submitted the  
Ojibway felt no need to enter into a treaty. They were under no immediate threat. They had  
already repeatedly refused to accept Euro-Canadian terms for their "barren and sterile land" that  
other First Nations who held magnificent fertile prairie lands had found to be acceptable in  
   
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Treaties 1 and 2. Unlike other First Nations, they had rejected Christianity. They loved their  
culture, lifestyle and religion, and had no desire to change.  
 The Globe had reported the "Indian logic" in 1872 as follows: "We don't want Canada's  
money. All we wish is for the white man to keep away."  
 The Shorthand Reporter reported in the Manitoban that the Rainy River Chiefs were  
"careless" about a treaty.  
 Counsel for Ontario submitted based on the evidence of Chartrand and Von Gernet that  
they had "a negative consciousness of their condition."  
 Chartrand opined (December 15, 2009 at p. 76) that the Ojibway were concerned they  
were facing inevitable, ongoing, Euro-Canadian influxes of people involving settlement and  
resource use. They perceived that the tide of Euro-Canadian movement was unstoppable, except  
perhaps by warfare. The increasing movement toward the West would eventually result in a  
presence on their traditional lands. His report, Ex. 60, contains the following at p. xii:  
In this context, there is no doubt that the Ojibway understood that they were negotiating terms and  
conditions for a surrender of their title to lands when they met Treaty Commissioners at the  
Northwest Angle of the Lake of the Woods in 1873. The 1871 report of the Treaty Commissioners  
and a letter from Simon Dawson preceding the 1873 negotiations, both indicate that the Ojibway  
understood, in the context of growing use of the Dawson route by travelling immigrants, that a  
surrender of their lands was now inevitable.  
[Emphasis added.]  
 In cross-examination (January 25, 2010 at pp. 15-17), Chartrand conceded that the early  
academic literature, positing that treaties were forced upon the Ojibway, has largely been  
supplanted by scholarship positing that the Ojibway had their own agenda and were able to shape  
their interactions with the Euro-Canadians. He agreed there is disagreement in the literature as to  
whether the Ojibway accepted that their way of life was passing. He conceded they believed that  
there would not be a massive movement and intrusion of the Euro-Canadians into the Treaty  
territory as a whole.  
 The concerns they had expressed to members of the Palliser and Hind expeditions had  
been somewhat allayed because of events between 1858 and 1873. They had moved from fear  
for their very survival, to guarded optimism that under the right conditions, they could  
successfully adapt and that a Euro-Canadian presence would not lead to their eradication or the  
end of their culture. They wanted to fully understand the practical consequences of any treaty  
and to secure material benefits before it was too late to do so. While they understood that there  
could be benefits to be derived from a treaty, they also understood that over time, as land was  
taken up, their hunting and fishing rights would be increasingly diminished/negatively impacted.  
 The 1871 Commissioners had noted in their official 1871 report (Ex. 4, p. 171) that the  
Indians looked upon the emigrants and others now passing through their country with evident  
satisfaction.  
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103  
 Both Chartrand and Lovisek agreed that before the Treaty was made, the Ojibway drew  
on their knowledge that the transportation route to the Red River was important to the Euro-  
Canadians. In effect, they understood it put them in a favourable bargaining position. Dawson  
had written:  
They are in general, keen traders, and seem to know the value of what they get and give, as well as  
any people in the world. Some of those who assemble at Rainy River for the sturgeon fishing, in  
summer, come from Red Lake, in the neighbouring State of Minnesota, where they possess hunting  
grounds; and, among these latter, are some who have been parties to treaties with the United States  
for relinquishing certain tracts for settlement, for which they are now in the receipt of annual  
payments. The experiences they have thus gained, has rendered them expert diplomatists, as  
compared to Indians who have never had such advantages, and they have not failed to impress on  
their kindred and tribe, on Rainy River, the value of the lands which they hold on the line of route to  
Red River.  
(Lovisek report, Ex. 28 at pp 29-30)  
 Lovisek opined that the Treaty 3 Ojibway understood in 1873 that their altered position  
was favourable. They had observed that the settlers were passing through their territory, not  
staying to settle on it. They perceived that a Euro-Canadian presence would not interfere much  
overall with their way of life. The Commissioners did not advise and they did not accept that  
their way of life must change. They perceived there was room to share their resources, without  
affecting their subsistence harvesting. They did not foresee that sharing would cause resource  
depletion. At the same time, they believed there could be benefits to be derived from a Euro-  
Canadian presence. Her evidence on October 21, 2009 contains the following:  
A. Well, their altered position relates to the Ojibway prior to the construction of the Dawson Road  
not having large-scale interactions with non-native people and now having observed the actions of  
white people through their area have essentially had a different perspective or altered perspective  
about what that interaction involved.  
Q. And what is it about the behaviour of white people that has led the Saulteaux, in Mr. Dawson's  
view, to adopt a favourable view of their altered state, their altered position?  
A. Probably … as Dawson described -- that the activities by the white people were unobtrusive …  
didn't interfere with actions of the Ojibway, and … provided benefits for the Ojibway, and for this the  
Ojibway had a favourable view about the white people coming into their territory.  
Q. And what are the benefits that accrued to the Ojibway?  
A. Well, I think I described some of them yesterday. The Ojibway would be provided with work  
opportunities such as canoeing some of the barges of immigrants packages, parcels and other related  
migration materials. They would be also selling some of their wood for the steamships and for other  
purposes being used in the construction of the Dawson road, and … related activities to the  
construction of the Dawson Road where they would find employment.  
…
Q. Now I'd like you to step back … and … put this … in the context of the Ojibway approach to  
assessing circumstances or events.  
A. … it's a characteristic of the Ojibway that has been described in the academic literature,  
particularly by a linguist … Dr. Mary Black Rogers. And she described this characteristic using a  
technical term called percept ambiguity, which actually means that the Ojibway tend to adopt a wait-  
and-see attitude towards changes that occur in their environment. So with respect to the construction  
of the Dawson Road and the prior treaty negotiations, this is an example where the Ojibway have  
watched and observed what's been happening in a portion of their territory and have decided that the  
activities by these people have not interfered with their use of the land and, in fact, have added  
benefits.  
[Emphasis added.]  
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104  
 Lovisek gave evidence that the Ojibway understood that the lands the government wanted  
were the land related to the construction and operation of the Dawson Route, and the land needed  
for the construction of the Canadian Pacific railway. They understood that away from the  
Dawson Route and the CPR right-of-way, their way of life would not change. Despite what they  
considered to be their favourable existing circumstances and their lack of a need for a Treaty,  
some of the Chiefs envisaged benefits from establishing an alliance with a treaty partner.  
 The gist of Lovisek's evidence was that the Ojibway would have refused to enter into a  
treaty if they had perceived that the detriments would outweigh the benefits.  
2. Whether They Understood They Would Be Required to Change Their Way of Life  
 The experts disagreed about the understanding of the Ojibway of the implications of a  
treaty at the time they entered into the negotiations.  
 Lovisek and Chartrand agreed that Morris never clearly explained to the Ojibway what he  
wanted from them. Morris never identified what lands were wanted (Lovisek, October 23, 2009  
at p. 83.) He never discussed "taking up for settlement, mining, lumbering" etc. with them. He  
did not use phrases such as "if you give up your lands," "if you sell your lands." Like Dawson, he  
told them he wanted to settle all matters of the past and present so that the white and red man  
will always be friends. Lovisek opined that the Ojibway would not have understood from what  
Morris said that the Commissioners were seeking not only a surrender of all of their lands, but  
also a surrender of their right to harvest renewable natural resources on those lands, in 1873 or at  
any time in the future.  
 While the experts agreed that Morris did not clearly explain what the Ojibway were being  
asked to give up, they disagreed as to whether such an explanation was necessary.  
 Von Gernet opined (December 10, 2009 at p. 102) no explanation was needed because  
the Plaintiffs already understood the negative implications of land cessions. It was the general  
understanding of Aboriginals at the time that after a treaty was signed, Euro-Canadians would  
unilaterally undertake development on ceded lands and that there would be no further  
consultation with them. The Ojibway already understood and accepted that after the Treaty,  
when Euro-Canadians occupied their lands, they would no longer be able to hunt on them.  
 Von Gernet opined (December 10, 2009 at p. 102) that the Ojibway understanding of the  
implications of treaty making was primarily based upon early Aboriginal experience in other  
areas. By 1873, over 300 land cession treaties had been entered into in the United States. There  
had been "dozens" in Upper Canada.  
 In cross-examination, he conceded that the Treaty 3 lands were much larger than those  
covered by the early Upper Canada treaties (which did not contain clauses expressly protecting  
Aboriginal harvesting rights.) They had differing agricultural potential. At the time the treaties in  
southerly Upper Canada had been negotiated and concluded, the First Nations there understood  
that widespread agricultural settlement was imminent.  
 
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
105  
 There was evidence that of the earlier Canadian treaties, the circumstances of the 1850  
Robinson Treaties were most similar to the Treaty 3 circumstances. Chartrand agreed (January  
21, 2010 at p. 72) that because of kinship relations, before the 1873 negotiations, the Treaty 3  
Ojibway had received information about the Robinson Treaties. The Treaty 3 Ojibway knew  
their lands were more similar to the Robinson Treaty lands than to the more southerly lands in  
Upper Canada. Commissioner Robinson had explained the difference between the Robinson  
Treaty lands and lands further south. The more southerly lands had much better agricultural  
potential. Occupation on them by Euro-Canadian farmers in a manner that would preclude  
hunting had been immediate on them. The Treaty 3 Ojibway knew Commissioner Robinson had  
told the Robinson Treaty Ojibway that their lands were "notoriously barren and sterile" and  
"would in all probability never be settled except in a few localities by mining companies" and  
that they would be able to retain possession of their hunting grounds in the interior as follows:  
they would relinquish nothing but a mere nominal title and would be able to "continue to enjoy  
all their present advantages ..."  
 Von Gernet opined that the Ojibway Robinson Treaty signatories would not have  
accepted those specific assurances. He said on December 7, 2010 p 24, "That's what they're told.  
But they are not stupid. They understand that settlers come."  
 The experts all agreed that the Treaty 3 Ojibway had their closest ties with relatives south  
of the American border, the Red Lake and Pembina Chippewas, who had signed the Old  
Crossing Treaty in 1863. During the Old Crossing Treaty negotiations, Commissioner Ramsey  
made the following representation:  
When a man sells his horse, he loses the use of him and must make do without a horse or buy  
another. But, in this case we pay ... the value of the horse ... and [you] get back the horse to use as  
much as [you] choose. We buy the … lands and then permit [you] ... to use [them] as before, to hunt  
for game in the woods and prairies and to fish in the streams. So that [you] lose nothing whatever by  
the arrangement ... while [you] will gain many things of great value which [you] do not have ...  
 Of that assurance to the Chippewas, Von Gernet said on December 7, 2009 at p. 24,  
"They are not going to buy into this."  
The Ojibway Understanding of What They Were Being Asked to Give Up  
 Unlike Von Gernet who inferred that the Ojibway understood Euro-Canadian type  
concepts related to land and already understood they were giving up their lands, as noted earlier  
in Part 5, The Ojibway Perspective – Ojibway History. Lovisek and Chartrand both agreed that  
while the Ojibway had a strong sense of territory they had no Euro-Canadian type concept of  
buying or selling lands (Lovisek October 22, 2009 at p. 82; October 23, 2009 at p. 91.) In  
contrast to the signatories of Treaties 1 and 2, for instance, who had lived in the vicinity of Euro-  
Canadians since at least 1817, the Treaty 3 Ojibway had no experience with Euro-Canadian land  
transactions. The idea of surrender of land was "alien to the Ojibway understanding" (Lovisek,  
October 23, 2009.)  
 Lovisek opined that the Ojibway understood that the interests of the Euro-Canadians  
were narrowly focused on the vicinity of the Dawson Route and the CPR right-of-way, that the  
 
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
106  
Government wanted (1) land in the area of the Dawson Route related to its construction and  
operation and (2) land needed for the construction of the railway. (October 23, 2009 at p. 80.)  
The Ojibway understood that Euro-Canadian activities along the Dawson Route would have  
some impact on their fishing. That is why they sought and obtained the assurance that their  
sturgeon fisheries along the Route would be incorporated into their reserves for their own  
exclusive use. (Dawson's correspondence indicated that for some time they had been discussing  
the need to protect their gardens and fisheries in the Dawson Route area.) However, except in the  
vicinity of the Dawson Route and the CPR, they did not understand or agree that such sharing  
would interfere with their traditional sustenance way of life. Away from the Dawson Route, the  
Commissioners and the Ojibway expected compatibility between Euro-Canadian uses and  
continuing Ojibway harvesting.  
 Lovisek said "land did not have the same connotation of value as resources." The ability  
to harvest resources on the land was what was important. Their primary concern was the  
availability of resources for their collective use, not what we would describe as "ownership" of  
land. Apart from some lands and resources in the vicinity of the Dawson Route and the CPR, the  
Ojibway did not understand that the Commissioners were asking them to give up using the  
resources on their lands. They did not understand that resources could be what Euro-Canadians  
would describe as "owned." The Ojibway did not perceive that resources went with the land  
(October 23, 2009 at pp. 127-128.)  
 Lovisek gave evidence that some historians have questioned whether the Ojibway would  
have paid much attention to a statement that they would be allowed to hunt and fish because they  
already had the right to hunt and fish, and Morris did not advise them of any intention to take  
away that right. The Ojibway may have understood Morris' use of the words "before the other  
lands are wanted" to imply that a further request would be made if and when lands were wanted.  
She noted he did not specify the lands that might be wanted or identify any reason why lands  
might be wanted.  
 In cross-examination on January 26, 2010 Chartrand said the following at pp 156-157:  
A. But in terms of how the Ojibway would have conceived their ability to engage in renewable  
resource harvesting activities, they would have conceived that as being practices that they believed  
could be conducted with impunity within their traditional territories. That this was something that not  
only could they do, but this was part of their way of life.  
And so to get back to the characterization of the practice as a right, I think that the position of the  
Ojibway was that these were practices that were part of how they went about making a living.  
[Emphasis added.]  
 I have already noted that in 1871, Simpson had advised the Treaty 1 Indians that he had  
informed the Treaty 3 Indians that their land was "unfit for settlement" (Lovisek report, Ex. 28 at  
p. 128.) The Ojibway did not expect widespread Euro-Canadian agricultural activity and  
agricultural settlement would occur in most of their territory, i.e., their lands located away from  
the Rainy River/Rainy Lake/Dawson Route area. They expected reserves to be created to protect  
their gardening, hunting and fishing activities in the Rainy River area and at the same time they  
expected to derive additional benefits from Euro-Canadian activities. Most of their lands were  
located on the Canadian Shield, where subsistence by agriculture alone would have been  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
107  
difficult. As they did not believe that agriculture could replace it, they saw it as a supplement to,  
not a substitute for, traditional harvesting.  
 Chartrand's cross-examination contains the following:  
Q. …they appreciate, by this time now, they've had conversations with two rounds of treaty  
commissioners, with Dawson, they've seen the Red River area, and I'm going to suggest to you that  
they certainly now appreciate that physically their territory on its whole is quite different in character  
than the Red River territory?  
A. Yes, overall I believe that that would be known to the Ojibway.  
 Chartrand gave evidence on January 19, 2010 at p. 64 that the Ojibway understood that  
under a treaty agreement, they would allow the presence of Euro-Canadian outsiders on their  
lands. They understood that Euro-Canadians would come into the treaty territory and use and  
occupy certain lands. They acknowledged and agreed to "a land cession of some sort as they  
understood it within the framework of their own culture." [Emphasis added.] He agreed the loss  
of exclusive use of land did not necessarily imply the loss of their harvesting rights per se. He  
said in contrast to lands in a general sense, they conceived that what was being given up under  
the Treaty was something of a different order than an ongoing ability to harvest.  
 Chartrand's evidence on January 19 and 26, 2010, contains the following, which sheds  
light on why the Ojibway expected compatibility between post-Treaty traditional harvesting and  
Euro-Canadian land uses:  
Q. And I think you'd also agree with me that we'd have to be careful not to view the phrase  
subsistence practices in some derogatory near-starvation sense; is that fair?  
A. That's correct.  
Q. Is that, in fact, looked at from an Ojibway perspective, subsistence practices describe being able to  
harvest to satisfy needs, to maintain one's way of life and consuming what one harvests?  
A. Yes, that was the nature of the understanding of what we call a subsistence economy.  
Q. But as such, they would not harvest to maximize their harvest per se?  
A. Absolutely not.  
Q. So in other words, for example, if we look at the fisheries, they would not just keep on harvesting  
fish as long as they could. Instead they would harvest fish to satisfy their need for fish?  
A. That's correct.  
…
Q. But going further than that is that that would also suggest that there would be resources potentially  
available for other people?  
A. Yes. There would be.  
Q. So that the continuation of a traditional life, I'd suggest to you, would leave room for other people  
to also enjoy the resources off of the Ojibway's lands. And that's leaving aside the question of  
territoriality for a moment.  
A. Yes. Up to an extent I think that that would have been a fairly reasonable assumption on the part  
of the Ojibway.  
…
Q. Right. So it's -- in a sense is that allowing others to be part of the land and to use the land does not  
necessarily imply the loss of their Harvesting Rights?  
A. Not the loss of the right per se. …  
Q. … the Ojibway framework is that there was room to accommodate other people because they were  
not pursuing activities that consumed all the resources, that is, the Ojibway weren't, there were  
resources left available, right? That's the first step in this analysis, correct?  
A. That may have been. …  
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108  
…
Q. And they want to continue to access fish into future generations?  
A. This is what the chief is stating as being his desire regarding succeeding generations…. It's into an  
indefinite future.  
[Emphasis added.]  
…
A. The shoreline of Rainy River would not necessarily have been taken up by family hunting  
territories. There would have been areas that were of shared band usages as being an area where, for  
example, bands would re-congregate or proximate to Fort Frances multiple bands would congregate  
to hold spring and summer ceremonials and take part in the fisheries.  
By and large, we have pretty consistent evidence to the effect that family hunting territories, for the  
most part, were situated inland.  
 Chartrand said on December 15, 2009 at pp 71-72 that the Ojibway reference to sale of  
land, made during the Palliser and Hind expeditions, reflected their ability to engage to a limited  
extent in cross-cultural communication, but at the same time demonstrated their refusal to engage  
in similar practices.  
 In judging whether Euro-Canadian activities significantly interfered, they understood  
they would consider benefits as well as detriments. If they were benefiting from Euro-Canadian  
activities, they would be likely to view some interference with their harvesting as acceptable. For  
example, Lovisek said she would expect complaints if forestry were damaging or interfering with  
their activities.  
 Lovisek said that she was not saying that the Ojibway understood that they were only  
giving up exclusive territorial rights in respect of the area of the Dawson Route and the CPR.  
They understood and agreed to give up their exclusive use of the whole Treaty 3 territory. Her  
evidence on October 23, 2009 contains the following at pp. 133-135:  
THE COURT: What if somebody wanted to put a house on a piece of their -- or on a piece of the  
Ojibway territory?  
THE WITNESS: Well, after the treaty, there was no objection to a house going on to a certain area.  
They weren't taking down houses like they were previous to the treaty. They accepted this. There was  
no objection to that.  
THE COURT: And that wasn't just on the what we've been referring to as the right-of-way?  
THE WITNESS: That's right.… They were willing to share certainly that land portion with settlers  
and their resources with settlers as long as they benefited from whatever activities the settlers were  
engaged in.  
Q. Sorry, what land portion were they willing to share with settlers?  
A. Well, if the settlers set up a house, for example, that wasn't on the right-of-way, they wouldn't  
have an objection to that, as long as it didn't interfere with a hunting or fishing area or an area which  
they had used for gardening.  
The Meaning of the Harvesting Clause  
What did the Ojibway and the Commissioners Understand on October 3 about whether  
Morris' October 1 Proposal was Accepted? Had it been Superseded by a Different Promise  
by the time the Treaty was Signed on October 3?  
 Lovisek's report (Ex. 28) contained the following with respect to Morris' October 1  
proposal, at pp. 86-87:  
   
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109  
In his opening offer Lieutenant-Governor Morris offered the Saulteaux a bundle of items including  
friendship, reserves, schools, money, presents of goods and provisions. One offer in the bundle of  
terms 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 will  
always be friends. I will give you lands for farms, and also reserves for your own use. I have  
authority to make reserves such as I have described, not exceeding in all a square mile for  
every family of five or thereabouts. It may be a long time before the other lands are wanted,  
and in the meantime you will be permitted to fish and hunt over them. I will also establish  
schools whenever any band asks for them, so that your children may have the learning of the  
white man. I will also give you a sum of money for yourselves and every one of your wives  
and children for this year. I will give you ten dollars per head of the population, and for  
every 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 of  
goods and provisions to take you home, and I am sure you will be satisfied.  
Morris' statement : "It may be a long time before the other lands are wanted, and in the meantime you  
will be permitted to fish and hunt over them" will be the only statement Morris makes during the  
three days of recorded oral negotiations that refers to the taking-up clause as drafted by Morris.  
Morris makes this reference as one of many offers which ranged from the intangible (friendship) to  
the tangible (farm lands, reserves, schools, money, payments for chiefs, goods and provisions).  
The Saulteaux responded to Morris' offer with silence. Silence is not an indication of consent for the  
Saulteaux. …  
[Emphasis added.]  
 Von Gernet and Chartrand mentioned Morris' statement on October 1 that "it may be a  
long time until the other lands are wanted" and that "in the meantime you will be permitted to  
hunt and fish on them" as his clearest reference at any time during the negotiations to the  
Harvesting Clause.  
 The experts agreed there was no reference on October 2, 1873 to continuing hunting and  
fishing.  
 They disagreed about whether there was a discussion about harvesting before the Treaty  
was signed on October 3, 1873.  
 Chartrand maintained throughout his evidence that the only discussion of Harvesting  
Rights was on October 1. In cross-examination he said (January 21, 2010 at p. 86) his opinion  
that the Ojibway knew that "taking up" was "something the Treaty was concerned about"  
focused on the "direct explanation" given by Morris on October 1. He said the Ojibway did agree  
on October 3 to Morris' October 1 proposal.  
 Lovisek said they did not. She expressed her view that this Court should not assume or  
conclude that the Ojibway agreed with Morris' October 1 proposal that they would be able to  
hunt and fish until the lands are wanted, in the absence of their positive and specific affirmation  
of it. Without an express statement of agreement, the Commissioners could not, and this Court  
should not, conclude that the Ojibway agreed to the proposal that they would lose those rights  
when the lands were wanted.  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
110  
 In considering whether the Ojibway accepted the October 1 proposal, Lovisek opined that  
all of the circumstances must be considered in context. The Ojibway were extremely polite. They  
would not voice objections in the form of outright denial or rejection. Instead, they would  
typically change the subject or even make a "contradictory statement of agreement." That is what  
they did on October 2, 1873 when they responded to Morris' statement that the water and wood  
in their territory was owned in common. In 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 white  
man's. It is our wood and water." They did not say to Morris, "You are wrong about the wood  
and water." Without directly challenging Morris' statements that wood and water were the  
common rights of all the subjects of Her Majesty, they did assert that the country was their  
country and the trees and the water were theirs.  
 Lovisek concluded that on October 3, 1873 the Ojibway did not accept the bundle of  
terms Morris had presented on October 1. She expressed the view that while this Court should  
not ignore Morris' October 1 statement, it should not consider it in isolation. The Ojibway made  
no reply on October 2 to Morris' October 1 offer. They never positively affirmed they were  
accepting the October 1 offer. They did specifically present Treaty terms that they found  
acceptable: "They must have the privilege of travelling through the country." Those terms (that  
they must have the privilege of travelling through the country) did not include any limits on their  
Harvesting Rights (Lovisek, November 16 and 23, 2009.)  
 The Commissioners knew the Ojibway Chiefs could not agree to a proposal until they  
had discussed and agreed to it in Council. Also relevant are the Commissioners' offer of  
ammunition and twine in perpetuity on October 3, Nolin's reference in his Notes to a discussion  
on October 3 about the Ojibway being free "as by the past" for their hunting and wild rice  
harvesting, Dawson's recollections of promises made to induce the Ojibway to enter into the  
Treaty and Dawson's lack of any mention of any "taking up" provision.  
The Promise of Ammunition and Twine  
 Lovisek opined that the Commissioners' promise on October 3 to provide ammunition  
and twine on an ongoing basis is directly relevant to the Ojibway understanding of the harvesting  
promise. She said (October 22, 2009) the Ojibway would have understood from that promise that  
they were being assured that after the Treaty was made, their Harvesting Rights would continue  
indefinitely.  
 Milloy gave evidence on October 13, 2009 about the history and significance of the offer  
of ammunition and twine:  
A. … the …negotiating model …used by the Canadian government really is the old fur trade model  
... So it tells you that practice is continuing and indeed that they expect that practice to continue, that  
is, hunting, gathering, trapping, trading …  
[Emphasis added.]  
The Nolin Note  
 Lovisek wrote in her report (Ex. 28) at p 119:  
   
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
111  
The greatest inconsistency between the Nolin Notes, Dawson Notes and the Morris Document is the  
term: "free as by the past for their hunting and rice harvest."  
 The experts disagreed on the sequence, significance and content of a discussion recorded  
in contemporaneous notes prepared by Nolin on October 3: "the Indians will be free as by the  
past for their hunting and rice harvest."  
 All the records indicate that Nolin made the note on October 3 after a Chief mentioned  
they must have the privilege of travelling through the country.  
 The reference to the Indians being free for their hunting and wild rice harvest does not  
appear in that form in any of the other notes of the October 3 discussions. The experts attempted  
to provide explanations for this discrepancy.  
 Chartrand gave evidence (January 14, 2010 at p. 71) that Nolin's note is "ethno-  
historically problematic" because "Setting aside the Nolin notes, the available documentary  
evidence suggests the only time at which a harvesting promise was made was October 1."  
 Chartrand opined that on October 3, Nolin was recording Morris' statement made two  
days earlier on October 1 that it may be a long time until the lands are wanted, and in the  
meantime the Ojibway would be permitted to hunt and fish on them (January 14, 2010 at pp. 68-  
69.]  
 Lovisek gave evidence that the Chief's demand, made in Ojibwe and interpreted into  
English as, "They must have the privilege of travelling through the country" was practical and  
important, related to their being able to carry on their traditional subsistence activities. It was  
critical to the Ojibway that they be assured that their practice of travelling over the land to  
harvest rice, to fish and hunt, to pick berries and attend at their annual religious and cultural  
ceremonies would not change. She gave the following evidence on October 22, 2009:  
A. … The best interpretation that I have seen for what this actually means comes from linguistic  
work by Dr. John Nichols, who translated some of the Chippewa treaties. His view is when you have  
a conjunction such as hunting and wild rice gathering, which are disjunctive terms, when they are  
placed together in the Ojibwe language, what they mean is making a living. So the hunting and rice  
gathering would mean that they have rights to make a living from resources, rather than being  
specific to just hunting or wild rice.  
[Emphasis added.]  
 While Chartrand agreed (December 15, 2009 at p. 88) that the Ojibway believed they  
would be able to travel through the country for a full range of traditional social and cultural  
purposes, including traditional harvesting activities, he asserted that the Chief's demand on  
October 3 about travelling about the country should be interpreted literally, as relating to travel,  
not maintenance of Harvesting Rights. (January 14, 2010 at pp 68-9.) His evidence on January  
14, 2010 also includes the following at pp. 60 and 62:  
A. …And so I believe that at that point, when one of the chiefs places the demand in regards to  
having the privilege of travelling about the country where it is vacant, James McKay points out to the  
commissioners that this is something that he has already discussed and confirmed with them.  
Q. So who was McKay talking to when he makes the statement that's reported here?  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
112  
A. I believe -- I've always read and interpreted the -- this flow of reporting in The Manitoban account  
as indicating that McKay was addressing the Commissioners.  
…
Q. Do you think McPherson would have translated this statement by McKay into Ojibwe?  
A. I see no reason to believe that he would not have. The account goes on to report a new question  
dealing with a different issue altogether. And so presumably McKay's statement, "Of course, I told  
them so," having been interpreted in Ojibwe, satisfied the Ojibway.  
…
So the Ojibway at that point, after the interpreting of the demand in English, would have seen  
McKay explain to the commissioners something in English that presumably gets interpreted back into  
Ojibwe and presumably as a satisfactory answer…  
[Emphasis added.]  
 Counsel for the Plaintiffs submitted, based on Lovisek's evidence, that McKay  
understood the Chief's demand to mean, "We must have the right to make a living from  
resources." Nolin recorded McKay's response made in Ojibwe, "You will be free as by the past  
for your hunting and rice harvest," (as recorded by Nolin.) McKay then said to the  
Commissioners in English, "Of course, I told them so." In other words, McKay on behalf of the  
Commissioners in their presence and with their knowledge, responded to the demand with an  
unqualified assurance that they would be able to carry out their subsistence harvesting as in the  
past.  
 Chartrand agreed in cross-examination that "hypothetically," on October 3 Nolin  
recorded a different discussion about traditional harvesting than the one that had taken place on  
October 1. However, despite his concession (January 25, 2010 at p. 113) that the sequence of the  
matters covered in Nolin's Notes almost perfectly matched the sequence of agreed-upon  
promises on October 3, he maintained (January 25, 2010 at p. 125) that when the Ojibway Chief  
said, "We must have the privilege of travelling about the country," no one provided him with an  
answer because Nolin was busily recording Morris' October 1 statement (using a reference to  
wild rice when Morris had not mentioned wild rice on October 1.) Rather than responding to the  
Chief's demand, McKay turned to the Commissioners and said, "Of course I told them so."  
 In cross-examination counsel for the Plaintiffs suggested to Chartrand that if McKay,  
having heard the question in Ojibwe, understood it to be a demand for an assurance they would  
be able to use the country as they had before to make a living from harvesting, and if McKay had  
responded using the words recorded by Nolin in his Notes, "the Indians will be free as by the  
past for their hunting and wild rice harvest" in Ojibwe to the Ojibway, then said to the  
Commissioners in English, "Of course I told them so," there would have been nothing more in  
English for McPherson the translator to translate or for the Shorthand Reporter to record.  
 Chartrand's cross-examination on January 25, 2010 contains the following at pp. 131-  
133:  
A. … if we're working from the assumption that there is an Ojibwe language discussion happening  
between McKay and the Ojibway respecting being free as by the past for hunting and rice harvesting,  
then we have to come up with an alternate explanation as to why that does not get interpreted into  
English.  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
113  
To put it bluntly, George McPherson, who up to this point has, by all accounts, been doing a good job  
in keeping up with the discussions, we have -- we have different wording between sources, but, I  
mean, that reflects the writing ability of -- of the document producers, but --  
Q. Well, I suggest the obvious explanation, which is that Mr. McKay provided them with an answer.  
… there was …no need for McPherson to translate it because McKay turned to the commissioners  
and told them "of course, I told them so".  
A. Well, why would McPherson not interpret in English the discussion taking place between McKay  
and the Ojibway?  
Q. Well, that's only problematic, I suggest to you, if you take the comment about travelling about the  
country to be quite literalistic, that it's only a question about walking about or snowshoeing about or  
canoeing about the country. If we take the alternate hypothesis that I put to you that it's a reference to  
being free to use the country as before, then it's all been translated, correct?  
A. And yet why do we have two independent records presenting a very consistent reference to not  
general use of the country but a reference to travelling about the country?  
Q. No, I'm not saying that the word travelling wasn't used in the translation, but that everybody there  
knew that … travel for these people was intimately tied up with using their lands. This was no secret  
to Morris or Dawson or Provencher, was it?  
A. No, I certainly agree with that proposition.  
 Chartrand continued to posit that on October 3, Nolin was recording a statement made by  
Morris two days before. Nolin did not write down any answer McKay gave because at that point  
he was "recalling a very important promise made on October 1 and this is what he was trying to  
jot down to the best of his ability."  
 Chartrand maintained on January 25, 2010 that his assumption that Nolin was referring to  
Morris' October 1 statement was preferable because:  
At p. 138  
"it's an explanation that allows us to make fewer assumptions as to what is transpiring between  
McKay and the Ojibway, and McKay and Morris… It allows us to have Nolin record a harvesting  
promise for which we have two independent records indicate it was made on October 1st…."  
At p. 143:  
A. … the hypothesis that I put forth … allows a reconstruction of the different records, and a  
reconciliation at an explanatory level that…involves …the fewest assumptions about what transpired  
between the parties prior to October 3 entering that specific exchange.  
 His cross-examination on January 25, 2010 contains the following at pp. 140-141:  
Q. Now, I take it you'll agree with me that if, in fact, you're wrong about this, and the quotation at  
page 233 of Ex. 4 from the Nolin notes that says:  
"The Indians will be free, as by the past, for their hunting and rice harvest."  
Turns out to be McKay's words -- so that's a hypothetical I'd like you to take -- I also suggest to you  
then that that would be evidence of how McKay would explain the harvesting clause?  
A. Well, not necessarily. Not in terms of specifics. I don't see how that would be exactly how  
McKay would go about referencing the harvesting clause in Treaty 3. …We're wrestling with an  
English-language statement that is at odds with what the text of Treaty 3 says, and is at odds with  
available accounts of how Morris alluded to the harvesting promise on October 1st. …  
[Emphasis added.]  
 Chartrand initially agreed that Morris saw Nolin's Note. He was aware of Nolin's entry  
that the Indians "would be free as by the past in their hunting and wild rice harvest." He attached  
the Notes, without comment, to his Official Report dated October 14, 1873. The content of the  
Nolin Note was not a secret to government officials (January 25, 2010 at pp 110-111).  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
114  
 Lovisek wrote in her report (Ex. 28) at p. 114: "More importantly Morris saw no  
inconsistency between what Nolin had recorded during the treaty negotiations and what Morris  
considered had actually transpired. No official in Ottawa commented in writing about any  
discrepancies between the Nolin Notes and the Morris Document."  
 Chartrand could not explain why Morris did not comment if he believed the Ojibway had  
accepted his October 1 offer. However, he said later, "The only document on which I recall  
Morris placing any weight is the account in the Manitoban newspaper" and still later, "I don't  
think he would have scrutinized the alternate records to that extent." (January 25, 2010 at pp. 134  
and 136.)  
 Von Gernet said on December 1, 2009 at p. 83 that by attaching a copy of the Nolin  
Notes, Morris implicitly saw them as being either complementary or in accord with his own  
understanding and descriptions of events. He said on December 2, 2010 at p. 14 that Morris  
included the Nolin Notes and the Manitoban clippings and suggested they needed to be kept as  
part of the Treaty record: "He [was] not trying to hide any of this ... he [was] being as open as  
possible about it." While Von Gernet said they were consistent with what was happening in the  
other evidence he also said, "they should not be used proactively."  
 Chartrand posited if McKay understood the Ojibway were referring to continuing their  
traditional harvesting as in the past, it was unlikely that he would have said, "Of course I told  
them so," since that would have been contrary to what his boss Morris had said two days earlier.  
His re-examination on January 27, 2010 contains the following at pp 3-4:  
Q. And is it likely, in your opinion, if you have an opinion, that Mr. McKay would have explained  
the harvesting promise at any time to the Indians in the unqualified way we see reported in the Nolin  
notes?  
…
THE WITNESS: I think it's unlikely. I think that James McKay would have, and I believe I made a  
comment to that effect, would have provided some presentation of the harvesting promise that would  
have been consistent, at least with the harvesting promise that Alexander Morris gave on October 1st.  
[Emphasis added.]  
 There were discrepancies among the various records as to whether the Chief's demand on  
October 3 about travelling about the country included the words "where it is vacant." Chartrand  
gave evidence (January 14, 2010 at p. 58 and January 25, 2010 at p. 125) that it is "debatable"  
and "moot" whether it included those words.  
 Dawson referred only to "the privilege of travelling through the country."  
Dawson's Post-Treaty Recollections of the Treaty Negotiations relevant to the Intent and  
Meaning of the Harvesting Clause  
 As noted earlier, Dawson had long insisted that the Ojibway fully understand the terms of  
any treaty they were being asked to sign and predicted that if they did, they would abide by its  
terms.  
 
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
115  
 Given his long association with the Ojibway, his participation as Treaty Commissioner in  
1871, 1872 and 1873, Lovisek opined (October 22, 2009 at p. 113) that Dawson's recollections  
are significant in shedding light on what was promised to the Ojibway and understood by them.  
 I have referred to Dawson's post-Treaty recollections here, because they specifically  
relate to what transpired at the 1873 negotiations. They provide important information about  
what was represented by the Commissioners and what was understood by the Ojibway.  
 In the 1880s Dawson was a federal Member of Parliament. Concerns about the threats to  
Treaty 3 fishing as a result of commercial fishing were raised in Parliament. On May 19, 1888,  
Dawson's remarks were recorded in Hansard and quoted by Lovisek in Ex. 28 at pp. 165-166:  
In response to a query from Sir Charles Tupper in the House of Commons about Treaty 3, Dawson  
reiterated his understanding of the taking-up clause:  
The treaty stipulates that the Indians shall have the right of fishing all over the territories as  
they formerly had. Xxx What becomes of that stipulation if the white man is allowed to go  
wherever he likes, and to make a speculation in sweeping the fish out of the lakes & sending  
them to the markets of the world?  
Sir John A. MacDonald joined the discussion by adding:  
The treaty, as the Hon gentleman says, provides that the Indians who come under it shall  
have the right to fish in all the waters within the area surrendered. That, however, does not  
give them exclusive rights to fish, & it appears the Indians do not object to ordinary fishing  
being done in those waters by other parties, & they do not seek to prevent settlers from  
fishing there…  
The debate ended when another Member of Parliament asserted that fisheries belonged to the  
Provinces. The Prime Minister disagreed with the Member but stated that whatever his Minister did  
would have to comply with federal jurisdiction. Dawson…kept up his efforts to protect Saulteaux  
fishing rights. …  
…
Dawson … raised this issue before the House of Commons in 1887, 1888, 1889 and 1890.  
 Dawson set out his understanding of the Harvesting Promise in a letter to the Deputy  
Minister of Indian Affairs dated May 28, 1888 (Ex. 1, tab 552) as follows:  
In regards to the clause of the Treaty which you quote, taken by itself, it [the treaty] does convey to  
the Indians the right to pursue their avocations of hunting and fishing and of course this right, so  
conveyed, has in equity to be considered not from the wording, alone, but from the evident spirit and  
meaning of the Treaty, as well as from the discussions explanatory of the wording which took  
place at the time the Treaty was being negotiated …  
…
I am in a position to say that as an inducement to the Indians to sign the Treaty, the  
Commissioners pointed out to them that along with the land reserves and money payments,  
they would forever have the use of their fisheries. This point was strongly insisted upon and it  
had great weight with the Indians, who for some years previously had persistently refused to  
enter into any treaty. Now upon the back of this, the white man is allowed to bring into play the  
appliances of modern science and recent discoveries in the mechanical arts of fish catching and so  
sweep the waters of every living thing down to a minnow, what becomes of the stipulation in  
[illegible.]  
…
With respect to the Lake of the Woods, the Government of Ontario should, I think, be asked to  
reserve the whole Lake for the use of the Indians.  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
116  
Not to … prevent settlers catching fish for domestic use but certainly in such a manner as to guard  
against the use of destructive appliances which fish traders use in securing car loads of fish for  
export.  
[Bold and underlining emphasis added.]  
 Dawson wrote a letter (Ex. 1, Vol. 14, tab 630) to Indian Affairs dated April 26, 1896:  
'It was distinctly held out to them that they would have the right to pursue their ordinary avocations  
of hunting and fishing throughout the tract they were about to surrender and stipulation embodying  
this understanding appears in Treaty 3'"  
…
And further, to allow the said chiefs and their tribes the full and free privilege to hunt over the  
territory now ceded by them and to fish in the waters thereof as they have heretofore been in the habit  
of doing….  
[Emphasis added.]  
I have already noted that given their own practice of harvesting only what they needed, the  
Ojibway had had no experience with resource depletion. Dawson's letter continued: "[I]n view of  
the stipulation it could never in reason or justice have been supposed that the Government,  
through its Commission, had intended to deprive the Indians of their chief means of subsistence."  
 Chartrand's cross-examination (January 26, 2010 at pp 45-50) contains the following with  
respect to Dawson's April 26, 1896 letter. First, a portion of the letter was recited:  
"In reply to your letter of the 18th inst., I beg to say that, during the negotiations with the  
Indians of Rainy River and the Lake of the Woods, it was distinctly held out to them by the  
Commissioners acting for the Government that they would have the right to pursue their  
ordinary avocations of hunting and fishing throughout the tract they were about to surrender  
and a stipulation embodying this understanding appears in the Treaty (No. 3).  
…
In those days it was never contemplated that there would be such a run on their fisheries by the  
white man as has since occurred. Otherwise, the clause in favour of the Indians would have  
been made stronger."  
A. Well, in terms of impact, it would -- what's being discussed here is the scale and intensity of the  
activity and its effect on the Ojibway economy and the intentions of the Commissioners at the time  
regarding what they wanted to have secured to the Aboriginal peoples in the context of Euro-  
Canadian presence and activity.  
Q. And he's suggesting that if there'd been the kind of significant impacts we were seeing in the  
fishery, the Commissioners would have drafted stronger protections than appeared in the document,  
correct?  
A. Absolutely. And the whole point, I think this is very evident even from the 1873 negotiation  
records and other documents, it was fully the intention on the part of the federal government, the  
Treaty Commissioners and certainly of the Ojibway, to remain self-sufficient after the Treaty.  
Q. Right. But Dawson's letter, in terms of helping us understand the reference at page 58, I'm going  
to suggest to you, is actually putting forward the proposition that the language in the written  
document should have been stronger than actually appears?  
A. Well, it should have been stronger if the intensity of fishing activity had been foreseen to have the  
impact that it was having by the 1880s and 1890s.  
 In his correspondence outlining his understanding of the Commissioners' understanding  
and intentions in 1873 with respect to the Harvesting Clause, Dawson never mentioned the  
"taking up" provision in the Harvesting Clause. Instead, he emphasized the content and  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
117  
importance of the Treaty promise/the inducement to the Ojibway that they would "forever" have  
Harvesting Rights.  
Why Did Morris Refer to the Dominion Government in the Harvesting Clause?  
 A major issue in this case is the significance or insignificance of Morris' mention of the  
Dominion when he drafted the Harvesting Clause.  
 An understanding by Morris that Canada was and would be the owner of Treaty 3 lands is  
key to Ontario's argument that Morris was not invoking Canada's s. 91(24) jurisdiction in  
mentioning Canada in the Harvesting Clause.  
 As I see it, there are several questions to answer. Was Morris thinking only of Canada's  
ownership rights? Did he refer to Canada simply because he assumed Canada would be the  
beneficial owner and administrator of Treaty 3 lands? Did he have other more complicated  
reasons for mentioning Canada?  
 In this section, I shall review the evidence relating to Morris' intention in that regard.  
 Counsel for Ontario in effect submitted that Morris' reference to Canada was all about an  
assumption of "ownership." He relied on Chartrand's evidence that the June 16, 1873 Order in  
Council appointing the 1873 Commissioners specifically mentioned the Treaty 3 lands being in  
the Northwest Territories. Chartrand opined the mention of Canada was simply based on the  
assumption that Canada as owner would always have the power to grant patents, issue licenses  
and "take up" or authorize "taking up" of the Treaty 3 lands.  
 Chartrand opined (January 22, 2010 at p. 29) that in drafting the Harvesting Clause,  
Morris assumed Canada owned the lands because the June 16, 1873 Order in Council appointing  
the 1873 Commissioners mentioned the Treaty 3 lands were in the Northwest Territories:  
Q. Now, I also take it from the way you've structured your opinion that you understand the Treaty 3  
Commissioners' powers to negotiate Treaty 3 to arise out of this commission?  
A. That their fundamental authority, yes.  
 Given that assumption, the timing of the appointment and the instrument under which  
they were appointed may be of relevance. Counsel for the Plaintiffs cross-examined Chartrand  
on that assumption and submitted that that June 16, 1873 Order in Council did not specifically  
appoint the Commissioners to negotiate Treaty 3 and Morris knew it. On June 23, 1873, Spragge  
was still apparently of the view that the Treaty 3 negotiations had not yet been placed into the  
hands of Morris, Russell and Provencher. He wrote a memorandum on that day containing the  
following:  
Taking into consideration the whole of the circumstances it is respectfully proposed that the  
management of the negotiations be placed in the hands of the Board of Commissioners recently  
appointed by Order in Council consisting of the Lieutenant Governor, the Chief officer for Indian  
affairs or the Northwest Territories and the Head Officer in Manitoba of the Dominion land granting  
department, with such assistance from Mr. Dawson as it may be in his power to afford and aided  
whenever they may desire his services by Mr. Pither, the Indian agent resident at Fort Frances.  
[Emphasis added.]  
 
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118  
 On January 22, 2010, Chartrand was referred in cross-examination to Ex. 4, Spragge's  
June 23, 1873 memo written six days after the Commission upon which the witness was relying  
had been issued:  
At p. 37:  
Q. And then we also see, subsequent to the appointment of the commission, a separate  
recommendation being made by the most senior bureaucrat in the Indian administration about who  
should carry out those negotiations?  
At p. 39  
Q. So on June 16th, in the order in the Privy Council report found at page 212, we see a separate  
Privy Council decision being made to reopen the Treaty 3 negotiations and setting terms for those  
negotiations, correct?  
A. Yes, that's correct.  
Q. And that Order-in-Council or that report does not identify who is to carry out the negotiations,  
does it?  
A. No, that's correct.  
Q. And it doesn't identify the negotiations as occurring in the Northwest Territories, does it?  
A. No, it doesn't identify that.  
At p. 40:  
Q. Right. And on June 23rd, [Spragge] obviously is of the view that these negotiations are not  
already in their hands. Otherwise, this recommendation would be superfluous, wouldn't it?  
A. The negotiations of terms.  
[Emphasis added.]  
 While Chartrand initially resisted (January 22, 2010 at pp. 44-47), he eventually  
conceded that the Commission on which he was relying, which referred to the Northwest  
Territories, did not specifically appoint the Commissioners to negotiate Treaty 3:  
At pp. 48-49:  
A. …. So I'd like an opportunity to just clarify what we've been discussing about and articulate my  
understanding of this June 23 Spragge memorandum.  
If your questions were aimed at having me confirm that, as opposed to the June 16, 1873,  
commission, which simply laid upon the Board broad general powers to undertake negotiations of  
treaties, that Spragge, on June 23rd, is now, upon receipt of information on terms, recommending that  
the negotiations of a specific treaty be put in the hands of that Board, then I completely agree.  
[Emphasis added.]  
 Counsel for the Plaintiffs submitted that it is not clear that the Commission actually  
appointing the Treaty 3 Commissioners in 1873 mentioned the Northwest Territories.  
 Chartrand also conceded on January 22, 2010 at pp. 60-62 that Spragge's proposal for  
terms of treaties to be negotiated in the Northwest Territories, contained in his memorandum  
dated June 5, 1873 [Ex. 1, Vol. 6, tab 219], was different from his proposal for terms of Treaty 3.  
Q. And if we go to Tab 221, on June 5th, the Cabinet, or the Privy Council, approves the  
recommendations for -- that are outlined in the June 5th, 1873, memorandum. Correct?  
A. Correct.  
Q. So on the same day, the Privy Council has one set of recommendations in front of them for Treaty  
3, and a different set of recommendations for them -- in front of them for treaties to be negotiated in  
the Northwest Territories. And they approve them both, correct?  
A. Yes.  
Q. They don't approve the same terms for those two sets of treaties?  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
119  
A. Correct.  
[Emphasis added.]  
 He conceded that as of June 16, 1873, the Privy Council was approving separate  
instructions for the negotiation of Treaty 3, different from the negotiation of future treaties in the  
Northwest Territories.  
 In cross-examination, Chartrand agreed (January 22, 2010 at pp. 56-57) that Canada did  
not view itself as having jurisdiction to negotiate treaties only in the Northwest Territories. It had  
jurisdiction to do so in all of Canada, including Ontario:  
Q. You are not trying to suggest that Canada lost jurisdiction with respect to Indian Affairs in the  
lands subject to the Dispute?  
A. No.  
…
Q. Well, you're not suggesting that Canada took the view after the Boundary Dispute that it no  
longer had responsibility for dealing with matters related to Aboriginal harvesting off-reserve after  
the Treaty, are you? Just because of the Boundary Dispute?  
A. If we're limiting ourselves to the final determination in 1884, then the answer is no.  
[Emphasis added.]  
 Chartrand also agreed that the view of the federal government in 1873 was that it could  
enter into treaties because of its jurisdiction over Indians and lands reserved for the Indians. The  
Commissioners (particularly given that they were answerable to the Superintendent of Indian  
Affairs, in respect of the federal government's duties vis-à-vis Indians) understood that the  
Dominion Government would have the obligation after the Treaty was signed to enforce the  
Treaty. References to the Dominion Government could have related to the Commissioners'  
understanding that they were representing the Dominion Government in respect of Indians and  
lands reserved for the Indians.  
 Counsel for the Plaintiffs submitted there are more complicated reasons for the mention  
of the Dominion in the Harvesting Clause than a simple assumption of ownership. Morris was  
not simply referring to Canada's ownership rights but also to its s. 91(24) obligations. Morris'  
knowledge of the Boundary Dispute and its implications affected his drafting of the Harvesting  
Clause. Morris knew the ownership of the lands was in dispute and sought wording that would  
cover both eventualities: that Canada would be found to own the Northwest Territories or that  
Ontario would be. He submitted that Morris deliberately referred to the Dominion in the  
Harvesting Clause bearing the Boundary Dispute in mind. It was no mistake. When he  
mentioned "Canada" could limit Treaty Harvesting Rights by "taking up" or authorizing "taking  
up," Morris evidenced that he intended that only Canada could limit Treaty Harvesting Rights.  
Morris, a trained Constitutional lawyer and ex-judge, understood what he was doing in  
mentioning Canada. He was aware of the historical antecedents to s. 91(24), including the  
management of Aboriginal matters from the top before 1867 by the Imperial Government and  
after 1867 by the Canadian government. He was cognizant of the reasons why s. 91(24)  
jurisdiction had been vested in the federal government, its obligations to Indians and the  
Constitutional relationship between federal powers and obligations and provincial powers and  
obligations. At the time the Treaty was being negotiated, he was aware that the four original  
provinces had agreed less than a decade earlier that their s. 109 powers would be "subject to any  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
120  
Interest other than that of the province[s] in the same." He understood that Treaty Harvesting  
Rights were an "interest other than that of the province in the same." He was aware that a loss of  
the ongoing Boundary Dispute between Canada and Ontario could have negative implications for  
Canada's wards, the Ojibway, especially if their Treaty Harvesting Rights were not expressly  
protected by the wording of the Treaty.  
 Counsel for the Plaintiffs submitted that in 1873, although the Commissioners anticipated  
compatibility between Aboriginal harvesting and anticipated development, Morris knew if  
Canada won the Boundary Dispute, it would authorize all land uses in the Treaty 3 area. In the  
event proposed land uses threatened to interfere with Treaty Harvesting Rights, he expected  
federal departments to work together to ensure that Canada's security interests would not be  
undermined because unhappy Indians perceived that Treaty promises were not being kept. He  
expected Canada to protect the Indians and in turn to protect its own interests. He contemplated  
consultation and cooperation among government departments. The Commissioners did not  
expect management of Harvesting Rights to be onerous by reason of the expected compatibility  
between anticipated Euro-Canadian development and Ojibway harvesting.  
 On the other hand, if Canada lost the Boundary Dispute, while he understood that Ontario  
could not turn "swamp and muskeg" into fertile agricultural lands, he also understood that he  
needed to draft the Treaty in such a way as to protect Ojibway Harvesting Rights and prevent  
them from being compromised.  
The Meaning of "Taking Up"  
 When drafting the Harvesting Clause, Morris deliberately did not use proprietary  
language or refer to the Dominion as owner.  
 Had Morris simply intended the beneficial owner of the land (whether it turned out to be  
Canada or Ontario) to have the right to unilaterally extinguish Treaty Harvesting Rights by  
selling or leasing its land, he could have used language similar to that contained in the precedent  
provided to him, the 1850 Robinson Treaties, as follows:  
… to allow the said chiefs and their tribes the full and free privilege to hunt over the territory now  
ceded by them, and to fish in the waters thereof as they have heretofore been in the habit of doing,  
saving and excepting only such portions of the said territory as may from time to time be sold or  
leased to individuals, or companies of individuals, and occupied by them with the consent of the  
Provincial Government.  
Robinson Superior Treaty, Morris text, Ex. 9, App., p. 303  
 He chose not to use such language. He knew if Canada lost the Boundary Dispute it  
would not be the owner but it would have s. 91(24) rights. He used new and different "taking up"  
wording to specify that Canada, the only level of government with jurisdiction to make treaties  
and extinguish treaty rights, would have to authorize any transfer of lands that, to use the  
language of the Supreme Court of Canada in Mikisew, moved lands from the inventory of lands  
protected by Treaty Harvesting Rights to the inventory of lands not so protected.  
 
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
121  
 Counsel for the Plaintiffs submitted that when Morris specified in the Harvesting Clause  
that only Canada could "take up" lands, he intended "taking up by Canada" in the Harvesting  
Clause to have roughly the same meaning the Supreme Court of Canada has now given it. Land  
would be considered "taken up by Canada," not simply when occupied or used per se, but when  
Canada authorized it to be put to a use visibly incompatible with Harvesting Rights.  
 Put differently, Morris intended to make it clear that under s. 91(24) and the Treaty,  
Canada, the guardian of Indians, would manage the process to be followed in limiting Treaty  
Harvesting Rights so it could ensure they would be respected.  
 If Canada won the Boundary Dispute, it already had in place an Indian Management  
Board that included highly placed representatives from Crown Lands and Indian Affairs whom  
he expected would consult, cooperate, coordinate and manage any conflicts between Euro-  
Canadians and the Indians in the Indians' and the federal interest. If Ontario won the Boundary  
Dispute, Morris had stipulated the process that must be applied before otherwise unlimited  
Harvesting Rights could be removed. He had made it clear in the Treaty that Canada was  
retaining the s. 91(24) jurisdiction necessary to manage and protect Harvesting Rights if it  
became necessary to do so.  
 When he drafted Treaty 3, Morris had in his file a document [Ex. 31], likely prepared in  
1871 before the negotiation of Treaty 1. Chartrand's cross-examination on January 21, 2010  
contains the following at p. 22:  
Q. Now, if we look at the sentence above the one we've just been talking about, we see the words, in  
the left-hand column:  
"Treaty cannot be changed."  
And then next to that, we see the words:  
"No provincial legislature will have the right to change that treaty."  
A. Yes.  
[Emphasis added.]  
 Counsel for the Plaintiffs submitted that the presence of that document in his file is  
indicative that Morris did consider ways to ensure that local governments/provinces would not  
be able to interfere with Treaty Rights.  
 Counsel for the Plaintiffs submitted that Ex. 32, the draft Treaty prepared in 1873, also  
supports the conclusion that Morris specifically turned his mind to the wording and decided that  
"taking up by the government of the Dominion or by subjects authorized by the said  
government" language and should be included. Although he made other changes, he left intact  
the reference to the Dominion of Canada in the Harvesting Clause.  
Evidence Relevant to the Interpretation of the Understanding of the Parties in 1873 with  
regard to the Identity of the Treaty Parties  
 A finding by this Court that the Ojibway understood they were dealing with the Queen or  
a generic Queen's government, not the Government of Canada, is key to Ontario's argument that  
as an emanation of the Crown, it can access the Harvesting Clause in the Treaty and limit Treaty  
Harvesting Rights without authorization from Canada.  
 
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
122  
 The ethno-historians disagreed about whether Morris decided during the negotiations to  
explain that he was not literally representing the Queen/not literally taking his instructions from  
her, but if so, why, and then how and whether he was able to make the Ojibway understand that  
he was actually deriving his authority from the Government of Canada and only from the  
Government of Canada, and then, as to whether the Ojibway understood they would be relying  
on Canada and only Canada to implement and enforce the Treaty promises.  
 Counsel for Ontario submitted that from the mention of Her Majesty the Queen in the  
Treaty text, the fact that the Treaty Commissioners at least initially represented that they were  
acting on behalf of the Queen, and the preponderance of references to the Queen during the  
negotiations, the Ojibway understood that the Queen was their Treaty partner. Chartrand said,  
based in part of the number of references to the Queen in the various negotiations, the Ojibway  
would have understood they were dealing with the Queen. (January 14, 2010 at pp. 110-111.) He  
opined the Ojibway were ultimately relying on the Queen to ensure the Treaty promises were  
fulfilled.  
 He submitted the Queen's Government in Canada was/is not limited to the Government of  
Canada but also includes the governments of the provinces, including Ontario. The Ojibway did  
not understand they were treating with the Government of Canada to the exclusion of other  
Queen's governments in Canada. As an emanation of the Crown, Ontario should be considered a  
party to the Treaty and be allowed to "take up" lands under the Treaty. To allow Ontario to do so  
would not violate the Honour of the Crown or the spirit of the Treaty.  
 The experts all agreed that when Morris referred to the Queen and the Queen's  
government during the negotiations, he did not intend to refer to the Queen in her personal  
capacity or any Queen's government other than the Government of Canada. His references to the  
Queen during the negotiations were to the Queen, acting on the advice of a Council (or cabinet)  
at Ottawa. When he referred to the Queen's Government, he was only referring to Canada. He  
knew Canada is a federal state with separate executives accountable to separate legislatures [the  
federal (or Dominion) government, accountable to the federal Parliament, the provincial  
governments accountable to their respective local legislatures.] He understood that each level of  
government has its own distinct powers and duties, its own treasury, its own property and  
answers to a distinct electorate. Morris and the other Commissioners appreciated that the  
Government of the Dominion of Canada was separate and distinct from the Government of  
Ontario and the Government of the United Kingdom.  
 During an examination under oath on December 1, 2005 read into the record at trial,  
Chartrand agreed that the "Dominion Government" in the Harvesting Clause had a clear and  
unambiguous meaning to the Commissioners. To them, "the Queen's Government" was the  
Dominion Government.  
 Chartrand's evidence on January 21, 2010 contains the following at p. 125:  
Q. Now, I'm going to suggest to you that Morris had no expectation that he wanted the Ojibway  
heading off to the Queen in England to complain about the service, did he?  
A. No, I don't think that Morris had that in mind.  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
123  
Q. Morris really wants them to come to the Queen's government, correct?  
A. Yes.  
Q. And we've established that when Morris is talking about the Queen's government, he's talking  
about the Dominion Government, correct?  
A. There's no question that this is what Morris understands and has in mind.  
Q. And he does not suggest to that at any time that, look, you might have to go to other governments,  
correct?  
A. Correct.  
 Chartrand conceded in cross-examination on January 19, 2010 that the Treaty  
Commissioners understood they had been appointed by the federal government and were taking  
direction from the Department of Indian Affairs. They understood that under the Constitution,  
the Dominion Government had powers and duties distinct from the provincial governments. The  
Dominion Government was responsible for making treaties, for the general welfare of the  
Indians and for paying the costs of fulfilling the Treaty promises out of the Dominion treasury.  
 Saywell said (April 6, 2009, p. 52) that while the Commissioners appreciated Canada had  
an undivided Crown, they understood it had divided governments. It was important for the  
political players to know what governments had the power to deal with which issues. They knew  
that particular governments were responsible to fulfill and pay for particular commitments. It  
was very important to identify the government responsible for honouring each commitment.  
 In 1867 the Commissioners knew Canada had at least three levels of government  
(Imperial, federal and provincial), two of which were local governments. Under the BNA Act,  
while Morris knew that executive power was vested in the Queen, he knew that as a practical  
matter it was in the Governor General, advised by the Committee of the Privy Council, that  
exercised s. 91(24) powers. When Morris used the phrase "Dominion Government" or the  
"Government of the Dominion of Canada," he was making a clear and unambiguous reference to  
the federal government and not to any provincial government. (Saywell, April 6, 2009 at pp.  
250-254; Chartrand read-ins, Ex. 33, tab 2.)  
 Counsel for the Plaintiffs challenged Chartrand's approach of counting the number of  
Morris' references to the Queen, and looking at the "preponderance" of references. He submitted  
it is necessary to look at the timing of Morris' references to the Queen. While Morris initially  
believed tying his authority to the Queen would assist Canada (given the positive perception the  
Ojibway had of the Queen flowing out of the Imperial policy of conciliation since the  
Proclamation of 1763), part-way through the negotiations, he realized that by doing so he was  
weakening Canada's bargaining position. He realized the Ojibway believed the Queen's power  
and charitableness were unlimited. If she had bestowed all her powers on him, he could give  
them whatever they wanted. Therefore, he had to make it clear the Commissioners were  
representing the Canadian government, a Government that did not have all the power and  
authority of the Queen.  
 Counsel for the Plaintiffs submitted that the author of the Manitoba Free Press report  
(Ex. 67/67A, "The Indian Treaty," originally published October 18, 1873) clearly perceived at  
the time that Morris did change tack during the negotiations, did distance himself from the  
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124  
Queen and did discard the antiquated formula of tying his authority to the Queen. It contained  
the following:  
At the opening of the negotiations the Governor had deemed it expedient to follow in the path of his  
predecessors and adopt the traditionary story of the Great Mother's special and anxious interest in her  
red children and of her having sent her representative etc. etc. This figure of speech seems to be-  
though heaven alone knows why-the usual one adopted for discussing their affairs with the Indian  
tribes; and the polite though crafty savage of the Rainy Lake district not only received this  
intelligence with demonstrations of satisfaction, but made a mental note of information for use in due  
season. It was not long before he had occasion to use it for when the demands of the Indians had been  
refused by the Governor on the ground that the offer he had first made them was within his  
instructions, but that all subsequent demands were altogether beyond his authority, the urbane  
denizen of the woods pointed out the apparent incongruity in the two statements made by the white  
chief; the one that he was there representing the Great Mother, and the other that he had the power to  
deal with the Indians as he himself thought proper. This had puzzled them a great deal-so they said-  
and they, as recommended by the Governor, had held a further council amongst themselves on the  
subject of the treaty. As the Governor has said that his power of giving was limited by instructions,  
perhaps he would now tell them to what extent he was enabled to meet their views expressed in their  
written demands, to which they still begged leave to adhere. This was not badly put by the untutored  
mind-if it was untutored on this occasion-for on the one hand the treaty was likely to cost enough  
without going to the utmost extent of delegated powers, while on the other there was just the danger  
that by remaining too inflexible the Indians might go off in a huff. With considerable tact Governor  
Morris evaded the little anamolous theorem which the Indians had presented for his explanation, and  
probably considering that the Great Mother was a source of strength to the Indian, but of weakness to  
the Commissioners, wisely discarded this antiquated formula…  
[Emphasis added.]  
 Chartrand conceded that the Free Press reporter perceived on October 2 that Morris was  
distancing himself from the Queen and that Morris had concluded that tying his authority to the  
Queen was working to Canada's disadvantage because the Ojibway perceived the Queen's power  
to be limitless. Morris decided to explain that he represented the Council that Governed a Great  
Dominion/the Queen's Government at Ottawa because the Ojibway had specifically challenged  
Morris' authority.  
 Lovisek opined the Ojibway understood what Morris was telling them. On October 2,  
after Morris (1) rejected the 1869 demands; (2) was questioned about the extent of his power; (3)  
said that he represented the Queen's Government; (4) reminded the Ojibway that there was  
another "great Council that governed a Great Dominion" that held its Councils at Ottawa the  
same as they held theirs – Morris had been able to successfully explain the concept of the  
Dominion Government in a manner that the Ojibway understood. The Ojibway understood they  
were not dealing literally with the Queen.  
 Lovisek opined on November 23, 2009 that when Morris referred to "the Council that  
governs a Great Dominion," "the Government in Ottawa," a "Council similar to their own," he  
was clarifying that the Government in Ottawa was providing his authority and would be  
responsible for implementing and enforcing the Treaty promises. In drawing on Ojibway  
experience and understanding of Council meetings and in comparing their own Council to the  
Council that governed the Dominion, Morris was able to make the Ojibway understand that he  
was acting on behalf of the Government at Ottawa. The Ojibway did understand by the time they  
signed the Treaty that the Commissioners' authority came from a Council at Ottawa located on  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
125  
this side of the Great Salt Lake. Morris' explanation could be translated into Ojibwe. The  
Government of Canada/the Queen's Government/the Government at Ottawa could be translated  
as the Council at Ottawa. They understood they were dealing with the Council at Ottawa.  
 On October 2, 1873, they acknowledged that he had advised them he did not have all the  
powers of the Queen:  
We understood yesterday that the Queen had given you the power to act upon, that you could do what  
you pleased, and that the riches of the Queen she had filled your head and body with, and you had  
only to throw round about; but it seems it is not so, but that you have only half the power that she has,  
and that she has only half filled your head.  
 On October 2, 1873, the Ojibway understood that in deciding whether to go forward with  
the Treaty, they would need to satisfy themselves that the Queen's Government at Ottawa, the  
party with whom they were dealing, not only had the power to authorize the Treaty terms they  
were seeking, but also had the power to implement and enforce them.  
 Lovisek gave evidence that by October 3, they had satisfied themselves that the  
Government at Ottawa/Canada/the Government/Council at Ottawa/the Queen's Government/the  
Council that governs a Great Dominion was the source of the Commissioners' authority and that  
it would, to use Morris' words, "take their hand and never let it go." They had satisfied  
themselves that Canada had adequate power. They were content to rely on Canada. They  
recognized and accepted that Canada was authorizing the Commissioners to agree to the Treaty  
terms and Canada would be responsible for fulfilling the promises.  
 Lovisek also said on November 23, 2009 that some Ojibway references to the Queen  
were symbolic, some not. It is important to scrutinize each reference in context. They were often  
symbolic, referring to kinship by virtue of a common connection to the Great Mother.  
 Lovisek's report (Ex. 28) contains the following at pp. 92-94:  
There are multiple references in the Shorthand Reporter's account of the 1873 Treaty negotiations  
which invoke the name of the Queen. The Queen was not used in the negotiations to represent a  
distinct level of government as much as it was used by both parties as a symbol. The use of words  
like "Queen" and its equivalent "Mother" were used symbolically by both parties to represent kinship  
and show respect. In The Manitoban, a reference is made to the Great Mother the Queen, and that the  
Commissioners and the Saulteaux were all "children of the same Great Spirit, and are subject to the  
same Queen…."  
(Footnotes omitted.)  
 After Morris made the statements about the Council that governs a Great Dominion and  
compared himself to a brave who carries a message, the Ojibway repeatedly referred to the  
Government and to the Treaty Commissioners personally. Apart from one exception, which may  
have been an attempt at humour, "I think it would disgrace the Queen, my Mother, to wear her  
image on so base a metal as this," they did not again refer to the Queen.  
 Chartrand agreed in cross-examination on January 26, 2010 at pp 67-68 that when Morris  
referred to the Council that Governs a Great Dominion, he was beginning to correct the notion  
that he was taking his instructions from the Queen.  
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126  
 When Morris said, "I did not say yesterday that the Queen had given me all power. What  
I told you was that I was sent here to represent the Queen's Government ... when you send one of  
your braves to deliver a message, he represents you; that is how I stand with the Queen's  
government," he was tying his authority back to the Queen's Government. Chartrand initially  
suggested that Morris' references to the Council at Ottawa were related to treaty implementation,  
not the source of the Commissioners' authority. Later Chartrand conceded in cross-examination  
that some of the matters to which Morris referred on October 3 were in relation not just to  
implementation but to the source of his authority. In other words, he conceded Morris did refer to  
the Queen's Government at Ottawa not only as the power that would be implementing some of  
the terms of the Treaty, but also as the power that was providing the Commissioners' power and  
authority.  
 At trial by the end of his cross-examination, Chartrand had conceded that the Ojibway  
had "an underlying cognition" that they were dealing with sovereigns through various  
representatives in Canada (January 25, 2010.)  
 Chartrand conceded that the most likely term used to translate the English word  
"Government" into Ojibwe was the Ojibwe word for "Council."  
 Von Gernet gave the following evidence on December 10, 2009 in cross-examination:  
Q. And I suggest to you that the whole reason for him bringing up the discussion of Council is to  
make it clear that that is a body that has a role in making the rules for a treaty, and I suggest,  
governing the great Dominion?  
A. Well, he says that: "-- there is another great council that governs a great Dominion, and they hold  
their councils the same as you hold yours."  
And that he himself is a servant of the Queen and that he can't do his own will, he must do hers. So  
again, I think it's a combination of both. He's trying to impress upon the Ojibway that they -- that they  
should not consider him to have the power to give all that they want, that he is -- his power is limited  
to the Queen and her Council. Now, the analogy is not perfect. Because while the Ojibway have the  
equivalent of the Council, they do not have the equivalent of the Queen. …  
Q. …I would suggest that the fact that Morris goes out of his way to draw this analogy between the  
government and the council suggests that he was intending to impress upon the Ojibway the idea that  
there was a government that governed the great Dominion; isn't that fair?  
A. I think that's what he's trying to do. He's trying to show that there is a -- I mean, as you say, he  
could have limited it to just simply saying, you know, the Queen ... is the one that's limited my  
powers. But, you know, a better analogy is to say, well, it's not just the Queen but the Queen's  
councillors, because a council is something that the Ojibway can identify with, much more readily in  
terms of their own day-to-day practice and in their own political system.  
[Emphasis added.]  
 On December 10, 2009, Von Gernet said that by the end of the negotiations the Ojibway  
understood that the Council to which Morris referred was in Ottawa, at pp. 154-155:  
Q. And I suggest to you at this point in time the Ojibway have, on a number of occasions, been made  
aware of the fact that that's a government in Ottawa, correct?  
A. Yes.  
Q. And that that's the government that's come to treat with them, correct?  
A. Well, their understanding would have been that the -- they're treating with the Queen through her  
representatives --  
…
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
127  
Q. But in any event, their understanding is that …regardless of where these individuals actually come  
from, [they] are being sent by the government in Ottawa, correct -- as a practical matter they  
understand that?  
A. I think they understand that the Queen's councillors that the governor is alluding to are in Ottawa.  
[Emphasis added.]  
 Although he maintained on December 3, 2010 that the Ojibway believed they were  
treating with the Queen through her representatives, Von Gernet conceded that by the end of the  
negotiations, the Ojibway understood that the "Council" to which Morris referred was at Ottawa,  
that the Queen's Councillors were in Ottawa and that they would be dealing "on an  
administrative level with the Government, not in England but in Ottawa." [Von Gernet's cross-  
examination of December 3, 2010.] He noted that Morris clarified any uncertainty that may have  
existed before the 1873 negotiations:  
A: … They would have understood that there was some kind of Queen's council in Ottawa which  
effectively was a government that was homologous to one of their own councils …the homology  
between the two, was only clarified by Morris in 1873. Prior to that I'm not certain how much they  
really understood. …  
 From that answer I concluded that Von Gernet agreed with Lovisek that after Morris  
referred to the Council that Governs a Great Dominion, the Ojibway understood the Queen's  
government they would be dealing with was the Government at Ottawa.  
 Chartrand did not initially agree that the Ojibway were relying on the Queen's  
Government at Ottawa.  
 Counsel for the Plaintiffs read the following passage from the discovery of Chartrand into  
the trial record:  
And so the question as to the identity of the government … I agree that they know there is a  
government operative in Canada, for example, the government that is building the Dawson Road, as  
it is variously called, and they make an allusion, at least once, anyway, in the record of oral  
negotiations taken by the shorthand reporter to, again, a request for " the government," stated  
generically as such, to provide wood to assist in building houses.  
(Plaintiffs' Read-ins, Ex. 33, Tab 6, May 8, 2009, p. 364, Question 1337)  
 On October 1, Dawson referring to early treaty negotiations, said, "We made offers as  
instructed by the Government in good faith." Chartrand conceded in cross-examination (January  
21, 2010 at p 77) that it is very possible that at the early meetings, Dawson explained the nature  
of his authority to oversee construction and may have made reference to the Government of  
Canada/Council at Ottawa.  
 Chartrand's report (Ex. 60) contains the following at pp. 127-9:  
Between 1868 and 1870, Simon Dawson was employed by the Dominion Government, as a civil  
engineer in the Department of Public Works, in charge of overseeing construction of the section of  
the immigrant travel route from Fort William to the Northwest Angle of the Lake of the Woods. The  
Ojibway interacted with him at council meetings in which he explained the nature and progress of the  
construction work, sought to obtain their consent for the work to progress and inquired as to their  
terms for compensation in regards to the construction of the route.  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
128  
Detailed verbatim accounts describing how Dawson identified himself to the Ojibway, his source of  
authority for overseeing construction of the route, and the identity of the Crown, are lacking.  
However, as documented in an address by a hereditary Chief to Wemyss Simpson at Fort Frances in  
June 1870, the Ojibway had developed an understanding that the construction of the route proceeded  
under authority and direction of a "government". In presenting terms for agreeing to a permanent  
right of way agreement, the Chief indicated that he understood that this "government" would require  
some lands along the route to service transport and immigrant travellers. The immigrant travellers  
were identified by this Chief as "the Queen's subjects." This understanding was certainly derived  
from council meetings and discussions with Simon Dawson.  
Robert Pither was appointed as Indian Agent at Fort Frances in early 1870 and began assuming his  
duties by early spring of that year. …  
 Pither, sent by the Canadian Government to reside in the Treaty 3 area to foster friendly  
relations between the Ojibway and the Canadian Government and create a favorable impression  
of it, had lived among them since January 1870. He had been officially appointed as Indian  
Agent since 1871. Chartrand said on discovery that for the most part the Ojibway viewed the  
Indian Agents to be representatives of the Government. They knew that Pither and Provencher  
were employed by the same government. As mentioned earlier, McKay had acted as a cultural  
intermediary since 1870 and was actively involved before and during the 1873 negotiations. He  
was aware of the existence of multiple governments in Canada and had been charged with  
explaining concepts, Treaty implications and so forth to the Ojibway.  
 Since 1868, the Ojibway had been dealing regularly with Dawson, in Council and  
otherwise, whom they knew was charged with building the immigrant travel route for the  
government at Ottawa.  
 The Ojibway had seen Canadian troops crossing their territory in 1870 on the way to the  
Red River.  
 They understood that the HBC Territories had been annexed to Canada in July 1870.  
 As mentioned later in the section of these Reasons on Chartrand's credibility, on an  
examination dated December 2, 2005 Chartrand said:  
Q: And so Mr. Stephenson asked you this question:  
Q: All right. Does it remain your view that the conception of the … Aboriginals negotiating for  
and ultimately signing Treaty 3, that they were dealing with the Crown? …  
…
A: I do not dispute any contention. In fact, there is very good evidence in the documentary record  
to the effect that the Ojibway understood that they were dealing with individuals who  
belonged to a central government that was established at a place called Ottawa. On the other  
hand, again, the totality of the explanation given to the Ojibway indicated that the government  
had as its ultimate head and source of authority the Queen."  
[Emphasis added.]  
 Chartrand's report, Ex. 60, contains the following at p. ix:  
The sum of the available evidence regarding the understanding by Aboriginal signatories to Treaty 3  
of the identity of the Crown signatory to that Treaty, suggests that the Ojibway at the time of  
negotiations understood that the provisions of the Treaty would be put into effect by a government in  
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
129  
Canada. Statements attributed to Ojibway spokespersons identify the Dominion government  
generically as "the government."  
 In his "corrections" issued after Spies J. referred to that answer in her reasons dated May  
23, 2006 and in his cross-examination at trial, Chartrand resiled from those answers.  
 Despite his earlier answer on December 2, 2005 that the Ojibway understood they were  
dealing with individuals who belonged to a central government that was established at a place  
called Ottawa, Chartrand refused in cross-examination on January 26, 2010 to concede the  
Ojibway knew the Treaty was with the Government at Ottawa, at pp 106-114:  
Q. Okay. And so now it is your evidence that we cannot, in fact, put all of these pieces together to  
say that they did understand that they were dealing with a government …-- at Ottawa?  
A. That the treaty was with that government, no. That's an opinion --  
Q. That's not -- okay. That's not the question. Because the question is who were they dealing with.  
That's the answer you gave. You made a very clear distinction in your answer between the treaty  
being with the Queen but them knowing they were dealing with officials from the Government of  
Canada? …  
A. Because that account, in my answer, suggested something that, in 2005, in not quite the right  
words I was trying to express, that I could express more clearly through the benefit of subsequent  
writing, that there is no evidence indicating that the Ojibway understood that they were dealing with a  
federal government in the Euro-Canadian sense of federal government.  
…
Q. My question, though, is, are you saying that the Ojibway could not understand the concept that  
they were dealing with a government in Ottawa, or a government in Canada, unless they also  
understood that there were provincial governments?  
A. No. What I'm indicating is that to the best of my knowledge, their concept of this government  
was a generic entity and that what we don't have in the historical records is … any clear indication at  
all that the Ojibway understood that the government at Ottawa might be distinct from any other Euro-  
Canadian government bodies.  
In fact, my opinion since then has evolved somewhat to the extent that it is not at all clear to me that  
the Ojibway understood that there were distinct Euro-Canadian government bodies operative in  
Canada.  
Q. But the thing is, my questions haven't been asked to ask if you can agree that they understood  
there were distinct governments. What I'm getting at is is they understood that there was a  
government. They may have thought it was a unitary government, but they understood there was a  
government at Ottawa that they were dealing with?  
A. They understood that this government at Ottawa, as Alexander Morris referred to on four  
occasions, would have a role to play in the administration of treaty promises that Alexander Morris  
was making as coming from the Queen, and having the power to offer those promises under authority  
of the Queen.  
Q. And I think you'll agree with me, then, that they certainly were not led to believe that any other  
government would have a role in administering the promises?  
A. I believe that I addressed that question in 2005, although I'd be hard-pressed to find the page. In  
my opinion, that question is not even an ethnohistorical question because we have no evidence that  
the issue was ever raised.  
…
Q. So if somebody were to say, look, they were -- they understood that, you know, the government  
of Ontario could interfere with their treaty rights, the answer would be, no one even explained the  
government of Ontario to them?  
A. Which is the basis on which I say that the issue is not even an ethnohistorical issue as best I can  
determine. It was simply not addressed.  
…
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
130  
Q. … I'm actually putting I think what's a simple question to you: Ethnohistorically, there is no  
evidence whatsoever that the Ojibway ever agreed that the government of Ontario could interfere  
with their rights?  
A. No, there's no specific evidence because the issue was simply not raised.  
Q. There's no evidence, period. Is there?  
A. There's no evidence that the issue was raised.  
I'm sorry if I'm running around in circles. But as an ethnohistorian, that's an important matter. If the  
Ojibway had no concept of multiple governments operative in Canada and no one had bothered to  
explain that to them, then we're dealing with a subject matter that the Ojibway could not have raised  
at the time.  
Q. And could not have objected to at the time?  
A. Or agreed to or done anything because there was no basis for the Ojibway to be in a position to  
deal with the issue. And so, you know, would it have mattered to them is a question that is not an  
ethnohistorical question at the time because there was no basis for the Ojibway, in my opinion, to be  
in a position to understand to attach a significance to that.  
[Emphasis added.]  
 After he had again virtually conceded that the Ojibway knew they were dealing with a  
Queen's government in Canada, he opined that the issue of which government they were dealing  
with was of secondary importance to the Ojibway. Chartrand's report (Ex. 60) contains the  
following at pp. 133-4:  
The fact that none of the treaty negotiation records allude to Ojibway concerns regarding this matter,  
suggests that the identity of the party or parties responsible for administering provisions, was a matter  
of secondary importance to the Ojibway relative to having secure knowledge that they had negotiated  
an agreement with "the Queen."  
 At another point during his evidence, Chartrand said on January 26, 2010, p. 82, what the  
Ojibway understood about the Queen's government is at the core of the issue. Counsel for  
Ontario conceded in argument that the Ojibway understood that they were dealing with the  
Queen's government. They recognized there was a government operating in Canada.  
 Chartrand gave evidence that Morris presented the Queen's Government as a unitary  
body. During the Treaty negotiations neither he nor any of the other Commissioners suggested to  
the Ojibway that any Government other than the Government at Ottawa could or would have any  
role in fulfilling or administering the Treaty promises. Morris never explained what he clearly  
knew, that there was an ongoing dispute between Canada and Ontario over ownership of a large  
portion of the Treaty 3 lands where Harvesting Rights were being promised. When he promised  
that the Ear of the Queen's Government would always be open, he did not explain that Canada  
might have trouble ensuring that all of the Queen's servants would do their duty in a proper  
manner. He did not explain that he could direct some but not all of the Queen's servants."  
Instead, he suggested that the Queen's Government would address their concerns as they arose.  
Chartrand's evidence of January 19, 2010:  
Q: So he never says, … it may turn out that some of these lands belong to this other group -- is under  
the control of this other group of Queen's servants, the government of Ontario?  
A: Correct.  
Q: … when you come and talk to the Queen's government, … we won't be able to help you out …?  
A: No. There are no allusions to dual or distinct governments. In fact, there are no allusions to  
Ontario specifically --  
…
Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests  
131  
Q: Right. Morris here gives them no indication that the Queen's -- whether it's the Queen's  
government or the Queen in Right of Canada or whatever we ultimately want to label that thing in  
Ottawa, that they won't be able to deal with the full scope of the Ojibway's problems, he never  
explains that to them, does he?  
A: His explanation, and it's the one consistent feature of the three different accounts, is that there's a  
unitary body.  
The Interests of Ontario  
 As mentioned earlier, by the time the Treaty was negotiated, the Commissioners knew of  
the Boundary Dispute between Ontario and Canada and that it would likely have to be litigated.  
 Ontario postponed negotiations with respect to the boundary until after a treaty was  
concluded with the Indians.  
 It did not participate in any of the Treaty 3 negotiations in 1871, 1872 or 1873.  
9. CREDIBILITY OF THE EXPERTS  
 Obviously, my acceptance or rejection of any given piece of evidence relevant to any  
issue depended on a comparison of that evidence with other evidence relevant to that issue,  
viewed in the overall context of the evidence as a whole. My reasons for accepting or rejecting  
specific portions of the evidence are to be found elsewhere in these Reasons.  
 In this section, I am setting out my more general observations and conclusions with  
respect to the overall credibility of the various experts.  
The Ethno-Historical Witnesses (Lovisek, Chartrand and Von Gernet)  
Lovisek  
 Early in the trial there were times when I found Lovisek's evidence to be difficult to  
follow. I am now confident that my initial difficulties stemmed principally from my own  
schooling in European concepts related to ownership of land and my reflexive assumptions based  
on that knowledge, which led to my inability to immediately appreciate that counsel for Ontario  
had formulated its case and focused its questions in its cross-examination of Lovisek based on  
familiar Euro-Canadian land concepts, especially relating to "ownership." Lovisek was trying to  
respond to counsel's questions based on her extensive knowledge of vastly different Ojibway  
concepts that did not directly relate to ownership or land per se.  
 Focusing on Euro-Canadian concepts about land ownership, counsel for Ontario in effect  
asked Lovisek to assume that the Harvesting Clause was all about Euro-Canadian concepts of  
landowner's rights, including the assumption that the benefits of land ownership include the  
exclusive right to use the resources on that land to the fullest. Lovisek opined (and Chartrand  
agreed) that Euro-Canadian concepts of individual land ownership and of the purchase and sale  
of land were foreign to the Treaty 3 Ojibway.  
       
Part 9. Credibility of the Experts  
132  
 Focusing on Euro-Canadian concepts of ownership and not on Ojibway concepts of  
exclusive control before the Treaty and sharing of use after, counsel for Ontario assumed that  
after the Treaty was signed, the Ojibway would have objected to any and all use by Euro-  
Canadians of Treaty 3 lands. Counsel for Ontario made much of the Ojibway failure to object to  
every Euro-Canadian use and of Canada's failure to involve itself in every authorization of land  
use within Ontario by Ontario.  
 Lovisek, focusing on Ojibway concepts of resource sharing, said she would not have  
expected the Ojibway to have objected to every post-Treaty Euro-Canadian land use. The uses  
mutually anticipated by the Commissioners and Ojibway in the Treaty 3 area were expected to  
be compatible. Euro-Canadian uses were not expected to interfere significantly with Ojibway  
Harvesting Rights. The Ojibway understood that after the Treaty was signed, they would no  
longer have exclusive use of their lands and resources. The Ojibway agreed to share as long as  
such sharing did not significantly interfere with their traditional way of making a living. In  
assessing the impact of Euro-Canadian land on their harvesting, they would consider the benefits  
they were obtaining from the Euro-Canadian activity as well as the detriments. (Lovisek, tab 7,  
pp 77-78.)  
 Given the disconnect between the underlying focus and assumptions of counsel for  
Ontario and of Lovisek's (and as I later learned, of Chartrand's) concept of Ojibway  
understanding of what was happening and what was being promised, I realized that Lovisek's  
difficulty in answering questions posed in cross-examination was understandable. She was being  
asked to fit square pegs into round holes. Once I was able to set aside my own reflexive reactions  
based on Euro-Canadian concepts of land ownership and to focus instead on Ojibway concepts,  
her answers were comprehensible and crucial to understanding the transaction from the Ojibway  
perspective. To them, the Treaty was about continuing their way of life. Their focus was on  
resources to collectively harvest, not on Euro-Canadian preoccupations.  
 In argument on April 27, 2010, counsel for Ontario criticized Lovisek's evidence on  
several bases. He submitted that her evidence that the Ojibway had no European-type concepts  
of alienation of individually owned land was inconsistent with her evidence that the Ojibway  
"did understand that some of the land along the right of way was being transferred to the  
Crown." I note that she qualified that statement as follows: not as a transfer so much as an  
allowance for occupancy. I also note that Chartrand, who was called to give evidence by Ontario,  
conceded the Ojibway had no European-type concepts of purchase and sale of land by  
individuals. He commented that when they referred to sale of land during the Palliser and Hind  
expeditions, the Ojibway were engaging to some extent in cross-cultural communication, but  
emphasizing they were refusing to engage in similar practices.  
 Counsel for Ontario submitted that Lovisek was not an objective witness. He  
characterized portions of her evidence as "expert advocacy." For instance, he referred to the  
portion of her evidence in chief where she cited Walmark to support her opinion that the  
Ojibway perceived Commissioner Simpson as an HBC trader, not as a representative of the  
Dominion Government and to the portion of the cross-examination where he had pointed out to  
Part 9. Credibility of the Experts  
133  
her that Walmark had actually written that the Ojibway associated Simpson with the HBC, not  
the Crown.  
 Lovisek gave evidence that since the Ojibway had a politically ranked society, they  
understood and appreciated that there were larger (higher ranked) and smaller (lower ranked)  
Euro- Canadian powers. For example, they viewed the HBC as a "small power." The point she  
was making in that evidence was that the Ojibway wanted to deal with an entity with sufficient  
power and authority to make and fulfill the Treaty promises.  
 Chartrand conceded in cross-examination on January 25, 2010 that the Ojibway concept  
of power was very complex:  
At pp. 31-32:  
Q. But even for the Ojibway, there is a component to this of expressing the idea that within Euro-  
Canadian society there are greater powers and lesser powers?  
A. Yes. And -- but, you know, again, it's very important to understand that …our culture thinks of  
power as being a thing, that is, it's objective, it's fixed. To the Ojibway, everything is situational. So  
I agree with you to the extent that we have here a chief making a relational allusion to power.  
And so, you know, again, in terms of this ranking, it's important to understand that fundamentally,  
power is a situational variable and that, in fact, can very rarely be properly known with certainty.  
Q. And …in this case what's important about the situation is that when it came time to talk about  
their rights and their future and the making of a treaty, they expected to deal with a power that was  
great enough to address those matters?  
A. I think I've made that point a number of times.  
At p. 37:  
Q. And, again, what I'm going to suggest to you is what we see coming out of this is a sense that the  
Ojibway understood that within Euro-Canadian society, you didn't just deal with anybody, but that  
there were different ranks of officials for different purposes?  
A. In general terms, yes.  
 Given that Lovisek's comment was focused on Ojibway perceptions of ranking, on  
Simpson's relatively lowly status as an HBC trader and not on the particular emanation of the  
Crown that was the source of Simpson's authority, and given that Simpson was acting under a  
Commission issued by the Dominion Government, in my view the criticism that Lovisek was  
being an expert advocate in incorrectly citing Walmark's opinion was unduly harsh.  
 Counsel for Ontario criticized Lovisek for emphasizing the importance of statements  
made by Dawson (Ex. 1, Vol. 14, tab 630) post-Treaty during the 1880s and 1890s about his  
recollections of the Treaty negotiations, including representations made by the Commissioners to  
the Ojibway that they would forever have the right to fish, to induce them to enter into the  
Treaty, without also mentioning Dawson's pre-Treaty comments about Ojibway awareness that  
the Dawson Route could have negative impacts on their hunting and fishing. I do not accept that  
criticism as valid. I note that in her evidence, Lovisek did mention that the Ojibway did  
understand that there could be negative impacts upon their fishing in the vicinity of the Dawson  
Route. She said that is why they asked for inclusion of their sturgeon fishing areas in their  
reserves. Before 1873, Dawson did recommend that Ojibway concerns could be ameliorated,  
inter alia by incorporating their sturgeon fishing areas into reserves to be set aside for their  
Part 9. Credibility of the Experts  
134  
exclusive use. Chartrand's evidence was that the Ojibway generally hunted in the interior, away  
from the Dawson Route.  
 As is evident later in these Reasons, I have accepted Lovisek's conclusion that Dawson's  
after-Treaty comments are important.  
 Counsel for Ontario specifically criticized Lovisek's failure to mention comments made  
by Dawson pre-1873 about positive agricultural prospects for the Treaty 3 area. Again, I note  
that those projections related primarily to the Dawson Route area. Both the Ojibway and Canada  
anticipated some agricultural development along the Rainy River. I also note that Dawson's  
comments about development prospects in the area were generally perceived as rosier than most.  
I agree with Lovisek's evidence that Dawson was a promoter of the Route. In a Globe & Mail  
article "A letter from Fort Frances," dated July 11, 1872, written just before the 1872  
negotiations began, the reporter poked fun at Dawson, making puns about his "holy" road  
…I feel sure that every mosquito who has been turned out of doors by his parents or has failed to earn  
a livelihood in other parts of the world, has emigrated to the Dawson Route…  
…
Mr. Simpson and the writer had together passed over this road in September last, and had then  
wondered and speculated as to the probable condition of this so-called immigrant route, when the  
winter's snow and the spring freshets had done their work upon it. The 'Cariboo Muskeg', that mile  
and half of corduroy undulating to the heavings of a quaking morass, will try their mettle, we  
thought, "Wait till that last six miles of sandy way through the tamarack swamp is tested by the  
ordeal of water, and then we shall see a holy road to the North-west Angle."  
(Plaintiffs' Closing Argument, April 22, 2010, page 15 re Ex. 1, Vol 5, Tab 180)  
 In short, I reject Ontario's submission that Lovisek was generally not an objective  
witness.  
 I note that in many important respects, Chartrand's evidence was consistent with  
Lovisek's.  
 After hearing, comparing and weighing the evidence of the three ethno-historical  
witnesses, I am of the view that Lovisek was the most knowledgeable about the Treaty 3  
Ojibway. I have relied heavily upon her evidence.  
Chartrand  
 Chartrand impressed me generally as a knowledgeable witness. His evidence was in  
many respects similar to Lovisek's.  
 After hearing all of his evidence and comparing it to Lovisek's, I am of the view that  
although he was generally knowledgeable about Ojibway people, he had less depth of knowledge  
and was less able to assist this Court with regard to the culture, ways, intention and  
understanding of these particular Ojibway than was Lovisek. Some of his conclusions were not  
specifically based on his knowledge of these Ojibway or on their specific circumstances in 1873.  
For example, his evidence on "negative consciousness of condition" was not sufficiently based  
 
Part 9. Credibility of the Experts  
135  
on perceptions of these particular Ojibway. I have found that these particular Ojibway were quite  
different from the other Aboriginal signatories of the other numbered treaties.  
 I do not accept the submission of counsel for Ontario that Chartrand's opinions are more  
balanced than Lovisek's.  
 Overall he impressed me as less objective than Lovisek. At times, he appeared to be  
straining to support Ontario's position in this litigation. I shall provide a few examples giving rise  
to this impression. I could have given more.  
 On May 23, 2006, in ordering Ontario to pay the costs of this trial of two issues on a  
partial indemnity basis, in advance, Spies J. referred to the evidence of Chartrand, at paragraphs  
172-175 as follows:  
[172] Counsel for the MNR argues however, that the uncontradicted evidence of Dr. Chartrand  
contradicts the plaintiffs' position. He submits that the Ojibway who negotiated Treaty 3 did not have  
any detailed knowledge of a Canadian Constitutional distinction between federal and provincial  
authorities, and any such distinction was not, to them, a meaningful aspect of the treaty. The  
defendants rely on his evidence from his affidavit and his statement:  
that "[i]t is implausible that the Ojibway who negotiated Treaty 3 held any detailed  
knowledge of a Canadian Constitutional distinction between Dominion and Provincial  
authorities, or that any such distinction was to them a meaningful aspect of the Treaty". In  
their eyes, and in the eyes of the Commissioners, the Treaty was with the Queen.  
[173] Dr. Chartrand was examined and in re-examination stated in part, as follows:  
1202.  
Q. … Does it remain your view  
25 that in the conception of the aboriginals negotiating for  
1 and ultimately signing Treaty 3 they were dealing with the  
2 Crown -- …  
3 …the Queen as a person and has what's  
4 gone on or has anything you've seen in the last day  
5 altered that view?  
6
A. No. And I would base that answer on  
7 the preponderance of references to the Queen and to the  
8 treaty being made between the Queen and the Ojibway that  
9 are found in records detailing verbatim or near-verbatim  
10 statements by the participants as well as in, for example,  
11 the [1869] list of demands.  
…
13  
20  
THE DEPONENT: …  
I do not dispute any contention, in fact,  
21 there is very good evidence in the documentary record to  
22 the effect that the Ojibway understood that they were  
23 dealing with individuals who belonged to a central  
24 government that was established at a place called Ottawa.  
25  
On the other hand, again, the totality of  
1 explanations given to the Ojibway indicate that that  
2 government had at its ultimate head and source of  
3 authority the Queen.  
[174]  
This evidence clearly qualifies the evidence in Dr. Chartrand's affidavit. Obviously if  
Ontario was not privy to the negotiations, nor referred to in the negotiations, it is too simplistic to say  
Part 9. Credibility of the Experts  
136  
that the Ojibway who negotiated Treaty 3 did not have any detailed knowledge of a Canadian  
Constitutional distinction between Dominion and Provincial authorities. As Dr. Chartrand  
acknowledges however, that does not mean that the Ojibway did not appreciate the distinction  
between the Queen and that there was a central government referred to in the treaty as the Dominion  
of Canada.  
[175]  
In my view, considering the totality of the evidence of Dr. Chartrand, there is certainly  
support for the plaintiffs' position that the phrase "Dominion Government" at the time was the federal  
government and that that is how the parties to the Treaty understood it.  
[Emphasis added.]  
 After that decision was released, and before this trial commenced, Chartrand issued a  
number of "corrections," including one retracting that answer and asserting that the Ojibway did  
not understand there was a central government referred to in the Treaty as the Dominion of  
Canada. Chartrand asserted he should not have referred to the federal government as a central  
government because the Ojibway were not aware that there was more than one level of Queen's  
government operating in Canada. Although they knew they were dealing with a government in  
Canada, there is no clear indication they knew they were dealing with a federal government "in  
the Euro-Canadian sense of the federal government." When he had earlier prepared his report  
(Ex. 60), Chartrand had not been so sure. It contains the following:  
… As no documents for the 1868-1872 period presenting verbatim quotes of Ojibway terms of  
address, attribute any significant number or consistent and clear references by Ojibway leaders to the  
'Government of the Dominion of Canada', the nature and extent of Ojibway understanding of the  
'government' with whom they were dealing, is obscured in the available documentary records. It  
remains unclear if the Ojibway understood the 'Dominion government' as a national-level government  
distinct from other governments in Canada.  
 He maintained during cross-examination that the Ojibway were unaware of the existence  
of other levels of government in Canada, on the basis that he didn't see that knowledge reflected  
in the documents. While Chartrand said at trial that the Ojibway had a concept of a generic  
Queen's government operating within Canada distinct from the American government, they did  
not understand that there were multiple Queen's governments in Canada or that the Dominion  
Government was a central national level government. He later said that they had an "underlying  
cognition that they were dealing with sovereigns through various representatives in Canada"  
(Chartrand, January 21 and 25, 2010.)  
 During his cross examination, Chartrand resisted a suggestion that in 1870 Simpson was  
correct in concluding the Red River Indians/Métis had been tampering with the Treaty 3  
Ojibway. He refused to acknowledge that the Treaty 3 Ojibway's refusal to cooperate with  
Wolesley's troops in the summer of 1870 was as the result of speaking with the Red River  
Indians. While he said he was "not in a position to prove there had been no communication  
between Red River and Treaty 3," he also said he did not dispute the Ojibway "had received  
information from somebody." He insisted that there was "no evidence" to support the conclusion  
that the Red River Indians were "tampering with the Treaty 3 Ojibway." (January 21, 2010 at  
p.31.)  
 That evidence seemed odd. I wondered what was behind it. When he later gave evidence  
about the lack of Ojibway knowledge about other levels of government in Canada, and explained  
that the Ojibway were unaware that there was more than one level of Queen's government in  
Part 9. Credibility of the Experts  
137  
Canada, I questioned whether his reluctance to acknowledge communications between the Treaty  
3 Ojibway and the Ojibway in Manitoba from whom the Treaty 3 Ojibway might have gleaned  
the existence of another level of government in Canada was the basis for his otherwise  
unexplained sensitivity.  
 In a different context, Chartrand gave evidence about another possible source of Ojibway  
knowledge of another level of government in Canada, albeit in trying to explain why it was not  
necessary for Morris to be more fulsome in his explanations during the negotiations as to what  
the Ojibway were being asked to give up.  
 Chartrand posited that it was not necessary because McKay may have earlier provided  
the needed explanations.  
 Morris had sent McKay, a member of the Manitoba Legislature, to the Treaty 3 area to  
promote the Treaty three times in the period immediately leading up to the 1873 negotiations. He  
was present throughout the 1873 negotiations, attended at least part of the Council meeting held  
overnight on October 2, 1873 and at Morris' request was at the Council meeting that preceded the  
recommencement of the negotiations on the morning of October 3. Chartrand explained that  
McKay, a Red River Metis, by reason of his background and Euro-Canadian education was able  
to act as a cultural intermediary and may have explained concepts, options, practical  
consequences, benefits and detriments of a Treaty to the Ojibway. It was McKay whom Morris  
tasked to explain the Treaty "in Indian" just before it was signed.  
 Chartrand agreed that McKay would have been able to explain the differences between  
Canada and the provinces and their respective jurisdictions. He would have understood the  
concept of a province. He had experience with government structures. He was aware of the  
events that had transpired at the Red River leading ultimately to the formation of the Province of  
Manitoba.  
 McKay had been present at the 1871 negotiations of Treaties 1 and 2 where Ex. 31,  
containing the note that "provinces cannot change the Treaty" was apparently prepared and  
perhaps discussed.  
 Therefore there was some evidence that McKay could have explained to the Ojibway that  
there was more than one level of Queen's government in Canada and the implications arising  
therefrom.  
 After Morris's statement on October 1 that the Ojibway would be able to hunt and fish on  
the lands being ceded until the lands were wanted, Chartrand said the Ojibway didn't question  
Morris on October 2 or during the remainder of the 1873 negotiations about "taking up" of land.  
In the absence of questions, Morris had had no reason to further explain the provision. Chartrand  
suggested it was not necessary for the Commissioners to explain the taking up clause during the  
negotiations because the Ojibway already understood that lands could be "taken up."  
 Chartrand took the position that the only reference during the negotiations to the "taking  
up" clause was on October 1.  
Part 9. Credibility of the Experts  
138  
 I have already referred to Nolin's note written on October 3 in response to a Chief's  
demand that they must have the privilege of travelling through the country. Chartrand ignored  
the Nolin note in interpreting the Harvesting Clause (January 21, 2010 at p. 40) and assumed that  
the Ojibway accepted Morris' proposal made on October 1 limiting their Harvesting Rights until  
the lands were wanted. He refused to acknowledge that Nolin's note made on October 3 recorded  
an October 3 discussion about Harvesting Rights. (January 26, 2010 at pp.7-10.) Chartrand  
interpreted the Chief's demand literally, i.e., he took the English translation at its face even  
though McKay and Nolin both seem to have understood the Chief's demand to relate to being  
able to continue harvesting on the seasonal round. He opined that the Chief's demand that "the  
Indians must have the privilege of travelling through the country" was literally related to  
travelling and did not, as Lovisek suggested, relate to a right to harvest, to continue the Ojibway  
traditional way of life/traditional harvesting. (January 26, 2010 at pp. 7-10.) He conceded that  
travelling was understood to involve harvesting but refused to acknowledge that Nolin's note on  
October 3 related to a discussion about Harvesting Rights that took place on October 3, 1873  
(January 26, 2010 at pp. 7-10.) He opined that the most plausible explanation for Nolin's entry on  
October 3 was Nolin's sudden recollection of Morris' October 1 statement that they could hunt  
and fish on ceded lands until the lands were wanted. He said referring back to the October 1  
statement was preferable because it required him to "make fewer assumptions" (January 25, 2010  
at p. 138) than the alternative explanation. He said a reference to hunting and wild rice  
harvesting that omitted fishing was "ethno-historically problematic" although he wasn't troubled  
that Nolin had referenced wild rice harvesting and Morris had not mentioned it on October 1. He  
also referred to the fact that it was inconsistent with Morris' statement on October 1, without  
sufficiently considering that Morris may have changed his position after October 1 (January 25,  
2010 at pp. 141-2.)  
 I found Chartrand's hypothesis that Nolin's note on October 3 was not a note of what was  
said on October 3 but was Nolin's sudden attempt (coincidentally at exactly the time when the  
discussion about travelling about the country was occurring) to recall what Morris had said two  
days earlier, to be implausible [but helpful if accepted in supporting Ontario's position that the  
Nolin note did not record a promise of perpetual Harvesting Rights made on October 3 that  
superseded Morris' earlier, more limited promise on October 1, 1873.]  
 Chartrand, having earlier conceded that Morris was aware of the content of Nolin's note,  
later waffled on the point.  
 Initially, Chartrand seems to have accepted as a given that Ontario's ownership of lands  
would give it exclusive rights. There are numerous passages in his main report to that effect.  
Chartrand opined in chief that when the 1874 Provisional Agreement was signed, Canada and  
Ontario understood that the determination of Ontario's boundaries would resolve which level of  
government would have jurisdiction to "take up" the Treaty 3 lands under the Treaty; "resolving  
the location of the boundary would simultaneously determine who had jurisdiction over what  
lands." He appears not to have considered the effect of valid intersecting of jurisdictions. He  
seemed to assume that this case was all about ownership rights. Like Ontario, he assumed that  
"taking up" was an ownership right, or was related strictly to use by the owner, not authorization  
by Canada of uses incompatible with Harvesting Rights.  
Part 9. Credibility of the Experts  
139  
 In cross examination, he conceded that as an ethno-historian he was not giving legal  
opinions and that at root, questions of jurisdiction are "purely legal" matters about which he has  
no expertise. He also said that he recognized that Canada continued to have jurisdiction over  
Indians in Ontario even after Canada lost the Boundary Dispute, but he did not appear to relate  
that concession to the meaning of the "taking up" provision or the reference to the Dominion in  
the Harvesting Clause (Chartrand, January 22, 2010 at p. 18)  
 In my view, Chartrand's lack of Constitutional and legal expertise explains why he  
initially did not question, for example, that after the 1874 Provisional Agreement was signed, all  
(exclusive) jurisdiction would be either in Ontario or Canada, depending on the result of the  
Boundary Dispute.  
 Chartrand repeatedly took the position that if something was not mentioned in the  
documents, it did not happen (January 21, 2010 at p. 23.)  
 Earlier in his evidence during his examination in chief, Chartrand had not hesitated to  
interpret Euro-Canadian legal documents or to ascribe thoughts to Morris. However, he refrained  
repeatedly from so doing during cross-examination. One example occurred during his cross-  
examination on January 22, 2010 at pp. 10-11  
Q. So I'm going to suggest that actually makes our difficulty when we get to Treaty 3 a bit more  
intense, because here it suggests that there was actually a choice made to insert a specific reference to  
the Dominion Government, correct?  
A. We're now getting into the mind of Alexander Morris.  
Q. Well, with the greatest of respect --  
A. So it's --  
Q. -- if ever your opinion has involved trying to interpret what was in the minds of the  
commissioners and the government -- I mean on this particular point what you give an opinion about  
is what was the intention of the commissioners and the government. That's a question of mental state.  
So we're into mental states, right?  
A. To have some idea as to whether there was a choice, I would be on more solid footing to put forth  
an opinion on the matter if we had a document that we can clearly attribute as being a precursor draft  
of the Treaty 3 document in which -- in which we see this decision being -- that specific decision  
being made. …  
 In my findings of fact with respect to the identity of the Treaty parties, I have concluded  
that Chartrand failed to give significant weight to the prior dealings of the Ojibway with  
representatives of Canada, including Dawson and Pither. He said on January 21, 2010 at pp. 122-  
3, "Knowing that the Route went through their territory under the direction of the Government of  
Canada is one thing but there is simply no evidence that the question was… a matter of concern  
to the Ojibway."  
 Since he had not seen any references to the Boundary Dispute in the Treaty documents,  
Chartrand concluded "the two phenomena evolved like ships passing in the night" (January 21,  
2010 at p. 131.) Again, he had simply assumed after Ontario won the Boundary Dispute it would  
have "exclusive jurisdiction," without considering that Canada might have intersecting  
jurisdiction under s. 91(24) and that Morris might have considered a loss of the Boundary  
Dispute in mentioning Canada in the Harvesting Clause.  
Part 9. Credibility of the Experts  
140  
 In contending that Morris did not consider the Boundary Dispute in drafting the  
Harvesting Clause, Chartrand said Morris did not mention the Boundary Dispute in his 1880  
book, even though the Board of Arbitrators had in 1878 already decided in Ontario's favour (i.e.,  
had held that Canada did not own the Disputed Territory.) Chartrand concluded that Morris'  
failure to mention the Boundary Dispute in his book meant that Morris was still of the view in  
1880 that the Disputed Territory would be found to be in Canada. His evidence contains the  
following:  
January 21 at p. 132:  
Q. … you're saying this was written with knowledge of the outcome of the … arbitration decision,  
correct?  
A. With knowledge of the arbitration decision.  
Q. So by the time that … Morris writes this book, he's fully aware now that there's a good likelihood  
that the lands are going to be in Ontario, the southern lands?  
A. Actually, I would say the opposite. I would say that Morris continued to consider that the lands  
were contained within the Northwest Territories in law.  
January 21 at p. 134  
Q. … Morris, in writing his book in full awareness of the arbitration decision [made in 1878] takes  
no occasion to say, oh, well, if it should turn out that this land is in Ontario, we didn't really mean this  
Dominion Government business in the taking up clause, does he?  
A. No, he doesn't.  
Q. He has the opportunity to make it clear then and there that there's something in the treaty that's  
not quite right, and he doesn't do it, does he?  
A. He doesn't make any allusion to the boundary dispute.  
January 22 at p. 5  
…a totality of body of available documents regarding the making of the treaty that do not allude to  
the boundary dispute, that do not refer commissioners to it as a factor to be integrated into the making  
of the treaty. And the reverse, the mirror image of this is also true.  
…
The development of the dispute between 1871 up to and including 1878 does not factor in the treaty  
or the making of the treaty. And it's clear that in terms of what is being primarily addressed, being  
the boundary question, it's clear that the parties are at that time subsuming the question of jurisdiction  
within the question.  
[Emphasis added.]  
 When confronted with an inconsistency between Morris' awareness of the Boundary  
Dispute and his assertion that Morris assumed that the Treaty 3 lands would always be in the  
Northwest Territories and thus Canada would always be the owner of the Disputed Territory,  
Chartrand said he was "not certain that Ontario's entire body of research was known to all  
parties" and later said he simply "cannot posit whether the federal government understood the  
exact geographical extent of Ontario's claim." (January 22, 2010 at pp. 6 and 7.)  
 Even though Chartrand agreed a plausible explanation for the mention of the Dominion  
in the Harvesting Clause was Canada's role in respect of treaties and its ongoing s. 91(24)  
responsibility under treaties to deal with grievances, he opined that Canada's s. 91(24) role and  
responsibility were "subsumed" by the fact that the Commissioners understood that the lands  
were in the Northwest Territories and by their knowledge of Canadian responsibility for Indians.  
Part 9. Credibility of the Experts  
141  
He conceded it was beyond his expertise to say whether both were in the minds of the  
Commissioners (January 22, 2010 at pp 74-77.)  
 Chartrand cautioned that certain of the references in the documents, which might  
otherwise lead this Court to the conclusion that the Ojibway understood that they were dealing  
with the Dominion Government, should be downplayed. For example, in referring to Dawson's  
letter to Langevin dated December 19, 1870 (Ex. 1, Vol. 4, tab 103), mentioning that the Chiefs  
had expressed themselves to be quite open to treat with the Dominion Government, he  
volunteered that Dawson's statement might not have reflected an Ojibway awareness that they  
would be treating with Canada but rather Dawson's assumption on the point. (January 15, 2010 at  
p. 27.)  
 Chartrand resisted the suggestion that Ontario had shirked its responsibilities in the past.  
For example, until he was taken to the pleadings in the Annuities Case [Ex. 4, p. 18], Chartrand  
could not recall that Ontario had taken the position in that litigation that it was not a party to  
Treaty 3 (January 22, 2010 at p. 123.)  
 It was not until he was being cross-examined on April 22, 2010 at p. 17 on his two reply  
reports prepared in response to Lovisek's reports, that he clarified that he considered them to be  
less authoritative than his main report. Until then, he had not acknowledged that their preparation  
had involved less review and analysis than had his primary report.  
 At this trial Chartrand admitted during cross-examination on January 26, 2010 that he had  
reviewed a copy of the Plaintiffs' argument filed in the costs motion in 2006, and had written a  
commentary to assist counsel for Ontario.  
 While any of these examples on its own might not have guided me to a conclusion that  
Chartrand's evidence was less balanced than Lovisek's, I am of the view that taken together with  
other examples contained here and elsewhere in these Reasons, they do support that conclusion.  
 While this is a minor consideration, it is nevertheless worth noting that unlike Lovisek,  
who has been retained by governments and First Nations, Chartrand has only been retained by  
governments (Ex. 59.)  
 Generally speaking, I prefer the evidence of Lovisek to that of Chartrand.  
Von Gernet  
 In my view, much of Von Gernet's general evidence is not particularly helpful to this  
Court in deciding the issues here, as it was not related specifically to the circumstances of the  
Treaty 3 Ojibway in 1873. For example, his evidence that reserves were intended to facilitate a  
shift from hunting and gathering mode to an agricultural mode was inapplicable here. If it were  
intended to suggest that the Commissioners expected these Ojibway to forsake hunting and rely  
on agriculture after the Treaty was signed, I reject it.  
 
Part 9. Credibility of the Experts  
142  
 Von Gernet said he had "never been troubled" by Morris' failure to explain that the  
Government was seeking a surrender or cession of lands. In cross-examination on December 10,  
2009 he said at pp. 100-101:  
I've seen the exact same argument and the -- your expression of puzzlement in many other cases.  
And I agree, it's a good point, there's no question that you're perfectly entitled to express that  
puzzlement that this is not the subject of discussion in any of these treaties. But my response has  
always been the same, and that is, if something is axiomatic, then there is no real need to discuss it.  
It's only negotiables that are not axiomatic.  
 He "did not find it surprising" that Morris did not expressly discuss a sale of lands or a  
giving up of resources at any time during the 1873 negotiations. The Commissioners did not  
need to mention the implications of surrender during the negotiations because the Ojibway  
already understood, based on experience of other Aboriginal people elsewhere, that surrender/the  
cession of lands/opening up to settlement, etc. was the raison d'être of treaties. It is  
"inconceivable" that the Ojibway did not understand they were giving up their lands in some  
fashion or another.  
 His evidence about the raison d'être of treaty-making was based on generalised  
circumstances I have found were largely absent in the Treaty 3 area. While "surrender of land"  
may have been the raison d'être for government negotiators in areas where the land was needed  
primarily for development, I have found on the circumstances here that it was not the  
Commissioners' primary motivation. Certainly it was not a motivation for the Ojibway.  
 I do not accept his evidence in chief that the Treaty 3 Ojibway understood, by reason of  
information transmitted via the "moccasin telegraph," that Treaty 3 would involve giving up  
resources on their lands.  
 Von Gernet attached significant weight to the Upper Canada treaties in offering his  
opinion that the Ojibway already understood the implications of the Treaty, despite the fact that  
the circumstances surrounding Treaty 3 and early Upper Canada treaties were very dissimilar  
and despite the fact that the linkage between the cession of land and the cession of Harvesting  
Rights had diminished by the time Treaty 3 was signed. In cross-examination, Von Gernet  
acknowledged the differences between the circumstances in Upper Canada and in the Treaty 3  
area. The former generally involved smaller parcels of land. Treaties in Upper Canada generally  
were negotiated in anticipation of imminent settlement. The Aboriginal parties understood the  
land was about to be occupied and developed. The early Upper Canadian treaties did not include  
right to harvest clauses. In the case of Treaty 3, I have found that apart from the Dawson Route  
area, significant development and agricultural settlement were NOT anticipated.  
 Between the signing of the early Upper Canadian treaties and Treaty 3, the Robinson  
Treaties and Old Crossing Treaties had intervened. At both negotiations, governments made  
representations to the Aboriginal parties that may well have affected the understanding of the  
Treaty 3 Ojibway with respect to Harvesting Rights. During the Robinson negotiations,  
Commissioner Robinson represented that the Indians could retain their hunting rights and were  
giving up nothing but a "nominal" title; during the Old Crossing negotiations, Commissioner  
Ramsey represented that the Chippewa were essentially giving up nothing, as they were, in  
Part 9. Credibility of the Experts  
143  
effect, trading a horse for the use of a horse. I have found the Robinson and Old Crossing  
representations and circumstances may have informed the Treaty 3 Ojibway understanding of the  
general implications of treaty-making.  
 Von Gernet seemed palpably reluctant to express any opinion that might be at odds with  
Ontario's overall position in this litigation. For example, he disagreed, "as a general statement,"  
that local governments were peopled by men whose interests, especially concerning lands, were  
usually in conflict with those of the First Nations. He would only agree on December 2, 2009 at  
p. 21 that the statement "does hold some truth, but not as a generalization."  
 He "somewhat" disagreed with Lovisek's statement that the Ojibway were a hunting and  
trapping people, saying it was "unfair to characterize them as being primarily hunter gatherers or  
even to emphasize that part of their subsistence." (Von Gernet, December 2, 2009 at p. 30.)  
 Von Gernet opined that the Ojibway believed they were dealing not with Canada but with  
the Queen. While he virtually conceded that the Ojibway understood that both the Dominion of  
Canada and the Province of Ontario existed in Canada, he opined that that understanding was not  
relevant or important to them. He maintained they were not concerned about "jurisdictional  
issues," despite their insistence on probing the extent of the authority of the Treaty  
Commissioners on October 2, 1873. For reasons outlined elsewhere, I have not accepted that the  
Ojibway were unconcerned about jurisdictional issues.  
 With respect to the Ojibway understanding of selling lands and willingness to do so, Von  
Gernet relied on a statement he attributed to Chief Blackstone in a letter in English dated August  
30, 1872 written on Blackstone's behalf by Antoine Tremblay containing the following:  
[w]e have been willing and still are to treat upon fair, reasonable terms and dispose of our interest or  
rights to lands between the height of land and Manitoba …'[i]nstead of three ($3) dollars per head,'  
we wish and require that we should be paid twenty ($20) per head yearly forever … If the  
Government consent to our … request we will surrender everything and give up all rights to the lands  
except that we shall have to have a Reserve for ourselves, which we will select …  
 Blackstone could not speak English. Dawson challenged portions of that letter because he  
felt that they were defamatory. He believed that Tremblay, a tavern owner, had a motive to  
defame him because of his known opposition to taverns. Dawson asked an officer of the Public  
Works Department to meet with Blackstone to probe whether he had actually made the  
comments about Dawson contained in the letter. Blackstone said that various passages about  
Dawson in the letter did not accurately represent his views. Nevertheless, despite that history,  
Von Gernet relied heavily on other portions of the same letter, suggesting to this Court that  
Blackstone's disavowal of some parts of the letter actually bolstered the credibility of the parts of  
the letter he had not specifically disavowed. I note that Blackstone had only been asked about the  
truthfulness of the portions of the letter relating to Dawson.  
 I found Von Gernet's assertion that he considered the unredacted portions of Blackstone's  
letter to be even more credible than they would have been if the redacted portions had not been  
challenged, unconvincing to say the least. The whole letter is patently suspect in my view. The  
truth of the redacted portions had been specifically questioned because they related specifically  
Part 9. Credibility of the Experts  
144  
to Dawson. The truth of the portions unrelated to Dawson had not been specifically questioned.  
Their truthfulness had not been confirmed by Blackstone.  
 I have already referred to Von Gernet's comments that representations to the effect they  
would be able to continue traditional harvesting, made by government officials in the course of  
attempts to convince the Robinson and Old Crossing Indians to enter into treaties, were not  
relevant because the Ojibway would not have believed them.  
 At least in Canada, the Honour of the Crown requires government representatives to be  
truthful when they make representations to the First Nations. Courts are to assume that  
governments intend to keep their promises. Aboriginal parties are entitled to rely on promises  
made.  
 Von Gernet conceded in cross-examination that Morris was aware of the Boundary  
Dispute in 1873. However, he opined that Morris' awareness of the Boundary Dispute did not  
enter into the treaty-making process/was "not a live issue" for Morris during the Treaty  
negotiations. While I accept that he reviewed Morris' writings and speeches and found no  
reference to the Boundary Dispute, I question how his ethno-historical expertise qualified him to  
give such an opinion. [Chartrand did concede that Morris' reactions to the existence of the  
Boundary Dispute involved legal and Constitutional considerations about which he had no  
particular expertise.] I found Von Gernet's evidence regarding Morris' consideration of the  
Boundary Dispute to be of little assistance given his lack of legal and Constitutional expertise.  
 Similarly, Von Gernet's expertise on Canada West's jurisdiction over Indians after 1860,  
based as it was on a simple review of a number of historical documents, was less extensive,  
informed and nuanced than Milloy's.  
 His opinion with respect to the Old Crossing Treaty, based as it was on a simple review  
of a few documents and not undertaken as part of a comprehensive comparative contextual  
analysis, was less helpful to me than Lovisek's on that Treaty.  
 I found unpersuasive Von Gernet's conclusion that the Ojibway had knowledge of the  
scope of the Treaty 3 land cession, based as it was on the fact that the Shorthand Reporter had a  
metes and bounds description before the Treaty was signed. Whether or not the Manitoban was  
"the organ" of the Manitoba government (and by extension subject to direction from Morris, as  
submitted by the Plaintiffs), Morris and the Shorthand Reporter travelled to the North West  
Angle from Winnipeg together, and waited for several days before the negotiations began. I am  
of the view that the Reporter's access to the metes and bounds description used by the  
Commissioners in the Treaty does not prove that the Ojibway had similar access, or would have  
understood a metes and bounds description even if they had.  
 In short, Von Gernet had/has no particular expertise on the Treaty 3 Ojibway or their  
circumstances in 1873. While I accept that he is a qualified expert in other aspects of  
anthropology, for the reasons given above, I do not accept the submission of counsel for Ontario  
that his opinion is "more balanced" than Lovisek's.  
Part 9. Credibility of the Experts  
145  
 Generally speaking, where the evidence of Von Gernet differed from Lovisek's evidence,  
I have preferred Lovisek's. I have also tended to prefer Chartrand's evidence to Von Gernet's.  
The Historical & Political Witnesses  
Milloy  
 In my view, Milloy is/was a very knowledgeable and reliable historical witness on  
matters within his area of expertise. He holds a doctorate from the University of Oxford  
specifically with respect to the development of British Imperial Policy for Canadian Indians  
between the 1750s and 1860s, including the policy of conciliation and civilization after 1830. I  
generally accept his evidence, including on the development of Indian policy, the reasons for the  
federal government's assumption of s. 91(24) jurisdiction over Indians and Indian lands and  
relevant to Morris' mention of "taking up by the Dominion of Canada" in the Treaty 3 Harvesting  
Clause.  
 However, I found his evidence on the Boundary Dispute to be of little assistance, as he  
had not studied it in detail and, like Von Gernet and Chartrand, was without legal expertise.  
 I have preferred Milloy's evidence to Von Gernet's with respect to the placement of  
s. 91(24), the transfer of jurisdiction over Indians to Ontario culminating in 1860 and Ontario's  
jurisdiction over Indians from 1860 onwards. On Euro-Canadian historical matters, I have  
concluded that Milloy has greater depth and historical expertise than Von Gernet, whose primary  
expertise is with respect to First Nations.  
 Similarly, I have accepted Milloy's evidence on Canada's priorities in 1873, including his  
evidence that Canada considered it more important to assimilate the West than to assimilate the  
Treaty 3 Ojibway.  
 Counsel for Ontario also made much of Milloy's answers in cross-examination about  
Canada's/Department of Indian Affairs' lack of involvement in administering off-reserve lands in  
the Disputed Territory after 1894 and in Keewatin after 1912.  
 In posing questions about federal involvement in Ontario's authorization of land uses,  
counsel for Ontario focused on exercises of Ontario's ownership jurisdiction and not on exercises  
of Canada's s. 91(24) jurisdiction to protect Harvesting Rights. The questions ignored the reality  
of intersecting jurisdictions. I found those questions and Milloy's attempts to answer them  
unhelpful.  
 Counsel for Ontario also made much of answers given by Milloy that he was not aware  
whether Canada had been involved when Ontario had patented and licensed land in Ontario.  
Under ss. 92 and 109, apart from the Treaty, Ontario had the right to grant patents and issue  
licenses. I would not have expected Canada to be involved in the licensing and patenting process  
under s. 109 UNLESS s. 91(24) interests were involved, i.e., when there was a conflict or  
perceived conflict between Ontario's proprietary interests and Canada's s. 91(24) interests. In any  
event, by 1894 Canada had legislated away its own right/obligation to authorize or refuse to  
   
Part 9. Credibility of the Experts  
146  
authorize land uses incompatible with Harvesting Rights in the Disputed Territory. I found  
Milloy's answers in response to those questions to be unhelpful and outside of his expertise.  
Saywell  
 Dr. John Saywell, an historian, gave evidence on the context of federal-provincial  
relations post-Confederation. He received a PhD from Harvard in 1956. He was most qualified in  
Modern Canadian and Political Constitutional History as it related to federalism and federal-  
provincial relations, including in the period between 1867 and 1912. The focus of his studies has  
been on the Euro-Canadian political classes. To him, judicial Reasons for Judgment and other  
documentation filed in respect of litigation were historical documents that shed light on historical  
issues.  
 I found him to be a knowledgeable witness with respect to the thinking of Euro-Canadian  
politicians 1867-1912.  
Vipond  
 Dr. Robert Vipond, a political scientist and full professor of Political Science at the  
University of Toronto, with a PhD from Harvard in 1983, is a Constitutionalist. He has a  
particular interest in Constitutional development, specializing in Canadian federalism and the  
development of the Canadian Constitution 1864-1900.  
 He has studied ideas, particularly of the English Canadian political elite, "the leading  
white guys as they created a nation." (February 23, 2010 at p. 14.)  
 He has looked at documents, including pamphlets, debates, legal cases to study how  
people thought about issues at different times: "documents illuminate a particular way of  
thinking." (February 22, 2010 at p. 130.)  
 His dissertation, "Federalism and the Problem of Sovereignty: Constitutional Politics and  
the Rise of the Provincial Rights Movement in Canada," and his particular expertise were  
therefore of relevance to Euro-Canadian thinking from the time of Confederation to 1912.  
 I found Vipond to be a knowledgeable and credible witness. His evidence overall was of  
some assistance to this Court, especially with respect to the mindset/understanding of Morris in  
1873; of the legislators in 1891 and 1912; the provincial autonomists on exercises by Canada of  
its s. 91(24) jurisdiction.  
 However, he has no expertise to assist this Court in determining the Aboriginal  
perspective. (February 23, 2010 at p. 13.)  
 He did not feel qualified to comment on qualifications to Ontario's proprietary rights in s.  
109 on account of Indian rights (February 23, 2010 at p. 44) or restrictions on Ontario's rights in  
the face of Indian interests (February 23, 2010 at p. 118.)  
   
Part 9. Credibility of the Experts  
147  
10. FINDINGS OF FACT, PART 1  
Findings re Interests of Canada  
 The Higher Courts have repeatedly cautioned that regardless of the similarity in wording  
among treaties, it is necessary to carefully examine the specific facts in each case in coming to  
factual conclusions about the meaning to be given to any specific treaty.  
 With respect to Treaty 3, the understanding of the Commissioners and their objectives  
must be determined having regard to the specific evidence in this case.  
 On the specific facts here, I have found that the Treaty Commissioners were anxious to  
enter into a treaty to ensure that national priorities could be met.  
 I find Canada perceived it needed a treaty to ensure safe passage of settlers and railway  
workers through and in the Treaty 3 territory and so it could honour its commitments to British  
Columbia and Great Britain.  
 Canada appreciated that protecting the Ojibway was important to protecting Canada's  
strategic interests. It took Indians and Indian rights very seriously. In 1873, the Commissioners  
viewed fulfillment of the Treaty terms as important. To keep its promises and to protect its  
national interests, Canada needed to be able to ensure that its vital s. 91(24) interests were  
secure.  
 I accept the evidence of Milloy that in 1873, "conciliation" was thought to be crucial to  
nation-building and to assimilating the West so national priorities could be met.  
 I accept Saywell's evidence that in the 1870s, the North American Indians were still seen  
as being capable of opposing European advance in the territory. There was a widely held view  
among the political classes that good and peaceful relationships with the Indians in the  
Northwest must be established. If they were not, the Indians could be a constant source of trouble  
and expense. This is evident from the report on the 1872 treaty negotiations and Dawson's  
correspondence, among other evidence.  
 I find that the Commissioners and Canada recognized that it was in Canada's strategic  
interest to promote peace and friendship with these Ojibway, to prevent unhappy Ojibway from  
attacking travelers on the Dawson Route and to allow surveyors and builders of the CPR to meet  
their December 31, 1876 deadline for completion of the Treaty 3 portion. I find that Canada  
wanted to avoid the significant costs of stationing troops in the area.  
 I note in his Official Report of October 14, 1873, Morris included the following:  
It is fortunate too that the arrangement has been effected as the Indians along the lakes and rivers  
were dissatisfied at the use of the waters, which they considered theirs, without compensation, so  
much indeed, that I believe if the treaty had not been made, the Government would have been  
compelled to place a force on the line next year.  
   
Part 10. Findings of Fact Part I  
148  
 Given the need for security of the CPR and Dawson Route, I find the Commissioners  
emphasized peace and friendship during the negotiations. Morris and Dawson repeatedly referred  
to future friendship:  
September 30, 1873:  
Morris: "The reason I am here today is the Queen's Government wish to have  
a treaty with you and take you by the hand and never let your hand go." (Dawson's Notes, Ex. 1, Vol.  
6, Tab 268);  
October 1, 1873:  
Dawson: "[Dawson] had long looked forward to this meeting ... so as to fix  
permanently the friendly relations between the Indians and the white man." (Morris, Ex. 9, p. 55;  
October 1, 1873:  
Morris: "I want to settle all matters both of the past and the present, so that  
the white man and the red man will always be friends." (Morris, Ex. 9, p. 58);  
October 3, 1873:  
Morris : " ... that we wish to do the utmost in our power to make you  
contented, so that the white and red man will always be friends." (Morris, Ex. 9, p. 67);  
October 3, 1873:  
Morris: "I accept your hand and with it the lands, and will keep all my  
promises, in the firm belief that the treaty now to be signed will bind the red man and the white  
together as friends forever." (Morris, Ex. 9, p. 68)  
 The Chiefs in turn also emphasized the importance of the relationship being created:  
October 3, 1873:  
Mawedopenais: "Depending upon the words that you have told us, and  
stretched out your hands in a friendly way, I depend upon that." (Morris, Ex. 9, p. 68);  
October 3, 1873:  
Mawedopenais: " ... you have promised the good things; you have given us  
your best compliments and wishes not only for once but forever; let there now for ever be peace and  
friendship between us." (Morris, Ex. 9, p.73; Dawson Notes, Ex. 1, Vol 6, tab 268, p. 6 of 7);  
October 3, 1873:  
Mawedopenais: "You understand me now, that I have taken your hand  
firmly and in friendship." (Morris, Ex. 9, p. 73; Dawson Notes, Ex. 1, Vol 6, tab 268, p 6 of 7.)  
 I find the Commissioners promised and the Ojibway relied upon the promise of future  
friendship between the Ojibway and their Treaty partner.  
 Chartrand's cross-examination on January 22, 2010 contains the following at p. 78:  
Q. …And I just want to direct you to Mr. Dawson's speech, and the second sentence of that:  
"He had long looked forward to this meeting, when all matters relating to the past, the present,  
and the future, could be disposed of so as to fix permanently the friendly relations between the  
Indians and the white men."  
I mean, isn't that an indication that they're framing this around the -- they're framing these  
negotiations around the special relationship between -- and to avoid arguments with you for now, the  
Crown and Indians?  
A. Yes, certainly.  
 The Commissioners were aware of Canada's s. 91(24) responsibilities and Chartrand's  
January 22, 2010 cross-examination contains the following at pp. 79-80:  
Q. …He's relating this directly to, you know, the devising of a scheme whereby both white men and  
Indians would be benefited.  
A. Right.  
Q. That's really at the core of the historic treaty-making function, isn't that fair?  
A. Yes, it is.  
Part 10. Findings of Fact Part I  
149  
Q. And that sort of understanding post-1867 that this is the federal government's responsibility,  
right?  
A. Yes, that's correct.  
Q. Part of their responsibility for Indians?  
A. Yes, that's correct.  
Q. And if we go over to page 58, to the opening of the offer. This is Morris' offer. It's framed in the  
words:  
"'I want to settle all matters both of the past and present, so that the white and red man will  
always be friends.'"  
Again, he's framing the offer squarely within that historic treaty-making role, correct?  
A. The treaty-making role, yes, certainly.  
Q. Which by this time Morris clearly understood was vested in the federal government?  
A. Well, since 1867.  
Q. So what he's alluding to here is the responsibility of the federal government to Indians, right?  
A. Correct.  
 I have earlier quoted portions from Morris' essays, speeches and book where he  
mentioned Canada's responsibility to the Indians.  
 On January 22, Chartrand agreed and I find that the Commissioners understood that at the  
time they negotiated the Treaty, the Dominion Government had a responsibility to Indians under  
s. 91(24), which would continue under the Treaty, even within Ontario if Canada lost the  
Boundary Dispute.  
 I accept Milloy's evidence that while Canada's policy as of 1873 was generally to  
assimilate Indians, general policy considerations here gave way to other priorities. I accept that  
Canada's biggest post-Confederation challenge was assimilating its huge new Empire to the West  
and that its goal of assimilating Indians was manifestly less important. Given the precarious  
security in the West involving First Nations threats, Canada, like the Imperial Government had  
done much earlier, recognized the wisdom of continuing the policies and strategies that had been  
behind the Proclamation of 1763. Those responsible for Canadian Indian Affairs returned to the  
policy of "conciliation" and the making of promises of protection necessary to achieve  
conciliation.  
 While I do not doubt that Morris was aware of the federal policy of assimilating Indians,  
I accept Milloy's evidence that implementation of Indian policy prior to 1873 had not been  
uniform. In this case, the Commissioners and the members of the Canadian Privy Council who  
provided their authority and approved the Treaty terms were weighing various national priorities.  
In the circumstances here, assimilation of the West required peace and friendship with the Treaty  
3 Ojibway.  
 I accept Milloy's evidence that, historically, the Department of Indian Affairs was  
directed from the top and Indians were insulated from local settlers and governments whom the  
Imperial government had perceived could not be trusted to deal fairly with Indians. Part of the  
rationale for the placement of s. 91(24) with the federal government was protection of the  
minority Indian interest. I accept Milloy's evidence that Treaty Commissioners intended to  
interpose Canada between the Indians and settlers.  
Part 10. Findings of Fact Part I  
150  
 I accept Milloy's evidence, relating to the provenance of s. 91(24) and the history of  
Imperial Indian policy as applied in Canada, and the evidence of Vipond and Saywell that the  
Treaty Commissioners were aware they were working within a tradition of protection and  
"guardianship" of Indians.  
 It is clear from Nova Brittania and given his education and background, that Morris was  
aware of the model of Imperial administration and of Canada's Constitutional role, powers and  
obligations.  
 Morris' first-hand experience and knowledge of the historical, political, legal and  
Constitutional background canvassed in these Reasons, including the thinking behind the  
placement of s. 91(24 ) under federal jurisdiction, the specific limitation in s. 109, the interaction  
between federal and provincial powers, the promises made to British Columbia and Great  
Britain, the history of Imperial policy and dealings with the Indians, and the implications of the  
ongoing Boundary Dispute are relevant to gleaning his understanding and intent in drafting the  
Treaty and in determining the promises made in 1873.  
 As a "trained Constitutional lawyer" and a keen student of Imperial and Canadian history,  
Morris was clearly aware that Canada's s. 91(24) jurisdiction covered Canada's ability to make  
treaties and extinguish rights recognized under treaties. (Morris and the other Commissioners  
were taking their direction principally from the federal Department of Indian Affairs.) I find he  
was aware of the historic Imperial method of dealing with North American Indians; he was  
aware of the Imperial model dating back at least to the Proclamation of 1763 and its goal of  
protecting the Indians against interference from local settlers by reserving to them the use of  
their hunting grounds and administering Indian affairs centrally.  
 Morris was aware that Canada had undertaken the protection of the Indian inhabitants of  
the HBC Territories as a condition of their transfer to Canada.  
 Chartrand agreed in cross-examination on January 22, 2010 at pp. 83-85 that Morris  
believed that the federal government had inherited the operational aspects of obligation and duty  
previously exercised by the Imperial government:  
Q. … Morris knows that in the contemporary 1873 context, it is, in fact, the federal government that's  
the inheritor of the operational aspects of that package of Crown obligation and duty?  
A. He knows, assumes, believes, whatever. You know, again –  
Q. That's the framework he's working in?  
A. … yeah, it's the basic understanding that he has.  
 In 1873, I find Canada recognized its obligation to protect the Indians, its wards, a  
vulnerable minority - against exploitation by the majority.  
 I find that Morris appreciated that one of the reasons the Fathers of Confederation placed  
Indians and Lands reserved for the Indians under federal jurisdiction was to protect Indians, a  
vulnerable minority/the pupils or wards of the Dominion, from exploitation by the majority. He  
appreciated that to protect Canada's strategic interests, it was necessary to protect the Indians  
from local governments that might engage in activities that could antagonize the Indians.  
Part 10. Findings of Fact Part I  
151  
 I accept Milloy's evidence (October 19, 2009 at p. 47) that after the 1760s, the Imperial  
authorities took responsibility for protecting Indians, a vulnerable minority, against exploitation  
by colonial/provincial authorities, and that after 1867, the federal government took over the  
Imperial responsibility vis-à-vis the Indians. I find that Morris, a keen student of Imperial  
history, was aware that such an approach would foster Canadian strategic interests, just as it had  
previously similarly fostered Imperial strategic interests in undeveloped territories.  
 Milloy's evidence is consistent with the opinion expressed by Professor Hogg in  
Constitutional Law of Canada, supra, at 756, previously quoted at paragraph 141 above.  
 I reject the submission of Ontario that Morris and the other Commissioners were  
oblivious to protecting the Indians. Even before Confederation, Morris understood the  
obligations to be assumed under s. 91(24). In his 1858 lecture generally about the annexation of  
the West, published in Nova Brittania (Ex. 130), one of the first matters he mentioned was the  
interests of the Indians, "a proper sense of the responsibilities to be assumed in regard to the  
well-being of the native and other inhabitants."  
 All three Treaty Commissioners understood the importance of traditional harvesting to  
the Ojibway and therefore the importance of promising continuing Harvesting Rights to induce  
the Ojibway to enter into the Treaty.  
 They knew it would not be easy to achieve an agreement. Key Ojibway Chiefs were  
"careless" about a treaty, divided among themselves and quite capable of walking away from the  
negotiating tent as they had done in 1871 and 1872.  
 In 1873, I find that the Treaty Commissioners were concerned about Ojibway  
indifference to a treaty. I note that in 1873, before the negotiations began, the Indians objected to  
the location and kept the Commissioners waiting for several days before they were willing to  
start negotiating.  
 With respect to the submission of counsel for Ontario that Dominion Indian policy did  
not seek to promote hunting and fishing, while I have accepted that Canada's overall policy at the  
time was to encourage the Indians to adopt agricultural pursuits, I find that the Commissioners  
understood that most of the Treaty 3 lands were not suited to agriculture. Morris made it clear to  
the Treaty 3 Ojibway that he expected their gardening to supplement, not replace, their  
traditional harvesting. On October 3, 1873 he said, "I think I should … give you the means to  
grow some food, so that if it is a bad year for fishing and hunting, you may have something for  
your children."  
 I recognize that when he wrote Ex. 9, Morris mentioned not only that Treaty 3  
"tranquilized the large Indian population," was "of great importance to Canada as it included the  
Dawson Route and the Canadian Pacific Railway," but also it included "a large extent of fertile  
lands." I find he must have been referring to the only fertile lands known at the time to exist in  
the area, the lands along the Rainy River, adjacent to the Dawson Route.  
Part 10. Findings of Fact Part I  
152  
 I have considered that the Treaty does contain boilerplate language referring to opening  
of the lands for settlement and other purposes. While generally speaking, I accept that the  
opening up of Western lands for settlement and development was a primary motivator of the  
numbered treaties, on the specific evidence, I find it was not the primary motivator here.  
 This conclusion is consistent with that of the JCPC in the Annuities Case in 1910. Lord  
Loreburn held that in making the treaty, the Dominion Government/Canada had acted, not for the  
benefit of the lands, but for distinct and important interests of its own.  
 I have found that apart from the Rainy River area, the prospects for agricultural  
settlement in the Treaty 3 area were perceived as being dismal.  
 I find that in 1873, Morris and the other Commissioners knew that there was considerable  
scepticism about the value of the Treaty 3 lands for agricultural and development purposes.  
Apart from the Rainy River area, the Treaty 3 area was viewed generally as unpromising for  
agricultural development.  
 By the end of his cross-examination, Chartrand had essentially agreed with Lovisek that  
widespread agricultural uses were not expected in the Treaty 3 area away from the Rainy River. I  
find that the Commissioners did not think that the Treaty 3 area was conducive to agriculture  
apart from the Rainy River area.  
 I find on the evidence that while the Commissioners expected some settlement in the  
Treaty 3 area, primarily in the area of the Dawson Route along the Rainy River, they did not  
consider settlement or indeed future development of the area to be as important as other national  
priorities, including providing settlers safe transport to the West and facilitating the building of  
the CPR between Fort Garry and Fort William without undue security costs or delay by the  
deadline of December 31, 1876.  
 The Commissioners viewed prospects for lumbering in "the land between" guardedly.  
The pine was thought to be small. Timber could not be floated towards settled Canada given the  
direction of the flow of Treaty 3 rivers. While some mining was expected, it was not anticipated  
it would interfere with traditional resource harvesting.  
 At the same time, from Canada's perspective, the continuation of the hunting, trapping  
and fishing rights was important to ensuring that the Ojibway did not become dependent upon  
relief or welfare delivered by the Department of Indian Affairs.  
 In short, Canada and the Commissioners were primarily interested in securing the route  
through the Treaty 3 territory and less concerned with the prospects of the territory itself. Given  
the urgency of securing the Dawson Route and the completion of the CPR within the Treaty 3  
area by December 31, 1876, they needed to get the Treaty done.  
Part 10. Findings of Fact Part I  
153  
Findings re Interests of Ojibway  
 I accept Chartrand's evidence that in determining understanding and intention in treaty  
cases, it is necessary to focus on the specific circumstances of each treaty:  
December 15, 2009  
Q. Is it your view that when one has considered the understanding of the parties with respect to one  
treaty on a given occasion, is that something that would be useful to an ethno-historian when he turns  
to look at another treaty?  
A. …The making of treaty agreements … are discrete events. And so it's important, if one is to seek  
to document the understandings of the parties to a particular treaty, to conduct in-depth research on  
the making and negotiation of that particular treaty.  
January 25, 2010  
Q. Right. And in fairness… I think you've been quite clear about this … in your view, you do, if you  
want to come to a deep understanding of a particular treaty circumstances, have to have regard to  
what happened in those treaty negotiations in the circumstances of those people?  
A. Absolutely.  
…
A. Certainly in terms of trying to understand what were the concerns of the Treaty 3 Ojibway, it's  
imperative to look at their own circumstances  
 It is stating the obvious to say that different circumstances may lead treaty signatories to  
have different understandings. Depending on their bargaining power, Aboriginal parties may  
make different demands and Treaty Commissioners may make different promises. Even when  
treaty language is boilerplate, the actual treaty terms may be found to differ from the formal  
written treaty terms. Identical formal treaty terms may be interpreted differently from treaty to  
treaty, depending on the contextual evidence and findings about actual mutual intention and  
understanding.  
 Instead of taking a more general approach to Ojibway intent and understanding, as Von  
Gernet urged this Court to do, I have considered the specific evidence of these Ojibway,  
including the bargaining environment, the specific demands made by the Ojibway, and the  
specific promises made by the Commissioners in relation to Treaty 3. I do not accept Von  
Gernet's assertion about the application of a "general understanding of the time" to the  
understanding of Treaty 3 Ojibway. The circumstances of earlier treaties in Southern Ontario  
from which that understanding was said to be derived differed greatly from the circumstances of  
the Treaty 3 Ojibway in 1873. The Ojibway did not understand that a treaty would result in the  
loss of their Harvesting Rights. They had information from their relatives leading to a different  
conclusion.  
 In short, I find, based on the evidence of all of Von Gernet, Chartrand and Lovisek, that  
the Treaty 3 Ojibway were aware of the treaty experiences of their kin to the south, west and  
east.  
 As of 1873, I find that the Ojibway were aware of the representations that had been made  
to their kin to the south during the negotiation of the Old Crossing Treaty – that the consequence  
of signing that Treaty would be like giving up a horse, then getting back the use of that horse.  
 
Part 10. Findings of Fact Part I  
154  
 On the evidence before me I find that as of 1873, the Treaty 3 Ojibway were also aware  
of the promises made to their kin to the east during the Robinson Treaty negotiations in effect  
that their Harvesting Rights would be virtually unaffected. By 1873 that perception had been  
borne out, as little development had occurred in the Robinson Treaty region. I find that in 1873,  
the Treaty 3 Ojibway perceived that their kin to the east who had signed the Robinson Treaties  
had received what they had been promised: they had been able to receive annuities without  
significant negative effect on their Harvesting Rights.  
 I reject Von Gernet's evidence that the Robinson signatories would not have believed the  
harvesting promises made to them in 1850. I do not accept his assertion that the Treaty 3  
Ojibway would have understood the negative implications of cessions of lands in respect of  
resources to be the same as those in the earlier Upper Canada Treaties.  
 I reject the evidence of Chartrand in chief and of Von Gernet that in 1873 the Ojibway  
had a negative consciousness of their condition.  
 I reject the evidence of Von Gernet and Chartrand to the effect that the Ojibway  
understood they needed to enter into a treaty in 1873.  
 I find the Rainy River Chiefs were "careless about entering into a treaty," meaning they  
were in no rush to make a deal. They did not believe they needed to enter into a treaty, or that  
they should accept the best deal they could negotiate whatever it might be. They were under no  
immediate threat. The resources that provided their sustenance were not diminishing. Away from  
the Dawson Route, they were not facing large influxes of Euro-Canadian intruders. Settlers were  
passing through their territory, not settling on it. They were quite capable of all together saying  
No to any treaty proposal.  
 Unlike their kin to the West who had much more fertile and valuable land (who had  
entered into Treaties 1 and 2 in 1871), they had twice refused to enter into a treaty in 1871 and  
1872. They perceived they were negotiating from a position of strength. They would not be  
hustled. As Lovisek said on October 22, 2009 at p. 26, they were taking a wait and see approach.  
They would take their time.  
 The Treaty 3 Ojibway loved their lives and their country (Lovisek, November 16, 2009 at  
p. 39.) They relished their way of life, including their seasonal round of trapping, hunting,  
fishing and harvesting over the breadth of their territories. They valued their customs and were  
not prepared to give them up. They had shown resolve in protecting their land and their culture,  
politely but firmly rejecting Christianity. They liked being Indians. They were "proud,"  
"spirited," "saucy," "obstinate," "independent." Euro-Canadians had marvelled that they had  
shown no sense of inferiority and were "incapable of showing gratitude."  
 I accept the evidence of Lovisek and parts of the evidence of Chartrand that they were  
prepared to embrace a Euro-Canadian presence only if it would be compatible with their  
cherished way of life, and would not cause serious interference with their hunting, fishing and  
trapping - central aspects of their distinctive culture central to their identity.  
Part 10. Findings of Fact Part I  
155  
 In 1873 the Commissioners understood that the Treaty 3 Ojibway were demanding more  
for their "barren and sterile lands," their "swamp and muskeg," than the signatories of Treaties 1  
and 2 had agreed to receive in 1871 for their "magnificent" prairie lands. (See Archibald letter to  
Secretary of State dated July 22, 1871.)  
 I find that the Ojibway eventually were prepared to enter into the Treaty in 1873 only  
because they believed that they were entering into a relationship with Canada that would provide  
benefits. The Euro-Canadian Commissioners were promising that the Treaty would provide  
economic opportunities and at the same time they could continue their traditional way of making  
a living without significant interference.  
Re The 1869 Demands  
 The primary contested issue with respect to the 1869 Demands was whether they related  
to a right-of-way agreement or an agreement for the cession of the whole Treaty 3 area.  
 Lovisek opined that the 1869 Demands related not to a treaty of cession, but to a right of  
way/passage through the Treaty 3 lands and the building of some works along the Route. She  
noted that in 1869 when the demands were formulated, the only matter under discussion was a  
right of way agreement.  
 Counsel for Ontario submitted that the 1869 Demands must have related to a cession of  
lands, as they included a provision for the setting aside of reserves.  
 I have concluded, based in part on the evidence of Lovisek on the point, which I accept,  
that the 1869 Demands were made in respect of a proposal for a right-of-way. In 1869, the  
Chiefs in the vicinity of the Dawson Route were the only participants in the discussions leading  
to the formulation of the 1869 Demands. In 1869, the only matter under discussion was a right of  
way. The Rainy River Chiefs requested reserves because they wanted to ensure that their  
sturgeon fishing areas and gardens in the vicinity of the Dawson Route would be preserved for  
their own exclusive use.  
 In 1873, all Chiefs from the whole Treaty 3 area, not just the Chiefs from the vicinity of  
the Dawson Route, were present at and participated in the Treaty negotiations.  
 I have found that by 1873, the Chiefs understood they were being asked to share the use  
of all the Treaty 3 lands. Given my finding that in 1873 the Chiefs understood the territory  
affected by the Treaty was the territory of all the Chiefs in attendance, my findings with respect  
to the 1869 Demands are of secondary importance. I have found that all the Chiefs understood  
and intended to give up exclusive use and share the use of the whole Treaty area, on certain  
conditions, which by October 3 they understood the Commissioners had agreed to meet.  
 In my view, the 1869 Demands are significant in two important respects. Firstly, they  
showed the Ojibway understood the value of their lands. Secondly, although originally  
formulated in anticipation of a right-of-way agreement, by using them in the 1873 negotiations,  
the Ojibway were indicating they did not think that the consequences of giving up exclusive  
 
Part 10. Findings of Fact Part I  
156  
control over the whole territory/sharing the use of the whole territory (plus making some other  
concessions in the vicinity of the Dawson Route and CPR) would be much different from a right  
of way in respect of the Dawson Route.  
 My conclusion is consistent with Lovisek's suggestion that the Ojibway understood and  
agreed that there could be negative impacts along the rights of way. They anticipated that away  
from them, sharing their lands would not involve significant interference with their Harvesting  
Rights.  
 I find that by 1870, Pither had an awareness of the scale of the Ojibway demands.  
Archibald wrote to the Secretary of State on April 7, 1871 (Ex. 4, pp 158 and 159): "Mr. Pither  
seems to think they would give up their rights to the whole country for much the same price they  
would ask for the right-of-way."  
 I find that Pither's statement reflects that the Ojibway had communicated the 1869  
Demands to him. That is why he said he thought the Ojibway would not demand much more for  
a full cession.  
 Counsel for the Plaintiffs may be correct in submitting that although Canada had earlier  
received the 1869 Demands, it had not taken them seriously but had viewed them as outrageous.  
On October 2, 1873, when they were presented [or re-presented], the 1869 Demands were  
viewed by many observers as ridiculous. The Manitoba Free Press described their reception:  
"Most persons smiled as the Governor read it out, for which levity a severe rebuke was  
administered by the Indian who presented the paper."  
 The Shorthand Reporter's account of the 1873 negotiations also contained an elliptical  
reference to their reception. A Chief said, "[w]e would not want that anyone should smile at our  
affairs."  
 I have found, based in part on Morris' comment in his October 14, 1873 report that the  
Chiefs' counter-demand made on October 2, 1873 (the 1869 Demands) were the demands they  
have urged since 1869. On Lovisek's evidence, on Simpson's reference to those Demands in his  
letter to Howe dated August 19, 1870 (April 7, 1871; Ex. 1, Vol. 5, Tab 120 and Ex. 45, p. 299),  
the 1869 Demands were likely not new to the Canadian government in 1873.  
Findings re The Harvesting Clause  
The Ojibway Understanding of the Harvesting Clause at the Time the Treaty was Signed  
 To the Ojibway, availability of resources to sustain the collective was paramount. That  
was their primary concern.  
 I accept that during the Treaty negotiations, the Commissioners said nothing to explain  
that Euro-Canadian concepts of land ownership were dramatically different from Ojibway  
concepts of territoriality.  
   
Part 10. Findings of Fact Part I  
157  
 The major difference in Lovisek's and Chartrand's evidence on the Ojibway  
understanding and intention with respect to post-Treaty use of lands if they did agree to enter  
into a treaty was as follows: Lovisek opined on October 23, 2009 that away from the Dawson  
Route and CPR right of way, the Ojibway did not agree to any significant interference with their  
Harvesting Rights or to any decrease in the geographical area where they would be able to hunt.  
Chartrand said (December 15, 2009) that they understood that taking up of lands by Euro-  
Canadians would require them to make geographic accommodations, i.e., not to pursue  
traditional harvesting activities on those lands once they were occupied.  
 While Chartrand opined (January 14, 2010 at p. 87) that the Ojibway understood that  
Euro-Canadian activity could cause geographic limits on their hunting areas, he conceded there  
is no specific evidence from the negotiations that they had any precise understanding of the  
extent of such limits. He said on January 25, 2010 at p. 102:  
A. …My understanding of what the Ojibway understood under the treaty was that there would be a  
process of accommodation for a Euro-Canadian presence in the treaty territory, accommodation  
involving necessarily shifts in certain areas in some instances where harvesting perhaps were  
conducted…  
 I accept Lovisek's evidence, largely supported by Chartrand's by the end of his cross-  
examination, that all parties expected that in the Treaty 3 environment, the anticipated uses of the  
Ojibway and of the Euro-Canadians would largely be compatible post-Treaty.  
 I accept Lovisek's evidence on October 23, 2009 that the Ojibway expected resource use  
and sharing of benefits therefrom was to be reciprocal, at pp. 133-135 as follows:  
Q. Lending and borrowing of resources, that's something you refer to in a number of places in your  
report. What do you mean by that?  
A. That's essentially an Ojibway concept, Chief Sa-katche-way refers to it specifically. I described it  
as sharing. This is a characteristic of Ojibway culture which I earlier also described it in its more  
technical format as reciprocal altruism, and what it means essentially is that the Ojibway were willing  
to share their resources and certainly parts of their territory, as long as they also had reciprocal access  
to the benefits of whatever was being introduced by outsiders.  
Q. Outside of the corridor, the railway corridor and the Dawson Route corridor, what kind of sharing  
did they have in mind, in your view?  
A. Well, we have historical records which describe some of that understanding. The Ojibway used to  
fish for subsistence fishing as well some trade purposes in the lakes and the rivers, especially Lake of  
the Woods. They had no objection to Euro-Canadians fishing in the same waters, but they did object  
when commercial fishing was introduced and was affecting their own subsistence and commercial  
fishing. So this is an aspect of what sharing would be.  
 I accept Lovisek's emphasis on the Ojibway expectation that if they agreed to give up  
exclusive use, they would be able to benefit from sharing in Euro-Canadian activities and that the  
extent of those benefits would affect their degree of tolerance/perception of Euro-Canadian  
interference, i.e., whether they perceived the activities to constitute significant interference with  
their harvesting.  
 Although he did not say directly that the Ojibway expected "to share" use of land and  
resources after the Treaty, Chartrand gave answers in cross-examination in effect endorsing  
Lovisek's view. Chartrand said in cross-examination that the Ojibway did not consider  
Part 10. Findings of Fact Part I  
158  
themselves to have exclusive proprietary rights to game and fish in a Western sense. (January 9,  
2010 at p. 58.) I have already outlined the basis and extent of the sharing anticipated by the  
Ojibway and Chartrand's opinion that there was room to share with Euro-Canadians, given that  
the Ojibway harvested only to meet their needs and not to the maximum extent of the resources.  
 Chartrand agreed on January 25, 2010 the Ojibway were not buying into/accepting a  
future involving progressive extinguishment of their harvesting rights. He gave the following  
evidence at pp. 12-13:  
A…. the Ojibway have absolutely no intention of abandoning their culture wholesale. If they want  
social and cultural change to happen, to the extent that they want that, they're expecting to be in  
control of that process.  
Q. But they're not buying into a process of progressive, if you wish, extinguishment by slices at  
the behest of the government of their way of life?  
A. No.  
[Emphasis added.]  
 Chartrand agreed with Lovisek that the Ojibway perceived that they would be able to  
derive benefits from Euro-Canadian activities.  
 Chartrand's cross-examination on January 26, 2010 contains the following at pp. 77-79:  
Q. … But even in terms of the discussions about cattle and waters, I mean, it's framed not in terms of  
we're giving you the waters, we're giving you the lands or anything like that, it's framed in terms of  
borrowing and lending, isn't it?  
A. Yes. Which is where I see the allegory coming in.  
Q. Well, that's not suggesting a giving up of their waters, for example, is it?  
A. The chief is alluding in allegory to a certain exchange of access to resources, without, I think -- I  
think it's a basic mistake to take the terminology of borrowing cattle or lending as being literal terms.  
The Ojibway understand that this potential treaty is going to be a permanent agreement that will last.  
Q. Right. But in terms of the subject matter of the agreement, the resources, they're not using  
language that, for example, says we give you our waters, we give you our land, and in exchange, you  
give us cattle and money?  
A. The chief doesn't say that here. He's alluding to a post -- a potential post-treaty future in which  
both the Ojibway and Euro-Canadians will benefit.  
Q. Right. And talks about, quite literally, albeit using allegorical terms, a cross-cultural exchange of  
knowledge through the lending of children?  
A. Yes, and again I believe that that is very much an allegorical reference.  
[Emphasis added.]  
 By the end of the evidence, there was consensus between Lovisek and Chartrand on this  
issue.  
 I find, based on the evidence of Lovisek (October 23, 2009 at p. 140) and Chartrand  
(January 21, 2010 at pp 119-120), the Ojibway knew and agreed they were giving up exclusive  
use of their lands and would be sharing the resources on them with the Euro-Canadians after the  
Treaty was signed. They expected Euro-Canadian and Ojibway uses to be compatible.  
 Away from the Dawson Route and CPR areas, I accept Lovisek's evidence and I find the  
Ojibway did not accept that they would be required to curtail or change their traditional  
subsistence harvesting and trading activities. They did not understand that there would be  
Part 10. Findings of Fact Part I  
159  
significant limitations on their Harvesting Rights. I do not infer that they understood that as lands  
away from the Dawson Route and CPR were developed as mutually anticipated, there would be  
increasing and cumulative negative impacts on their way of life, which in the words of counsel  
for the Plaintiffs, would result in "extinguishment by slices."  
 The Ojibway understood that they were agreeing to allow some Euro-Canadian  
occupancy (Lovisek, October 23, 2009 at p. 88) and they would be sharing the use of the lands  
with and benefitting from the use of the lands by the Euro-Canadians (Lovisek, November 18,  
2009 at p. 144.) They expected, for example, to share in the benefits of anticipated timber  
operations, including receiving wages for labour. (Lovisek, October 23, 2009, p. 140.)  
 Lovisek gave evidence the Ojibway understood they were being promised the use of  
lands they were accustomed to using. I accept her evidence that the Ojibway understood not  
simply that they could forever hunt "somewhere" in the Treaty 3 territory; the promise was with  
respect to lands about which they had some knowledge, "not just so long as there's somewhere  
they can go in Treaty 3" (Lovisek, November 23, 2009 at pp. 90-91.)  
 I note that even Von Gernet, who had opined that it was "incomprehensible" that the  
Ojibway did not understand they were giving up their lands, conceded that both parties  
recognized that the Ojibway would, at the very least, be able to hunt and fish, harvest wild rice or  
otherwise engage in the usual activities on most of the lands being ceded, but with the caveat that  
at least some of those lands would be subject to immediate "taking up" for settlement or other  
purposes.  
 Although Von Gernet did not identify which lands he had in mind, I find that both he and  
Chartrand were contemplating possible agricultural settlement of lands in the Rainy River area,  
the only lands in the Treaty 3 area known at the time to have agricultural potential. Von Gernet  
conceded the Ojibway understood there would be lots of land on which they could engage in  
their usual activities and that their reserves would include and protect their sturgeon fishing and  
gardening locations primarily located in the Rainy River area. He postulated that their reserves  
would also serve as refuges "where they could engage in a new mode of subsistence in the event  
that their foraging lifestyle became unfeasible." With respect to the anticipated agricultural  
potential of the balance of the Treaty 3 lands, Von Gernet said that while the Ojibway hoped  
their traditional lifestyle would continue in perpetuity, "any prudent Ojibway leader" would have  
understood that things would not stay the same forever. In other words, he was suggesting in  
effect that they should have understood, based on their knowledge of the raison d'être of treaties  
in general, that after the Treaty was signed, their Harvesting Rights could be progressively  
extinguished (Von Gernet, December 11, 2009.)  
 I reject that evidence of Von Gernet's because of the specific evidence relating to  
Ojibway knowledge here.  
Part 10. Findings of Fact Part I  
160  
Finding re Understanding of Canada re Likely Compatibility of Traditional Harvesting and  
Anticipated Euro-Canadian Land Uses  
 Chartrand said in cross-examination on January 25, 2010 at pp 106-7, "Morris was  
alluding to a situation after the treaty in which lands outside reserves would not be immediately  
taken up, at least in his mind, to -- on a scale that would significantly impact the Ojibway way of  
life."  
 I find that after the Treaty was completed, both Canada and the Ojibway expected  
traditional harvesting activities to continue on Treaty 3 lands away from the Dawson Route and  
CPR. Chartrand gave evidence similar to Lovisek's that they understood that farming and  
agricultural settlement would happen along the Rainy River Valley. Their fishing and gardening  
locations would be protected, i.e., preserved for their exclusive use, in the vicinity of the Dawson  
Route. Ojibway hunting usually took place in the interior and away from the Dawson Route.  
 I find the Commissioners anticipated compatibility of Euro-Canadian uses with Ojibway  
Harvesting away from the Dawson Route.  
Finding re Were the Harvesting Promises Broadened on October 3, 1873/Did the Ojibway  
Accept Morris' October 1, 1873 Proposal? Had the Commissioners Amended it by October  
3, 1873?  
 I have outlined Chartrand's evidence of January 21, 2010 at pp. 86-88 in which, in  
interpreting the Harvesting promise, he focused "on the direct explanation given by Morris on  
October 1." He maintained traditional harvesting was not discussed on October 3. The Ojibway  
did not seek clarification about Morris' October 1 proposal. "If the Ojibway presented no  
concerns or questions regarding the principle of taking up … Morris would have had no  
compelling reason to explain the provision in further detail."  
 I have outlined Lovisek's opinion that the Ojibway did not accept Morris' October 1  
proposal about hunting and fishing until the lands were wanted, and that there was a further  
discussion of Harvesting Rights on October 3 when a Chief demanded "the privilege of traveling  
through the country" and Nolin recorded that "the Indians will be free as by the past for their  
hunting and wild rice harvest."  
 I accept Dr. Nichols' interpretation of the meaning of "hunting and wild rice harvest" to  
mean "to make a living from resources," to which Lovisek referred, as set out in paragraph 528  
above.  
 I have earlier referred to the Chief's demand on October 3, 1873, heard by McKay in  
Ojibwe but translated into English as "we must have the privilege of travelling about the  
country." I have found that McKay understood that demand to relate to their ability after the  
Treaty to be able to make a living as in the past on all of the Treaty 3 lands. I find McKay said to  
the Ojibway in Ojibwe, "the Indians will be free as by the past for their wild rice harvest and  
hunting," that Nolin recorded McKay's words verbatim in his October 3 note and then McKay  
turned to the Commissioners and said in English, "Of course I told them so."  
   
Part 10. Findings of Fact Part I  
161  
 I have found the Ojibway were seeking formal confirmation in the presence of the  
Commissioners that the Commissioners were acceding to their demand that their traditional  
harvesting would continue as in the past.  
 Chartrand said (January 20, 2010 at p. 24) McKay was at the negotiations to act as a  
cultural intermediary on behalf of the Government, presumably to provide information to the  
Ojibway. McKay's role was as a facilitator. He continues at pp. 25-26: "[McKay] was there to  
explain, explain concepts, possibly explain practical consequences of provisions of the treaty,  
possibly explain what he understood as being Indian policy. … we know that McKay discussed  
the question of travel over lands."  
 I have concluded that after the October 2 negotiations about which the Shorthand  
Reporter had reported in the Manitoban ("It was extremely doubtful whether an agreement could  
be come to or not"), the Commissioners had a further conference and decided to sweeten their  
offer. McKay was sent to attend the Ojibway Council and participated in discussions. When the  
Council resumed on October 3, the Ojibway came to the Council and made a demand in the  
presence of the Commissioners that they must be able to continue their harvesting. McKay  
affirmed in the presence of the Commissioners that the Indians will be "free as by the past" for  
their "hunting and wild rice harvest."  
 I have concluded that McKay, a member of Morris' entourage, would not have made the  
promise in the Commissioners' presence on October 3 unless they had expressly authorized him  
to do so.  
 I conclude, based on the sequence of questions and answers mentioned earlier, that on  
October 3, Nolin was not simply remembering Morris' October 1 statement [as posited by  
Chartrand] but was recording a discussion about continuing Harvesting Rights that occurred  
during the final negotiations on October 3.  
 I accept Lovisek's evidence that the Ojibway Chief's statement translated into English as  
"we must be free to travel through the country," related to a demand to be able to continue to  
make a living from their traditional harvesting. I find based on Dawson's notes that the reference  
to "where vacant" was not included in the Chief's demand. There had been no reference to  
"vacant" lands at any earlier point in the negotiations.  
 I have rejected Chartrand's evidence that there was only one mention of Harvesting  
during the negotiations: on October 1, when Morris proposed that the Ojibway would be able to  
hunt and fish on their lands until the lands were wanted. However, that was also the only  
mention of a limitation on Harvesting Rights.  
 I have rejected Chartrand's assumption that Nolin was recording on October 3 what  
Morris had said on October 1. I have found that the Commissioners knew the Ojibway perceived  
they were being promised perpetual Harvesting Rights as in the past throughout their territory,  
and that this was a major consideration for entering into the Treaty.  
Part 10. Findings of Fact Part I  
162  
 In rejecting Chartrand's evidence that on October 3, Nolin was referring to Morris'  
statement on October 1 that until the lands were wanted, the Ojibway could hunt and fish on  
them, I have relied on the following:  
1. The sequence of all the contemporaneous notes suggests that on October 3, a Chief  
said "we must have the privilege of traveling about the country." I have found there  
was a discussion about it at that time.  
2. I accept that there is a translation issue with respect to travelling about the country. I  
accept Lovisek's evidence that the Chief's statement related to pursuing their  
traditional harvesting/way of life. I note that Chartrand agreed that travelling included  
harvesting.  
3. I find McKay understood the demand made in Ojibwe to relate to traditional  
harvesting. He said to the Ojibway, "The Indians will be free as by the past for your  
hunting and wild rice harvest."  
4. Nolin recorded the exchange. "The Indians will be free as by the past for their hunting  
and wild rice harvest." McKay then said in English to the Commissioners, "Of course  
I told them so."  
5. Chartrand agreed in cross-examination that if "Indians will be free as by the past for  
their hunting and wild rice harvest" was what McKay said in Ojibwe to the Ojibway  
before he turned to the Commissioners and said, "Of course I told them so," in  
English, then McKay made no reference to any limitation of their Harvesting Rights  
(January 25, 2010 at pp. 110-141.)  
6. Dawson made it clear in his post-Treaty correspondence that the Commissioners  
induced the Indians to enter into the Treaty by telling them that they would "forever"  
have their fishing [i.e., Harvesting] rights. Dawson's recollection is consistent with  
the way Nolin recorded the exchange. Although many of Dawson's comments were  
directed to fishing rights (given the focus of the concern at the time), he did refer to  
hunting and fishing, for instance, in his April 25, 1895 letter to Reed. I accept  
Lovisek's evidence (October 22, 2009 at p. 117) that Dawson would not have drawn  
any distinction between fishing and Harvesting Rights. The Harvesting Clause related  
to both. As I have already found, "hunting and wild rice harvest" referred to making a  
living from all forms of harvesting. In his subsequent correspondence, Dawson made  
no reference to the Harvesting Rights being limited by "taking up" of lands,  
indicating that the focus of the Commissioners' discussion in 1873 was about  
Harvesting Rights and not about ownership rights or under what circumstances  
Harvesting Rights could be limited or by whom.  
7. Morris had a copy of the Nolin Notes. He edited and attached them to his Official  
Report of the Treaty without comment, suggesting he did not disagree with their  
content.  
Part 10. Findings of Fact Part I  
163  
8. This interpretation is consistent with the Commissioners' October 3 offer of perpetual  
provision of ammunition and twine for hunting and fishing purposes.  
 Chartrand assumed that Morris had not changed his position between October 1 and  
October 3. Because of that assumption, he also assumed that McKay would not say, "Of course I  
told them so" in relation to a question relating to continuing Harvesting Rights. (He did say  
McKay was confirming something he had already discussed with them, although he disagreed as  
to what that was.)  
 I have considered the submission of counsel for Ontario based on Chartrand's evidence  
that McKay could not have believed the Ojibway would be free to pursue their harvesting  
without limitation after the Treaty was signed because he had heard Morris' more limited  
promise on October 1. A member of Morris's entourage, Mckay would not have failed to convey  
the limitation Morris had expressed on October 1. It would have been "very strange" if McKay  
had disregarded Morris' October 1 statement and said, "Of course I told them so."  
 I accept that it is unlikely that McKay would have flouted Morris' instructions in his  
presence. It is more likely that McKay was doing what Morris had instructed him to do. I find  
McKay's statement on October 3, "Of course I told them so," is indicative that by October 3,  
Morris and the other Commissioners had decided to broaden their previous more limited  
proposal to accede to the Ojibway demand for continuing Harvesting Rights as in the past, as  
Dawson said, to "induce" the Ojibway to enter into the Treaty.  
 The point "that they would have forever have the fisheries…was strongly insisted upon  
and it had great weight with the Indians who for some years previously had persistently refused  
to enter into any treaty" (Dawson's letter, May 28, 1888, Ex. 1, tab 552.)  
 I find the Commissioners knew the Rainy River Ojibway Chiefs were indifferent about  
entering into the Treaty and it was unlikely they would have accepted Morris' October 1 terms  
even if the Treaty 3 Ojibway away from the Route had agreed to do so. The Rainy River Chiefs  
understood they were key players in the negotiations because they controlled the Dawson Route  
and it was their agreement that was needed.  
 At the Council preceding resumption of the formal negotiations, the Chiefs in the  
presence of McKay and Nolin had "a most exhaustive discussion." I find they resolved to "accept  
the Governor's terms with some modifications." They resolved to make it clear they were  
demanding continuing Harvesting Rights. On October 3, in the presence of the Commissioners,  
the Chiefs sought and received confirmation that their Harvesting Rights would continue as in  
the past.  
 I find that by the time the Treaty was signed on October 3, 1873, McKay and the  
Commissioners understood the Ojibway were insisting on a promise of perpetual Harvesting  
Rights and understood that that is what they had been given.  
Part 10. Findings of Fact Part I  
164  
 After considering all the matters mentioned elsewhere in these Reasons, I find, as  
Dawson said, the representation was made that the Ojibway would "forever" have their  
traditional Harvesting Rights as in the past.  
 In all the circumstances here, given the obstinate insistent nature of the Ojibway and their  
focus on resource harvesting, I find the Commissioners saw the extraordinary promise as  
necessary to achieve their pressing goal of completing the Treaty. They understood Canada  
needed to secure the Dawson Route and to get the CPR built through the Treaty 3 territory by  
December 31, 1876. They saw the promise as being feasible, given their perceptions about the  
nature of the Treaty 3 territory and the compatibility foreseen between the Euro-Canadian uses  
they anticipated and Harvesting Rights. Promises to protect hunting rights away from the area of  
the Dawson Route were seen as being feasible because Canada and the Ojibway knew that  
hunting did not generally occur close to the water. Sturgeon fishing and gardening areas could be  
protected. They did not anticipate Euro-Canadian mining or logging activities that would  
significantly affect Ojibway traditional harvesting. In short, because the Commissioners foresaw  
compatibility between Euro-Canadian and Ojibway uses of land, they believed they could make  
the promises on which the Ojibway were insisting and at the same time achieve Canada's  
pressing national objectives.  
 I accept the evidence of Lovisek (November 23, 2009 at p. 82) that the October 1  
proposal was not incorporated into the Treaty. The Ojibway did not agree to losing their hunting  
rights whenever land was wanted. Apart from certain lands in the Rainy River Valley area where  
they did not traditionally hunt, I find they did not accept that they would be required to curtail  
their traditional subsistence harvesting and trading activities in their territory. I have not inferred  
that they understood and accepted that as lands away from the right-of-way were brought into  
use by Euro-Canadians, there would be increasing and cumulative negative impacts on their  
harvesting (January 21, 2010 at pp 119-120.) Had they perceived that a treaty would bring  
serious detriments to or seriously interfere with their way of life, they would have refused to  
sign.  
 I find that on October 3, the Commissioners understood that the Ojibway, as a  
precondition of signing the Treaty were demanding post-Treaty Harvesting Rights as in the past  
away from the Dawson Route and the CPR right-of-way [i.e., harvesting without significant  
interference.] When McKay said, "Of course I told them so," the Commissioners were aware that  
the Ojibway understood the Commissioners were accepting their condition. When Nolin wrote  
"the Indians will be free as by the past for your hunting and wild rice harvest," he was translating  
what McKay said to them in Ojibwe and was accurately recording the substance of the  
discussion taking place about Harvesting Rights on October 3 with the knowledge and on the  
instructions of the Commissioners.  
 I find that after the discussion recorded in the Nolin Note on October 3, the Ojibway  
understood that the Commissioners were promising them that they would be able to continue to  
make a living from harvesting as before (Lovisek, November 18, 2009 at p. 136) The  
Commissioners understood that that is what they were promising.  
Part 10. Findings of Fact Part I  
165  
 I find that the Commissioners distinctly held out to the Ojibway that they would have  
their ordinary avocations of hunting and fishing throughout the tract as in the past. I have based  
that conclusion in part on the evidence of Lovisek, portions of Chartrand's evidence, McKay's  
statement to the Commissioners that "of course I told them so," Nolin's note and Dawson's post-  
Treaty recollections.  
Why Did Morris Mention the Dominion in the Harvesting Clause?  
 I accept Saywell's evidence (April 6, 2009 at pp 60-67, 78) that in his role as Dominion-  
appointed Treaty Commissioner, and as a lawyer and ex-judge, Morris would have been  
expected to draft a significant legal document like Treaty 3 in a clear, precise manner and to use  
legal terms that would achieve Canada's desired ends within the bounds of Canada's jurisdiction.  
 I find that Morris, "a trained Constitutional lawyer," whom all parties agreed was aware  
of the Boundary Dispute, specifically considered its likely potential negative effects on the  
Ojibway were Canada to lose and Ontario held to be the owner of the Disputed Territory. In  
mentioning Canada, Morris was not focusing on ownership rights. Morris clearly understood that  
Canada could lose the Boundary Dispute, in which event it would no longer own the Disputed  
Territory.  
 I find Morris wanted to protect Canada's wards, the Indians. He deliberately mentioned  
the Dominion in the Harvesting Clause and to use the words "taking up by Canada" in part so  
that if Canada lost the Boundary Dispute, it would be able, using its s. 91(24) jurisdiction and the  
Treaty, to restrict Ontario's interference with Ojibway Harvesting Rights, if it were necessary.  
 If he had not taken steps to protect the Ojibway, he and the other Commissioners  
perceived that Canada's strategic interests could have been severely compromised, given the  
perception of all the Commissioners that unhappy Treaty 3 Ojibway could interfere with the  
building of the CPR and the safety of the Dawson Route.  
 I have earlier reviewed the evidence relating to the timing of the appointment of the  
Commissioners in relation to the various Orders in Council and the differing instructions for  
treaties in the Northwest Territories and for Treaty 3.  
 I reject Chartrand's evidence (January 22, 2010 at p. 30) based on his reliance on the June  
16, 1873 Order in Council that the Commissioners were simply assuming that Canada would  
always be the beneficial owner of the Treaty 3 lands because they would always be in the  
Northwest Territories under the administration of Canada. It appears that the June 16, 1873  
Order in Council on which Chartrand relied may not in fact have been operative to appoint the  
1873 Commissioners specifically to negotiate Treaty 3. Different directions existed with respect  
to treaties in the Northwest Territories and Treaty 3. In any event, I find Morris would not have  
relied on an Order in Council to inform himself about the ownership of the lands. He was aware  
of the potential implications of the Boundary Dispute with respect to ownership.  
 More importantly, apart from any Order in Council, I have found that Morris clearly  
understood that Canada's s. 91(24) obligations and its strategic interest in meeting those  
 
Part 10. Findings of Fact Part I  
166  
obligations were not limited to the Northwest Territories. Canada's responsibilities to Indians  
extended to all of Canada, including lands located within s. 109 provinces.  
 By mentioning the reservation of Harvesting Rights to the Indians, he was making it clear  
that Ontario's proprietary rights under s. 109 would be subject to Indian Harvesting Rights  
reserved to the Ojibway under the Treaty, an interest other than an interest of the province in the  
same under s. 109.  
 I have found Morris and the other Commissioners were not indifferent about which level  
of government would be able to affect/limit Treaty Rights post-Treaty. Had they been, and had it  
been their intention to allow any government or whichever government owned the land to limit  
the rights of the Ojibway, it would have been easy for Morris to achieve that end by using words  
that made that intention clear. He could have used proprietary language such as was contained in  
the precedent provided, the Robinson Treaties.  
 He could have made it clear in the Treaty that an owner could authorize uses inconsistent  
with Harvesting Rights. Had he done so, after Ontario was held to be the owner, Canada would  
not have been able to do anything to protect harvesting on those lands once the use was  
authorized. He chose instead to word the Harvesting Clause in a way that would protect Indian  
interests (and indirectly Canadian strategic interests) regardless of whether Canada won or lost  
the Boundary Dispute. By referring to the Dominion in the Harvesting Clause in the Treaty,  
Morris made it clear that if Ontario purported to "take up"/authorize land uses that would  
significantly interfere with Harvesting Rights, an authorization from Canada would be needed  
under the Treaty.  
 In part because none of Von Gernet, Milloy or Chartrand is an expert qualified to  
comment on the legal and Constitutional considerations motivating Morris as he drafted the  
Treaty, I reject their evidence that Morris' knowledge of the existence of the Boundary Dispute  
was irrelevant to his choice of words – his mention of Canada in the Harvesting Clause.  
 I have found that knowing of the existence of the Boundary Dispute and the possibility  
that Canada would be found not to be the owner of lands in the Disputed Territory, Morris had  
good legal, Constitutional, political and strategic reasons for specifically mentioning Canada in  
the Harvesting Clause.  
 Morris anticipated, for reasons detailed elsewhere, that if Canada won the Boundary  
Dispute, it would have the ability to manage threats posed to Harvesting Rights by attempts to  
develop lands in a manner that would be incompatible with Harvesting Rights. If Canada lost the  
Boundary Dispute, he understood that while the federal government would not be able to patent  
Ontario's land or authorize forestry operations or forestry uses on provincial Crown lands, his  
mention in the Harvesting Clause of authorization of taking up by the Dominion meant that land  
uses threatening interference with Treaty Harvesting Rights would require two authorizations:  
firstly from Ontario under s. 109 giving the requisite proprietary rights to make use of the lands  
and secondly from Canada under the Treaty and s. 91(24), authorizing such interference.  
Part 10. Findings of Fact Part I  
167  
 I find Morris did intend that Canada, in the event it lost the Boundary Dispute, would be  
able to exercise its ongoing jurisdiction over Indians and Treaty Harvesting Rights even within  
Ontario. Morris understood there would be intersecting jurisdictions. He knew if Ontario owned  
the land, two levels of government would be involved if Ontario were purporting to significantly  
interfere with Treaty Harvesting Rights. In protecting those Rights, he understood he was  
exercising Canada's valid s. 91(24) jurisdiction. Canada's ability to affect provincial proprietary  
rights when exercising a valid federal jurisdiction was accepted in 1873 by all the political  
players, even the provincial autonomists. Chancellor Boyd's reasoning in Seybold illustrates that  
involvement of more than one government in authorizing land use is not a new concept.  
 I have found that Morris expressly reserved Harvesting Rights to the Ojibway under the  
Treaty, an interest he understood to be a pre-existing interest under s. 109.  
 I find that, given his knowledge of the Constitution, Morris was intending to specify that  
if Canada lost the Boundary Dispute, Ontario's s. 109 interest would be burdened by and subject  
to the pre-existing Harvesting Rights reserved to the Treaty 3 Ojibway guaranteed under the  
Treaty. In reserving Treaty Harvesting Rights to the Ojibway, Morris understood that Courts  
would interpret the Harvesting Clause to mean that Ontario was taking its s. 109 rights subject to  
Treaty Harvesting Rights.  
 Morris' and Canada's understanding and intent regarding his use of Constitutional and  
legal concepts is covered in more detail in the section of these Reasons headed "Answer to  
Question One – Is the Harvesting Clause as Written Constitutional?"  
Did the Ojibway Understand and Accept that Canada Could Interfere with Their Treaty  
Harvesting Rights?  
 The issue here is whether McKay, when he explained the Treaty in Ojibwe, as reported  
by Morris in his October 14, 1873 report, mentioned or the Ojibway understood from other  
information provided, that the Dominion Government could limit Harvesting Rights.  
 I have referred earlier to McKay's background and experience and important "cultural  
intermediary" role, both before and during the 1873 negotiations.  
 In his October 14 report Morris wrote, "After a reading of the Treaty, and an explanation  
of it in Indian by the Hon. James McKay, it was signed."  
 The evidence is unclear as to how McKay read and explained the Treaty in Ojibwe just  
before it was signed. No notes prepared by McKay or anyone else are extant to shed light on  
whether he read the Treaty in English or how he explained it in Ojibwe. It is impossible to know  
with certainty whether he attempted to translate verbatim the words of the formal Treaty.  
 Counsel for Ontario submitted that it would have been impossible for McKay to  
accurately interpret the Treaty word-for-word. He submitted that McKay did not translate or  
explain the harvesting promise in its entirety. His explanation of the harvesting promise was  
likely similar to Morris' statement on October 1. If McKay did refer to the harvesting promise, he  
 
Part 10. Findings of Fact Part I  
168  
likely referred simply to "the government," which the Ojibway would not have understood to be  
a federal government distinct from a provincial government. When he was explaining the  
Harvesting Clause he did not specifically refer to the Dominion Government.  
 For reasons already detailed, I reject the submission that on October 3, in explaining  
Treaty Harvesting Rights, McKay referred to Morris' statement on October 1.  
 I reject Chartrand's evidence that McKay likely referred to Morris' October 1 statement,  
as I have held that by October 3, it had been superseded.  
 There is largely agreement among the experts that McKay must not have specifically  
mentioned regulation of Ojibway harvesting by the Dominion Government or anyone else.  
 Chartrand's report, Ex. 60, contains the following:  
At p. 123:  
None of the extant Treaty 3 negotiation records document the Treaty Commissioners giving verbal  
explanations to the effect that hunting and fishing rights were to become subject to possible  
government regulation. The subject of regulation of Aboriginal harvesting activity, by the  
Government of the Dominion of Canada or by any other government, does not appear to have been  
discussed prior to the signing of Treaty 3.  
At pp. 124-125:  
'Nolin's Notes' and the "Paypom Treaty" record the harvesting rights promise as: "The Indians will be  
free as by the past for their hunting and rice harvest." The wording in these latter records suggest that  
either the oral promise or oral understanding of harvesting rights actually precluded regulation of  
these activities, by government or by any other body external to Ojibway society.  
In a negotiation context where the Ojibway understood that some of the lands outside reserves would  
become taken by Euro-Canadians (thereby likely affecting locations where traditional harvesting  
activities could be conducted), the idea that harvesting practices in themselves might become subject  
to regulation, or partial control by outside parties or institutions, would have proved a delicate and  
controversial matter. Mention of regulation of harvesting during the negotiations would have  
generated questions and expressions of concern by Ojibway leaders and spokespersons, and required  
further discussion and explanation by the Treaty Commissioners. None of the Treaty 3 negotiation  
records allude to any such discussions.  
Since the subject of regulation does not appear to have been introduced during negotiations, its  
sudden mention by James McKay in his reading of the treaty should have generated questions.  
However, as the only documentary source on the treaty negotiations referring to McKay's  
interpretations, Alexander Morris' October 14, 1873 treaty report does not detail any reference to  
Ojibway leaders or spokespersons asking further clarification, or raising concerns regarding the  
Ojibway language reading of the Treaty. The report suggests that McKay's explanations were not  
given in response to questions or objections. As no other documentary source even alludes to this  
event, McKay's reading and explanation appears to have been accepted as straightforward by the  
Ojibway.  
…
The apparent lack of reaction to the inclusion of the regulation of harvesting activity, and to the  
omission of several matters agreed upon orally, is even more puzzling …the Ojibway understood the  
importance of written documents to Euro-Canadian officials. … a number of the issues agreed upon  
orally had been discussed earlier on October 3rd, 1873, merely hours prior to the reading of the treaty  
Part 10. Findings of Fact Part I  
169  
text. The points could not have been forgotten in this short time, especially in light of the presence of  
an Ojibway oral narrative recorder.  
Since James McKay's Ojibway language address was not recorded (in writing) and no oral tradition  
narrative of the address appears to have survived, the extent to which he presented a complete and  
accurate account of the contents of the Treaty 3 text remains an unresolved historical issue. The  
historical questions and problems identified by scholars relating to the lack of Ojibway reaction to the  
differences the Treaty 3 text content relative to their understanding of the oral treaty agreement  
appears unresolvable. These questions and problems are sufficiently marked, to put into question the  
extent to which the written text of Treaty 3 can be used as a basis on which to describe or reconstruct  
an accurate and complete understanding of the Treaty 3 agreement by the Ojibway signatories.  
Simply put, there are strong historical and ethnohistorical grounds on which to posit that the English  
language contents and provisions of the text of Treaty 3, do not necessarily reflect the exact nature  
and full scope of the Ojibway understanding of the oral treaty agreement reached with Alexander  
Morris. As a source of historical information on how the Ojibway conceived their treaty agreement  
with the Crown, the text of Treaty 3 must be used with caution.  
[Emphasis added; references omitted.  
 Lovisek's report (Ex. 28) contains the following:  
At pp. 182-3:  
Both the Treaty Commissioners and the Saulteaux understood and agreed that hunting and fishing  
rights were reserved over their territory. There are no references in the records which were written in  
colloquial speech by Dawson or Nolin, or in the Shorthand Reporter's account which describe the  
application of regulations to hunting and fishing or which limited hunting and fishing rights…  
The Saulteaux at the time of Treaty 3 had no experience with Euro-Canadians who claimed authority  
to regulate their hunting and fishing. Since the Ojibwe language has a word for regulation,  
inâkonigewin, had the word been used by Lieutenant-Governor Morris or the interpreters and  
understood by the Saulteaux, it would likely have been reported in the various Treaty documents. The  
Ojibwe language also has a word for 'taking up' in the sense of: "I take it from him" which translates  
to nin mamawa.  
The historical records indicate that the taking-up clause was not considered by Morris to be of  
sufficient importance to warrant discussion either with Ottawa, or the Saulteaux. …  
…
…[T]here is no evidence from the historical record that Lieutenant-Governor Morris had the articles  
of the Morris Document translated literally and read to the Saulteaux by McKay or explained. It is  
probable that McKay in reading the final terms of the treaty before it was prepared 'in an hour', relied  
upon the shorter and easier to translate agreement, such as the Nolin Notes.  
At pp. 186-187:  
There is no evidence in the historical records of the Treaty 3 negotiations that the full context of the  
"taking-up" clause as drafted in the Morris Document was discussed, explained, consented to by the  
Saulteaux or recorded in the Dawson Notes, Nolin Notes, Paypom Treaty, or the Shorthand  
Reporter's account. That the Saulteaux were not informed and did not consent to the "taking-up"  
clause is reflected in the Shorthand Reporter's Account, the Nolin Notes, the Paypom Treaty, Dawson  
Notes, and subsequent information provided by Simon J. Dawson in 1888 and 1895 (as noted above).  
The treaty of record comprises the Nolin Notes, Paypom Treaty, Dawson Notes, the Shorthand  
Reporter's Account and the Morris Document, and not the Morris Document alone. When these  
documents are considered in conjunction with the statements made by Morris in the subsequent  
Part 10. Findings of Fact Part I  
170  
numbered treaties and by the interpretations of other Commissioners who negotiated the numbered  
treaties, it is apparent that the "taking-up" clause was not explained in the form it appears in the  
Morris template treaty. There is also no evidence in the treaty records that the Saulteaux would have  
consented to any regulation of their hunting and fishing treaty rights, had the issue of regulation been  
introduced during negotiations. The "taking-up" clause was not mutually agreed upon by parties to  
Treaty 3.  
[Emphasis added, footnotes omitted.]  
 I find that McKay did not translate the Treaty word by word into Ojibwe. Because he did  
not refer specifically to limiting of Harvesting Rights by regulation by Canada, he therefore did  
not refer to limitation of Harvesting Rights by "taking up" by Canada either.  
 From Nolin's Note, Lovisek's and Chartrand's evidence already quoted and Dawson's  
post-Treaty recollections, I find that Morris did not advise the Ojibway on October 3, and they  
did not understand, that Canada could authorize land uses inconsistent with Harvesting Rights  
and pass legislation to extinguish or limit Harvesting Rights. They certainly did not consider any  
other government could have such power. They expected Canada to protect their Harvesting  
Rights away from the Dawson Route or CPR right of way, not limit, extinguish or ignore them.  
 The Plaintiffs recognize that although the Ojibway were not advised about Canada's  
powers, the Commissioners knew it would be Constitutionally open to the federal government to  
pass legislation limiting or extinguishing the Treaty rights, after consideration of the conflicts  
between Euro-Canadian uses and hunting and fishing. Alternatively, it could refuse to allow or  
authorize such development. The Plaintiffs are not taking the position that the lack of disclosure  
that Canada could limit their Harvesting Rights is a basis for altogether voiding the Treaty. They  
accept that today, their rights can be limited by Canada provided it can meet the Sparrow test.  
However, they emphasize the unfairness that would occur if Ontario were allowed to limit their  
Harvesting Rights under the Treaty given the lack of explanation or Ojibway understanding that  
even Canada could do so.  
Findings Re The Parties' Understanding with respect to the Identity of the Treaty Parties  
The Ojibway's Understanding on the Identity of the Treaty Parties  
 In their written closing argument, counsel for Ontario submitted at para. 272: "that the  
Ojibway understood that the Commissioners were representatives of the Queen, and that the  
Treaty they agreed to was ultimately between them and the Queen, recognizing that the Queen  
operated through government officials;" at para. 274: "the Ojibway understood going into the  
negotiations that a government of the Queen existed in Canada;" at para. 275: "they would not  
have had any appreciation in 1873 that there were multiple Queen's governments in Canada.  
They had a concept of a generic Queen's government operating within Canada, and that it was  
distinct from the American government;" at para 279: "Morris was not attempting to persuade  
the Ojibway that their Treaty was with a government rather than with the Queen;" at para 377(c):  
"they understood that the government they were dealing with was the Queen's government."  
 I have accepted Lovisek's evidence and found that by October 2, the Ojibway understood  
and accepted that the treaty-making authority of the Commissioners was coming from the  
   
Part 10. Findings of Fact Part I  
171  
Government at Ottawa. The Treaty would be implemented and enforced by the government that  
had sent Pither, Provencher, Dawson and Morris. They understood that Pither, Indian Agent, and  
Provencher, an employee of Indian Affairs, would be particularly responsible for their welfare in  
part by implementing the Treaty  
 The Ojibway understood that their Treaty partner, presented as a single defined unitary  
entity would address their needs and enforce the Treaty promises. Morris had taken pains to  
explain his relationship with the Council at Ottawa, the Government of Canada. The Ojibway,  
who clearly were determined to ascertain the power of the entity with which they were dealing,  
had satisfied themselves that the Queen's government at Ottawa was behind the negotiations and  
would take responsibility for honouring the Treaty promises. Morris represented that if anything  
were wanting, those who did not do their duty in a proper manner would be dealt with. He  
promised that the ear of the Queen's government would always be open and that it would address  
their needs and complaints.  
 Given the clear evidence that Canada intended that Canada would be the Queen's  
government that would be their Treaty partner, counsel for Ontario was never really in a position  
to submit that Canada and the Ojibway's mutual intention in 1873 was that the Treaty parties  
would be the Queen and the Ojibway, at least in the sense that the Ojibway would be able to rely  
on the Queen or Her Majesty the Queen in Right of the British Government to fulfill the Treaty  
terms. Yet that is what counsel for Ontario submitted the Ojibway understood. He submitted in  
effect that because the Ojibway were ultimately relying on the Queen, they did not care how the  
Queen's government was constituted. They did not care whether the Government of Canada was  
a unitary government or whether the Queen's government consisted of multiple governments. It  
did not matter to them. Even though Canada viewed itself as the Treaty party, because Canada  
was/is part of an indivisible Crown, Canada's intention was/is irrelevant. Because the Ojibway  
were ignorant of the constituents of the Queen's government in 1873, it does not and would not  
violate the spirit of the Treaty or the Honour of the Crown to allow Ontario to limit Treaty  
Harvesting Rights.  
 Ontario's submission is essentially that because the Ojibway were relying on the Queen  
and understood that a generic Queen's government, by occupying lands, could deprive them of  
their Harvesting Rights, it would not be contrary to the spirit of the agreement to allow another  
government that is part of the Queen's government to extinguish their Harvesting Rights. The  
fact that they did not know about the existence of Ontario and believed the Queen's government  
at Ottawa was a unitary government is irrelevant because the Ojibway were indifferent as to the  
make-up of the Queen's government. In effect, the Queen's governments of Ontario and Canada  
were interchangeable to the Ojibway.  
 In my view, that submission overlooks the fact that the Ojibway wanted to form an  
alliance, a relationship, with a power that could make and implement and would enforce the  
Treaty. The Ojibway understood the Council at Ottawa was that power. The Ojibway agreed to  
deal with the Council at Ottawa and were relying only on the Council at Ottawa.  
Part 10. Findings of Fact Part I  
172  
 I find the Commissioners were able to make the Ojibway understand that they did not  
have all the Queen's power. They were representing the Government, the Council at Ottawa. The  
Ojibway had been dealing with Dawson as a representative of the Government of Canada on a  
regular basis since 1868. Dawson had met with their Grand Council repeatedly. Chartrand  
conceded in cross-examination (January 21, 2010, pp. 77-78) that it was very possible that  
during one of the early Council meetings, Dawson had explained the nature of his authority to  
oversee the Route and may very well have made a reference to the Government of the Dominion  
of Canada. The Ojibway understood that Canada was building the Dawson Route and that  
Dawson was an employee of Canada. They had been dealing with Pither as a representative of  
the federal Department of Indian Affairs since 1870. They had seen Canadian troops crossing  
their lands on their way to quell the insurrection at the Red River. There were ways in which the  
sense of the Government at Ottawa could be conveyed. They knew that Pither and Provencher  
were employees of Canada. They knew that Canada was building the CPR. They appreciated that  
the security of the Dawson Route and the building of the CPR and its security were the most  
pressing reasons for the Treaty from the perspective of the Commissioners.  
 In short, they knew the Commissioners were from Canada. They were dealing with  
Canada. Canada was promising to implement and enforce the Treaty. They were content with  
that.  
 From a review of the various contemporaneous records of the negotiations, it is clear that  
Morris did frequently refer to the Queen at the start of the 1873 negotiations. He knew the  
Ojibway perceived Her Majesty favourably because they believed that Indians in British  
territories had been well treated relative to their counterparts in the United States. At the  
beginning of the negotiations, Morris was clearly hoping to benefit from that positive perception.  
Chartrand opined that, initially, Morris was trying to achieve his negotiation goal by alluding to  
Ojibway historic understanding that the Queen was noble, generous, kind and protective (January  
22, 2010 at p. 84.)  
 However, I find, just as the Manitoba Free Press correspondent noted in his report that  
during the negotiations on October 2, 1873, Morris made a deliberate decision to make it clear  
what he obviously knew, that they were dealing with and he was deriving his authority from the  
Canadian government.  
 I find that on October 2, 1873, Morris decided to abandon his earlier approach and opted  
to clarify what he had earlier said.  
 Because Morris changed tack, Chartrand's reference to the "preponderance" of references  
to the Queen does not hold water. It is necessary to look at what was said during the critical  
phase of the negotiations on October 2 and 3.  
 On October 3, he repeatedly mentioned and explained not only that the Council at Ottawa  
would be implementing the Treaty but also that the ear of the Queen's government would always  
be open. The Treaty promises would be enforced.  
Part 10. Findings of Fact Part I  
173  
 Chartrand gave evidence (January 15, 2010) that when Morris said the ear of the Queen's  
Government would always be open to the Ojibway, he was directing them to bring their  
complaints to the Queen's Government that he represented and promising that that Queen's  
Government would address their concerns.  
 I find the Ojibway knew they would be turning to the Government of Canada (even if  
they did not understand the precise nature of a federal constitutional monarchy), they perceived it  
as their ally. They looked to it and understood they would deal with it, through Indian Agents, as  
they had already dealt with Pither before the Treaty was made.  
 I note that Chartrand's evidence January 19, 2010 contains the following:  
At p. 118:  
A. …I do believe that the Ojibway at this time believed … that these individuals and Alexander  
Morris in particular were persons who could …effectuate the implementation of provisions, or who  
could ensure that treaty promises were kept.  
After the Treaty was signed, the Ojibway did not call on the Queen but on Morris and the  
Government at Ottawa:  
At p. 127:  
A. I do not have any documentary evidence indicating that they wrote petitions or complaints or had  
them written directly to the Queen.  
At p. 130:  
Q. Okay. Do we -- I take it, though, we never see the Ojibway complain to the English government?  
A. Not directly, no.  
 Immediately after the Treaty was made, the Ojibway asked for the appointment of more  
Indian Agents on the ground to ensure that the provisions promised and other undertakings of  
Canada would be fulfilled.  
 Generally speaking, I find the Ojibway wanted, intended and relied on dealing in the  
future with the entity they perceived to be their Treaty partner, the Queen's Government  
represented by the Treaty Commissioners, the Government at Ottawa. I find the Ojibway did  
understand they were dealing with the Government that they knew was directing the Treaty  
negotiations and promising to address their concerns "so long as the sun shone and the waters  
flowed."  
 I accept Lovisek's evidence that on October 3, 1873, the Ojibway knew they were not  
literally dealing with or relying on the Queen. I specifically reject Von Gernet's and Chartrand's  
evidence that they thought they were.  
 Based on the evidence of Lovisek, I find that the Ojibway Chiefs understood that while  
the Queen's Government/Council at Ottawa acted in the name of the Queen, they were not the  
Queen, and after the Treaty they would not literally be dealing with the woman in England who  
was Queen, nor would they be dealing with any government across the Great Salt Lake.  
Part 10. Findings of Fact Part I  
174  
 By drawing on the Ojibway experience and understanding of their own meetings in  
Council and comparing their Council to a Council governing the Dominion, Morris was able to  
successfully explain that his relationship was with the Government at Ottawa and not literally  
with the Queen. Lovisek said on November 23, 2009 that Ojibway references to the Queen were  
sometimes symbolic and sometimes not. She commented that on October 2, after Morris (1)  
rejected the 1869 demands; (2) was questioned about the extent of his power; (3) said that he  
represented the Queen's Government; (4) reminded the Ojibway that there was another "great  
Council that governed a Great Dominion" that held its Councils the same as they held theirs –  
Morris had been able to successfully explain the concept of the Dominion Government in a  
manner that the Ojibway understood. He was explaining that he was receiving his authority from  
a Great Council in Ottawa that governs a Great Dominion. Morris' explanation could be  
translated into Ojibwe. [The Government of Canada/the Queen's Government/the Government at  
Ottawa could be translated as the Council at Ottawa.]  
 I find the Ojibway understood the only government with which they were dealing and  
with which they would deal after the Treaty was signed was the Queen's government at Ottawa,  
the only government that Morris mentioned. They understood that Morris, Provencher and  
Dawson were representing that government and that the promises were being made on behalf of  
it. They were not ultimately relying on the Queen for the fulfillment of the Treaty promises.  
 I have found the Ojibway did not question the Commissioners or seek clarification about  
the source of their authority on October 3 because they already understood from Morris'  
explanation given on October 2 that they were there on behalf of the Council at Ottawa that  
governed a Great Dominion, and they were content with that.  
 They understood from what Morris told them that the government with which they were  
dealing and would be dealing was a unitary government. They did not understand, because they  
were not advised, that any other government could potentially affect their Treaty rights. They did  
not agree to have their Harvesting Rights adversely affected by any other government.  
 I find the Ojibway were looking to form an alliance with the Queen's Government at  
Ottawa, and were looking to it to implement and enforce the Treaty.  
 I find the Ojibway relied on Morris' specific representations that the Ear of the Queen's  
Government would always be open to hear their complaints and that their complaints would be  
heard. Whenever they perceived assaults on their Treaty Rights, they understood they would  
complain to their Treaty partner, the Queen's Government at Ottawa. They expected it to keep its  
promise that the undertakings made by the Commissioners on the Government's behalf would be  
fulfilled. I have found the Commissioners highlighted the role of the Dominion Government in  
implementing Treaty terms and represented that the Ear of the Queen's Government would be  
open to ensure that the Treaty promises were enforced.  
 The Ojibway did not understand the concept of indivisibility of the Crown on which  
Ontario relies (i.e., that when exercising its exclusive s. 92 powers, Ontario is notionally  
accountable directly to the Queen and is not subordinate to the federal government.)  
Part 10. Findings of Fact Part I  
175  
 Ontario could not contend that the Ojibway understood that they would look not only to  
Canada to fulfill its obligations but also to Ontario to honour whatever obligations Ontario owed  
to the Ojibway under the Treaty vis-à-vis Harvesting Rights.  
 The Ojibway did not intend to deal with various emanations of the Crown. Chartrand and  
counsel for Ontario emphasized that the Ojibway were not aware of multiple governments in  
Canada. Counsel for Ontario placed great reliance on the assertions of Von Gernet and Chartrand  
that the Ojibway did not understand or care what level of the Queen's government they were  
dealing with.  
 I have accepted Lovisek's evidence, supported by Chartrand's evidence before he made  
his "corrections," and I find that the Ojibway were aware that they were dealing with the Queen's  
Government at Ottawa, presented to the Ojibway as a unitary government.  
 I accept Chartrand's evidence given before he made his "corrections" that the Ojibway  
understood they were dealing with individuals who belonged to a central government at a place  
called Ottawa.  
 Even if they did not understand all the niceties of Canadian Constitutional jurisdiction, I  
am of the view that any lack of knowledge or confusion in this regard should not be used to the  
disadvantage of the Ojibway.  
 Bearing in mind the principles of treaty interpretation set out later in these Reasons, I do  
not accept Ontario's submission that if the Ojibway did not appreciate that the Government at  
Ottawa had Constitutional authority and responsibility for Indians and treaties, that should  
ground an interpretation of the Treaty that would allow Ontario to limit Ojibway Harvesting  
Rights in a manner I have found would be contrary to the specific intention of the  
Commissioners and Canada, who clearly intended reference to the Dominion to refer to Canada  
and only Canada, and in a manner that would deprive the Ojibway of Treaty Rights both they  
and Canada understood they were being promised and upon which the Ojibway were insisting as  
condition of entering into the Treaty.  
 Ontario's submission about Ojibway reliance on the Queen is clearly an attempt to use the  
technical Euro-Canadian legal concept of indivisibility of the Crown to limit Treaty Harvesting  
Rights in a way that was not contemplated by Canada or the Ojibway in 1873. I will return later  
to the "honour" Ontario is demonstrating in making such a submission.  
 Even if I had concluded that the Ojibway were mistakenly placing some reliance on the  
Queen to ensure that the promises of her Government at Ottawa were kept, that would not have  
changed my overall conclusion.  
 Again, bearing in mind the applicable principles of treaty interpretation, I would have  
declined to use such a technical concept to defeat Treaty Rights, contrary to the mutual intention  
of Canada and the Ojibway and contrary to the plain meaning of the Harvesting Clause itself,  
which did not specify that the Queen could extinguish the Treaty Harvesting Rights but that they  
could be limited or extinguished only by "taking up" or authorization of "taking up" by Canada.  
Part 10. Findings of Fact Part I  
176  
 In any event, I have accepted the submission of counsel for the Plaintiffs and the  
evidence of Lovisek that the Ojibway cared about and relied upon the power of the Council at  
Ottawa to implement and enforce the Treaty provisions and were not literally relying on the  
power of the Queen.  
 I find the Ojibway were aware of other governments in Canada but they understood they  
were and would be dealing only with the Government at Ottawa.  
 Von Gernet's cross-examination on December 3, 2009 contains the following at p. 89:  
Q. But the establishment of a new government and a new province in the Red River was a major part  
of the sequence of events that's happening between 1870 and 1873, is that fair?  
A. Yes.  
Q. And I suggest to you that the Saulteaux, in some way, were aware that there was another  
governmental power or force growing up at the Red River; is that fair?  
A. Yes.  
[Emphasis added.]  
 Unlike Von Gernet who conceded the Ojibway were aware of another government, for  
instance at Red River, Chartrand at trial maintained they did not understand there were distinct  
Euro-Canadian governmental bodies operative in Canada.  
 I have considered the submission of counsel for Ontario on the issue of Ojibway  
understanding regarding the identity of the Treaty party, that as a layperson, I cannot interpret  
the evidence as well as properly qualified ethno-historians. I note that the ethno-historians did  
not agree on the Ojibway's ultimate reliance on the Queen. Where they conflict, I accept the  
evidence of Lovisek that the Ojibway were relying on Canada and only Canada. I reject the  
evidence of Von Gernet and Chartrand with respect to the Ojibway's reliance on the Queen.  
Canada's Understanding on Identity of the Treaty Parties  
 While the Commissioners understood in a broad sense that Her Majesty the Queen was  
being named in the Treaty, it was clear to them that "Indians and Land Reserved for the Indians"  
were exclusively a Canadian federal responsibility. Canada was not looking to Government of  
the United Kingdom, the Queen or the Government of Ontario to fulfill the Treaty promises they  
were making on behalf of Canada. They intended the reference to the Dominion in the  
Harvesting Clause to be to Canada.  
 The clause Morris inserted in the Treaty relating to limitation of Treaty Harvesting Rights  
did not refer to the Queen or to a generic government, but to the Dominion, i.e., the Government  
of Canada. The process he set out to be followed in limiting Treaty Harvesting Rights plainly  
and clearly required authorization from the Canadian government.  
 The Canadian government approved the terms of the Treaty itself by Order in Council.  
 In short, I have found it was not irrelevant to Canada whether Canada or Ontario would  
have the right to limit or remove Treaty Harvesting Rights. On the contrary, I find that it was  
important to the Commissioners and to Canada that Canada have this power.  
 
Part 10. Findings of Fact Part I  
177  
Summary of Findings of Fact Part 1  
 I have rejected the evidence to the effect that the Ojibway understood they needed to  
enter into a treaty in 1873 due to a negative consciousness of their condition. The Ojibway were  
not "desperate." They were in no rush to enter into any treaty. The key Treaty 3 Rainy River  
Chiefs (i.e., the ones who controlled the Dawson Route) were "careless" about a treaty.  
 The Ojibway understood they were agreeing to share the use of their whole territory and  
resources with Euro-Canadians, so long as the sharing would not significantly interfere with their  
own Harvesting Rights. They did not agree to give up their means of making a living, i.e., their  
own use of resources or their continuing rights to subsistence harvesting on that land. The  
Commissioners recognized that that was their condition for entering into the Treaty, and they  
expressly promised the Ojibway could keep those rights to induce them to do so.  
 Away from the rights of way, the Commissioners promised and the Ojibway understood  
that their harvesting would not be significantly interfered with. The Plaintiffs did not understand  
or agree that development and occupation of lands off the rights-of-way would result in a  
lessening of the area where they could hunt.  
 The Commissioners authorized McKay to convey their positive promises that their  
Harvesting Rights would continue as in the past "as long as the sun shone and the waters  
flowed." On October 3, the Commissioners expressly promised that if the Ojibway had a  
problem with non-fulfilment or Treaty enforcement, the Ear of the Queen's Government, i.e., the  
Government at Ottawa, would always be open and that their Treaty partner, Canada, would  
ensure that the promises made by the Commissioners would be actively enforced.  
 Given their negative assessment of the overall potential of the Treaty 3 lands, the  
Commissioners made unusual promises they might not have been prepared to make in a more  
promising environment. The Commissioners believed it was both feasible and in the national  
interest to make the promises to the Ojibway that they did.  
 The Ojibway practiced sustenance harvesting directed to satisfying needs, not to  
maximizing their harvest. The Commissioners/Canada and the Ojibway expected that the  
continuation of traditional harvesting practices would leave room for Euro-Canadians to share in  
the use of the resources without significantly affecting Ojibway subsistence harvesting  
(Chartrand, January 18-19, 2010.) In other words, the Ojibway and the Commissioners expected  
Euro-Canadian land uses and Ojibway traditional harvesting would be compatible.  
 After reviewing, comparing and analyzing all the evidence, while I have found that the  
Ojibway knew they were compromising their right to exclusively occupy all their lands, they did  
not understand and did not agree to an increasing erosion of their Harvesting Rights as Euro-  
Canadian development was authorized, let alone compromise their Harvesting Rights by  
agreeing to process-free development and extinguishment of their Harvesting Rights by  
whomever the owner of the lands turned out to be.  
 
Part 10. Findings of Fact Part I  
178  
 Morris deliberately made the reference to the Dominion in the Harvesting Clause and  
during the negotiations, not because he expected that the Dominion would always be the owner  
of the lands, but because he knew there was a good possibility that the Dominion would not  
always be the owner. The Dominion was the Treaty partner of the Ojibway, and he expected and  
promised that the Dominion would implement and enforce the Treaty promises pursuant to its s.  
91(24) jurisdiction. He held out the Dominion as their friend and ally. His promises were  
consistent with his understanding of the historic protective role of the Imperial Government and  
Canada after 1867 in standing between the settlers and the Indians and also the prospective  
"wardship" role he expected Canada to take after the Treaty was signed. He wanted to ensure that  
Canada could keep its promises even if Ontario were found to own the land.  
 While the Commissioners understood and agreed that the Harvesting Rights promise  
would require some management by the federal government, in light of the anticipated  
compatibility of Euro-Canadian and Ojibway uses, they did not expect that such management  
would be unduly onerous or would require intervention except in the rare event of conflict  
between Euro-Canadian uses and Ojibway Harvesting Rights.  
 If Canada won the Boundary Dispute, the Commissioners expected multi-departmental  
cooperation to manage the situation and to fulfill the Treaty promises, because it was recognized  
that security of travelers to the West, the CPR and the Dawson Route depended on the  
cooperation of the Treaty 3 Ojibway.  
 If Canada lost the Boundary Dispute, the Treaty made it clear that Canada expected to  
exercise its s. 91(24) jurisdiction, if necessary, to protect Treaty Harvesting Rights. Morris  
understood Treaty Harvesting Rights reserved under the Treaty were an interest other than the  
interest of the province in the lands.  
 In short, the Commissioners perceived that whether it won or lost the Boundary Dispute,  
by making the promise on which the Ojibway were insisting – reserving the Harvesting Rights to  
the Indians in the Harvesting Clause and mentioning "taking up" by the Dominion – Canada  
could protect its wards and at the same time could meet its pressing national objectives.  
 For all the reasons detailed within these Reasons, I have found that in the Treaty 3 area,  
the Commissioners promised more than a continuation of the right to hunt anywhere within their  
traditional territories. Away from the vicinity of the Dawson Route and the CPR, they intended  
that Ojibway Harvesting Rights would not be significantly interfered with without the  
authorization of Canada. They would continue throughout the Treaty 3 lands "as long as the sun  
shone and the waters flowed."  
11. POST-TREATY EVENTS  
 In presenting the evidence in this section, rather than separating each issue into its own  
sub-section, I opted to use mostly chronological order because many issues and events were  
inter-related even though at first glance they might have seemed unrelated. For instance, in the  
first five years following the signing of Treaty 3, efforts were made to allocate reserves.  
 
Part 11. Post-Treaty Events  
179  
However, the best of federal intentions were derailed by the Boundary Dispute. When there was  
discussion of an important issue or event, I highlighted the issue or event by inserting headings.  
 After the surrender the Ojibway never limited Euro-Canadian occupation in the balance  
of their territory (Lovisek, October 23, 2009 at p. 137.) They shared resources with the Euro-  
Canadians throughout the Treaty 3 territory.  
Attempting Reserve Allocation Amidst Political Upheaval  
 1873. On October 11, 1873, the federal government instructed Dawson to start consulting  
with the Treaty 3 bands about reserve selection.  
 Morris intended that Canada would keep its Treaty promises. In his Official Report dated  
October 14, 1873, he stated, "I would further suggest that no patent should be issued or license  
granted or mineral or timber lands, or other lands, until the question of the reserves has first been  
adjusted."  
 In fact, the location of the Treaty 3 reserves was not to be confirmed for another 42 years.  
The reasons for the delay and the negative effects on the Ojibway are covered later in these  
Reasons.  
 Treaty 3 was approved by federal Order in Council on October 31, 1873.  
 On November 4, 1873 the Governor General wrote Morris a letter (Ex. 1, vol. 7, tab 294)  
that said in part, "[T]he results will I believe … furnish …additional evidence that the method  
adopted by the Government in dealing with the Indians is such as to secure their protection."  
[Emphasis added.]  
 On November 5, 1873, following the Pacific Scandal, the Conservative government of  
Morris' mentor, Macdonald, was forced to resign.  
The Liberals are Elected  
 1874. In January 1874, a Liberal government headed by Alexander Mackenzie was  
elected. It included a number of Reformers who were strong provincial autonomists.  
 Chartrand's report, Ex. 60, contains the following at p. 316:  
On January 8th, 1874, the Lieutenant-Governor of Ontario reported on the state of the boundary  
dispute in a Speech from the Throne, indicating that informal steps had been taken towards  
establishing a "provisional" boundary as Ontario and the Dominion Governments continued  
respective efforts at historical and legal research and analysis…  
 In early 1874, Morris, Provencher and Dawson all repeatedly urged that reserve selection  
be completed as soon as possible.  
 On March 2, 1874 Dawson wrote a letter (Ex. 4, p. 251) to the Minister of the Interior  
containing the following:  
   
Part 11. Post-Treaty Events  
180  
Rainy River is the only place where extensive reserves of the first class, that is farming lands, could  
interfere with the progress of settlement; and I would propose limiting [the reserves] on that river to  
an aggregate area of 6 square miles.  
... [T]he islands of the Lake of the Woods are at present the chief farming stations of the Indians …  
On conferring with the Indians I have no doubt but that matters relating to the reserves can be easily  
arranged. They will of course seek to get as much as they can on Rainy River but there, it has already  
been explained to them that they are to be confined, as regards reserves of the first class, to the  
localities they hitherto occupied as camping grounds, fishing stations and gardens.  
 In his report, Ex. 60, Chartrand confirmed that Dawson anticipated compatibility between  
Euro-Canadian and Ojibway uses, except perhaps in the Rainy River area:  
At p. 217:  
Dawson's letter [of March 2, 1874] reveals that he expected little to no conflict with respect to the  
selection and use of lands by Aboriginal signatories, the Dominion and non-Aboriginal settlers and  
developers. As he indicated, at the time the only area where potential conflict might develop was in  
the vicinity of Rainy River, where Aboriginal signatories had developed their own agricultural  
practices and where lands held the most promising potential for non-Aboriginal settlement and  
farming. …  
In other Treaty 3 localities … Dawson expected few conflicts …  
…
At p. 316:  
In March 1874, the Legislative Assembly of Ontario passed a resolution formally proposing to have  
the boundary question settled either by a board of arbitration or by the JCPC, and adopting a  
temporary or "provisional" boundary in the interim, to be located by negotiation with the Dominion  
Government.  
At p. 115:  
On March 19, 1874 twenty Ojibway Chiefs had a petition written on their behalf, pressing demands  
directly to Alexander Morris that their reserves be surveyed and determined as soon as possible.  
 Lovisek's report contains the following at pp. 145-6:  
Within six months of the signing of Treaty 3, on March 19, 1874 twenty chiefs from the Lake of the  
Woods presented a letter in French to Lieutenant Governor Morris which contained various  
complaints about the non fulfillment of Treaty 3. Although many of the complaints involved the lack  
of receipt of farming implements and reserves, the chiefs made several statements which reveal their  
understanding of the Treaty. For example, the Chiefs stated that the desire for the Treaty was to: "ally  
ourselves with the Whites by a Treaty, we calculated on being maintained by them, at least to the  
extent were promised..."  
 In a letter dated May 31, 1874 (Ex. 4, p. 260), a number of Chiefs expressed concerns  
that the reserves were not being set up quickly enough. They wanted to ensure that their gardens  
would be protected, as promised, and that localities where they fished for sturgeon would be  
incorporated into reserves for their exclusive use.  
 In June 1874, the governments of Ontario and Canada, now both Liberal, agreed on a  
temporary Canada/Ontario boundary and on the appointment of a Board of Arbitration to  
adjudicate the Boundary Dispute. Canada was to make grants of land to the west and north of the  
provisional boundary line, Ontario to the east and south. The two governments agreed that once  
Part 11. Post-Treaty Events  
181  
the boundary line was determined, they would ratify patents made in the meantime and provide  
an accounting of the proceeds.  
 Chartrand in his report, Ex. 60, addressing the jurisdiction issue, mentioned the  
following:  
At p. 316:  
The two governments also agreed that the arbitration award would be considered "final and  
conclusive." [References omitted.]  
At p. 366:  
Beginning in the summer of 1874 under the Provisional Boundary Agreement Ontario assumed  
jurisdiction over patents to mining locations in a defined eastern portion of the Treaty 3 territory.  
…
Available documents pertaining to the negotiations of Treaty 3 present no direct evidence indicating  
whether the Ojibway participants to the negotiations were aware that the lands being treated for  
formed part of a territory being disputed by two distinct levels of government. These documents  
present no direct evidence indicating whether the boundary dispute, if known to the Ojibway, held  
any particular significance to them.  
At pp. 207-8:  
On June 24th, as formal Dominion-Ontario negotiations were nearly completed in regards to  
assigning a temporary boundary enabling administration of Treaty 3 lands, a report was prepared by  
the Minister of the Interior recommending the appointment of Simon Dawson and Robert Pither as  
Commissioners to undertake reserve selection negotiations with Treaty signatories …The Minister  
explained that Dawson had already been selected by Alexander Morris to act in this capacity, and to  
that effect, had held preliminary discussions with the boundary waters Ojibway resulting in the  
production of map of the area showing the general locations of two classes of reserves promised  
under Treaty 3 (farming reserves and wild lands reserves). The report presented the following  
recommendations respecting reserve locations:  
The Reserves for farming purposes should be confined generally to localities heretofore  
cultivated by the Indians and occupied by them as camping and fishing grounds; such,  
according to Mr. Dawson was the understanding at the time of the making of the Treaty; and  
these Reserves should be so placed as not unnecessarily interfere with the progress of  
settlement.  
[References omitted.]  
 Chartrand's report, Ex. 60, contains the following:  
At p. 210  
Simon Dawson and Robert Pither were formally notified by the Department of the Interior of their  
appointments as Commissioners to negotiate the selection of Reserves with Treaty 3 bands on July  
14th, 1874…  
At pp. 211-212:  
Dawson and Pither held separate conferences with signatory bands of Rainy River and the Lake of  
the Woods in the first half of October, 1874. By October 8th, as the conferences with Rainy River  
bands were essentially concluded, Pither wrote Dawson to confirm arrangements regarding the  
preparation of a report to the Department of the Interior …  
On October 9th, Dawson transmitted a telegram to E.A. Meredith (Deputy Minister of the Interior)  
reporting the successful conclusion of the Rainy River conference. A similar notice pertaining to the  
conference with Lake of the Woods … bands was transmitted October 15th.  
Part 11. Post-Treaty Events  
182  
Dawson provided a preliminary report on the Reserve selections to E.A. Meredith (Deputy Minister  
of the Interior) on December 31, 1874. This report described reserves laid out along Rainy River and  
Rainy Lake area and was accompanied by a map showing their approximate locations. Dawson  
emphasized that the reserves along Rainy River needed to be surveyed and confirmed as soon as  
possible. Owing to their proximity to the immigrant travel route and to the fact that they contained  
valuable land, the Rainy River Reserves were susceptible to encroachments from squatters.  
[References omitted.]  
 Meanwhile, Canada was building on the foundation of the Indian agency system in the  
Treaty 3 area that had been started with the appointment of Pither in early 1870. It appointed  
other Indian Agents to serve on the ground in the Treaty 3 area.  
 1875. In a letter dated January 19, 1875, Fournier, the federal Minister of Justice, and  
Bernard, the Deputy Minister of Justice recommended (Ex. 131, pp. 1024-1028) that the federal  
government disallow B.C. Crown land legislation because it failed to protect Indian interests.  
(Vipond, February 26, 2010 at pp. 69-80.)  
 Blake, another provincial rights advocate, also recommended disallowance the following  
year. He endorsed Fournier and Bernard's view that the federal government could intervene in  
the management of provincial Crown lands where the federal government had a duty to act to  
protect the rights of the Indians under s. 91(24).  
 Vipond gave evidence on February 26, 2010 to the effect that despite the fact their  
political stripes differed from those of the federal Conservatives, Fournier, Bernard and Blake all  
understood that the federal government had both jurisdiction and responsibility to protect First  
Nations' interests, even in respect of lands that were situated in a province with s. 109 powers.  
Fournier was quoted as follows:  
[T]he undersigned feels that he cannot do otherwise than advise that the Act in question is  
objectionable, as tending to deal with lands which are assumed to be the absolute property of the  
province, an assumption which completely ignores, as applicable to the Indians of British Columbia,  
the honour and good faith with which the Crown has, in all other cases, since its sovereignty of the  
territories in North America, dealt with their various Indian tribes.  
[Emphasis added.]  
 Vipond agreed (February 26, 2010) this passage was a "ringing endorsement" of the  
federal responsibility to look out for the interests of the Indians, and that Fournier, Bernard and  
Blake believed that British Columbia's s. 109 ownership of its lands was subject to the rights of  
the Indians.  
 In February 1875, the federal government acted to implement and enforce Treaty 3 rights  
after it was reported that Euro-Canadian settlers at Fort Frances had been cutting wood on  
reserves. A department of the federal government in concert with the Indian Department invoked  
federal jurisdiction under the Dominion Lands Act and appointed Pither as a Dominion Land  
agent at Fort Frances with power to prevent settlers from cutting timber on Indian lands. On June  
21, 1875, the federal government empowered Pither to punish the trespassers [Ex. 60, Chartrand  
report at p. 218.]  
Part 11. Post-Treaty Events  
183  
 Lovisek's report (Ex. 28) contains the following at pp 147-149 recording Morris'  
comments about a conversation with the Chiefs with respect to a Petition dated June 21, 1875  
[Ex. 1, Vol. 8, tab 359, p. 8.]:  
One of the chiefs asked for a copy of the Treaty, "saying they want to know what is written…"  
1st The first chief Canda-comigo-wi-ninie … said I had promised that no drink should be in  
their country … I told him a law had been made against it, and I would report his wishes and  
ask that the law be enforced.  
…
3rd. He complained that the promises of the Treaty were not being kept. …  
…
The chief said, … It is all rock at White Fish Lake… I want to give up part of that and get  
more on the Lake of the Woods.  
9th. ... The second chief … said… We … want an agent for ourselves at the Lake of the  
Woods…  
…He asked for a copy of the Treaty…  
…
The Saulteaux understood that their treaty relationship was personal and with the Commissioners  
with whom they had personally dealt with at Northwest Angle, particularly Morris. This is why when  
the Saulteaux had a complaint about the treaty they travelled long distances to meet personally with  
Morris and later his successor, Cauchon. This demonstrates that the Saulteaux understood that the  
treaty agreement was personal and limited to certain parties. The Saulteaux were not indifferent to the  
parties they had entered into for such an important agreement. The agreement created a relationship  
which the Saulteaux would have understood through such mechanisms as alliance, kinship and  
reciprocity. These mechanisms involved mutual obligation, interpersonal relations and kinship. Both  
the Saulteaux and Treaty Commissioners now shared a mutual relationship in the form of a symbolic  
kinship to the Queen, which enabled what Historian Jean Friesen has described as reciprocal  
obligations.  
Morris forwarded the Chiefs' complaints of June 21, 1875 to the Minister of the Interior on July 3,  
1875. Chief Sakatcheway (also known as Perrot) asked for "cattle, tools, implements, uniforms and  
flags." Morris relayed this information to Provencher, who said he had sent them to Indian Agent  
Pither. Morris wrote:  
…
It is essential that the stipulations of the Treaty be exactly observed and the carrying out of  
the same should occupy the whole time of the agent charged therewith…  
[Emphasis added; footnotes omitted.]  
 In August 1875, the federal government appointed Surveyor General Dennis ("Dennis")  
to complete negotiations for the selection of reserves for the Rainy River and Lake of the Woods  
bands. (Chartrand report, Ex. 60, p. 214; Lovisek report, Ex. 28 at p. 149.) Lovisek's report, Ex.  
28, contains the following at pp. 149-150:  
The Surveyor General of the Dominion of Canada J. Dennis arrived in Fort Frances on September 10,  
1875 to address a number of treaty related issues which had arisen since 1873. As part of his  
meetings with the [Ojibway], on October 1, 1875, Dennis entered into a detailed agreement with the  
Rainy River Chiefs on the extent and location of their eight reserves. This agreement is often referred  
to as the Rainy River Reserve Agreement. … The October 1, 1875 Rainy River Reserve Agreement  
was signed by several [Ojibway] signatories, some of whom had endorsed the Morris Document. But  
the signatories to the Rainy River Reserve Agreement signed with the marks of their totems. …  
Part 11. Post-Treaty Events  
184  
 Lovisek emphasized the importance of a handwritten note on the agreement in her  
evidence on October 22, 2009 at p. 94 (adopting Ex. 1, vol. 8, tab 367) as follows:  
It is understood that the fishing at the rapids opposite this Reserve is to be open to the Indians  
generally.  
…
The fishing opposite this Reserve for the Indians generally.  
It is understood that the fishing in the Rainy River opposite this Reserve is for the Indians generally.  
It is understood that the government will have the right to construct canal locks or other public works  
to pass the Long Sault rapids - should they so desire in such case the Indians to be duly notified and if  
the fisheries should be destroyed thereby, the Indians to be fairly dealt with in consequence.  
[Emphasis added.]  
 In his report, Ex. 60, Chartrand mentioned the Rainy River Reserve Agreement at pp.  
222-223:  
… The agreement confirmed the establishment of different reserve lands and contained provisions  
regulating the geographic location of Aboriginal fishing activity outside reserves. The agreement was  
signed on October 1st, 1875, between J.S. Dennis (Surveyor General at the Department of the  
Interior) and seven Rainy River area Chiefs and leading Band Representatives.  
…The Rainy River area had historically been subject to relatively dense Ojibway occupation, as it  
featured regionally important sturgeon fisheries and rich soil permitting the development of a  
traditional Ojibway agricultural economic base (cf. section 6.1). No fewer than seven Bands were  
established along Rainy River following Treaty 3. …  
Specific fishing areas outside reserves were … designated as "open to the Indians generally" … The  
agreement stipulated in such an eventuality [construction of public works] the Indians would "be duly  
notified and if the Fisheries should be destroyed thereby the Indians to be fairly dealt with in  
consequence."  
[Emphasis added. Footnotes and references omitted.]  
 Lovisek gave evidence that Dennis' promises in the Rainy River Reserve Agreement are  
consistent with an intention by the federal government to set aside sturgeon fisheries in the Rainy  
River area for exclusive Indian use. She commented that the federal government not only  
recognized Treaty 3 Ojibway rights to fish within their reserves, but also agreed to protect  
sturgeon fishing only by the Indians in areas opposite several of the reserves. The government  
also promised that if public works adversely affected Indian fisheries, it would compensate the  
Ojibway. Even in the area of the Dawson Route, where the Ojibway had understood and  
accepted there could be negative impacts on their fishing by reason of Euro-Canadian uses, the  
federal government undertook to compensate the Ojibway for such negative impacts.  
 All the expert witnesses agreed that post-Treaty, if the Ojibway had concerns about non-  
fulfilment of Treaty terms, Canada expected them to direct their complaints to Ottawa through  
the Indian Agents. Chartrand said on January 19, 2010 that Canada insisted they use the agency  
system as a "one-stop shopping place" for resolution of their complaints, whether the issue to be  
resolved had arisen on or off-reserve:  
Q: … what we see consistently is these complaints are directed to the federal government… the  
federal government also actively started to say to the Indians, deal with the agent, don't start writing  
Part 11. Post-Treaty Events  
185  
us letters in Ottawa, don't come travelling to Ottawa, you know, don't go outside the framework  
we've created?  
A: It wasn't started. It was a -- very much a continuation of policy …in force …prior to the treaty  
agreement when, I believe in 1872, Chief Blackstone attempted to travel to Ottawa, and in the end,  
Wemyss Simpson ended up taking certain steps to ensure that he never left Prince Arthur's Landing.  
… [I]f you're asking me … were there directives transmitted down the chain of communication to the  
Ojibway emphasizing that there was a proper chain of communication to be followed, the answer is  
an unqualified yes.  
Q: Right. And that included with respect to matters related to hunting and fishing rights off-reserve?  
A: I would tend to think, and I don't claim to have conducted exhaustive research on every issue that  
the Ojibway were ever faced with, but I would tend to think that chain of communication would have  
been insisted on in regards to any matter of life on reserves or life of the Ojibway.  
Q: And sorry, it's the on-reserve part that I want to deal with. It's not just on-reserve, it's also with  
respect to treaty rights issues, hunting rights issues, fishing rights issues?  
A: Yes, that's correct."  
[Emphasis added.]  
 Chartrand observed (January 21, 2010 at p. 65) that the Ojibway consistently framed their  
complaints in terms of the relationship. They expected their Treaty partner to address their  
complaints and have due regard for their welfare.  
 Dennis reported to Ottawa that the Chiefs had generally taken exception "to the manner  
in which they had been treated, so contrary to what they had been led to expect." In a letter dated  
October 1, 1875, he quoted Chief Powawassan and two other chiefs verbatim as follows:  
We wish to thank the Minister for sending you to see us, not alone because of the result of settling  
our reserves but because representing the Minister, you have been able to give us the assurance that  
everything will be done for us that …we are entitled to under the Treaty. We hope … nothing was  
said … displeasing to the Government."  
 Lovisek gave evidence on November 18, 2009 at p 71 that at an Indian Council on  
October 3, 1875, Dennis said, "This is the proper way for the Indians to do if they have any  
complaint, and you may depend upon it that when you bring forward complaints in this way, if  
they prove to be well-grounded, the Government will listen to your wants and will remedy all  
reasonable grievances. You have proffered your complaints in a most courteous way and I shall  
inform the Minister accordingly."  
 In his Annual Report to Indian Affairs dated October 30, 1875 (Ex. 4, p. 282-283),  
Provencher, the Indian Commissioner, noted that the previous year, Treaty 3 Indians had  
received revenue from hunting and fishing exceeding $25,000. They had reserved to themselves  
the right of selecting their Reserves and were making many demands. He proposed that the  
Government educate them on the true meaning of the Treaty. [Emphasis added.]  
 1876. In March 1876 in a speech to the Commons, Sir John A. Macdonald, then the  
Leader of the Opposition, on the introduction of the Indian Act, said: "The Bill is a very  
important one. It affects the interest of the Indians who are especially under the guardianship of  
the Crown and of Parliament." [Emphasis added.]  
 After Ontario pressed its claim in the Boundary Dispute to lands as far west as the forks  
of the Saskatchewan River, Prime Minister Mackenzie wrote a letter to Premier Mowat in  
Part 11. Post-Treaty Events  
186  
September 1876: "I think it is likely that we can agree to the western boundary, but it is utterly  
useless to talk of compensation for something upon a suppositious claim west of that. That  
cannot under any circumstances be even spoken by us."  
 1877. Lovisek's report (Ex. 28) contains the following at pp. 152-3:  
Indian Agent Amos Wright informed E. A. Meredith Deputy Minister of the Department of the  
Interior, on November 17, 1877, that he had met with Chief Blackstone who said that they were  
entitled to cattle as promised by the Government at the time of the treaty. Blackstone also stated that:  
they were promised the privilege to travel free, on the Government steam boats, and teams  
on the Dawson route, and that he, and, also his people, should be furnished with clothing,  
annually.  
Indian Agent Wright dismissed Chief Blackstone's claims:  
These claims seemed to me so absurd that I did not think it advisable to trouble the  
Department with the matter however, I stated to them distinctly, that the Government in  
dealing with the Indians, would, confine themselves strictly to the terms of the Treaty.  
... Since Wright was not present at the Treaty 3 negotiations, his dismissal of Chief Blackstone's  
grievances were without foundation.  
 On December 29, 1877, a Rainy River Chief addressed a petition (Ex. 1, Vol. 8, tab 400)  
to Morris' successor, the Honourable Mr. Cauchon, asking him to use his influence with the  
Government at Ottawa.  
 Lovisek's report (Ex. 28) contains the following at pp. 153-154:  
The Saulteaux continued to understand that it was the Dominion Government or the "Government at  
Ottawa" with whom they had entered into a reciprocal relationship and with whom they should  
register their complaints about the treaty. On December 29, 1877, Chief Kishekoka of Rainy River,  
under instruction by the chiefs of Rainy River and Northwest Angle wrote to Joseph Edouard  
Cauchon about: "some grievances that we have and hope that you will use your influence for us with  
the Government at Ottawa."  
 1878. On January 3, 1878, Pither wrote to Meredith, Deputy Minister, informing him of  
the difficulties the Ojibway would experience were they required to stay on their reserves in  
order to receive annuity payments. Lovisek quoted a portion of that letter in her report (Ex. 28) at  
pp. 153-154:  
I have always impressed on the Indians that any provision made to them by persons authorized by the  
Government would be kept and have told them to keep faithfully all promises made on their part of  
the Treaty- and up to this time I have had no fault to find with the Indians under my charge.  
[Emphasis added; footnotes omitted.]  
Events, 1878 - 1887  
The Boundary Dispute  
 Vipond gave evidence that for Premier Mowat and for Ontario, the outcome of the  
Boundary Dispute was far from a trivial matter. Ontario had significant political and economic  
incentives to seek to have its boundary determined to be as far west as possible. Any lands it  
could establish to be within its boundaries would provide it with revenue. In an era before  
   
Part 11. Post-Treaty Events  
187  
income taxes, the sale and licensing of Crown lands was the engine and fuel of provincial  
ambition. Mowat's strategy, dubbed "Empire Ontario," was to maximize Ontario's area and  
exploit the resources in the less populated areas of the province for the benefit of the metropolis,  
Toronto.  
 Vipond's report, Ex. 123, contains the following:  
At pp. 13-14  
The basic principle of forest management in Ontario, both pre- and post-Confederation, was that  
forests were for rent but not for sale. For various reasons, this basic policy… for Ontario… produced  
"an extraordinary financial bonanza throughout the last two decades of the nineteenth century." As  
Nelles notes, "(w)henever the provincial treasurer required additional revenue to meet his  
obligations…, the Commissioner of Crown Lands merely auctioned off another batch of timber  
limits." … Timber rights…were so lucrative … that, according to Nelles' calculation, between 1867  
and 1899 timber fees accounted for approximately 30% of the total revenue of the government of  
Ontario. …  
With so much at stake, Ontario guarded its right to manage its forests vigilantly – even when this  
provoked controversy with the federal government. …  
At pp. 16-17  
Political: …The exploitation of natural resources generated revenue that could be used to develop  
the sort of infrastructure – roads, schools, cheap power – that would generate more revenue. This  
was the essence of Ontario's strategy to build a modern industrial state. Yet as revenue needs grew,  
so grew the need to enlarge the hinterland from which resources could be extracted. Thus, for Oliver  
Mowat, who served as premier from 1871-1896, extending Ontario's boundaries beyond the limits  
established in 1867 was absolutely essential to the future health and prosperity of Ontario. …  
…
Extending Ontario's boundary was not simply about economic development, however. There were at  
least two political motivations as well. First, by controlling more resources over a broader territory,  
Mowat's Liberals believed they would build enduring political support for their party and  
government. … Control over land and natural resources simply increased the opportunities for  
dispensing patronage enormously.  
At p. 18:  
These imperatives, at once economic and political, help to explain why the dispute over the  
placement of Ontario's western and northern boundaries became one of the signature struggles  
between Mowat's Ontario and Macdonald's Ottawa. …  
[Footnotes & references omitted.  
 After three days of hearings in August 1878, the Boundary Commission decided that the  
west/east boundary between Ontario and Canada was about at the westerly limit of the Treaty 3  
lands. The Disputed Territory, roughly 2/3 of the Treaty 3 lands, was held to be in Ontario. It  
was a big victory for Ontario. There was a huge rally in Niagara Falls and parades were held to  
celebrate in Toronto, London and Bothwell.  
The Conservatives are Elected  
 Before either Ontario or Canada could act on the decision of the Boundary Commission,  
Macdonald's federal Conservatives won a federal election and took office again on October 17,  
1878.  
 
Part 11. Post-Treaty Events  
188  
 Chartrand's report, Ex. 60, contains the following at p. 330: "Upon returning to power,  
John A. Macdonald led the new Dominion Government's resolve to refuse to ratify the boundary  
award." [References omitted.]  
 1879. In March 1879, after its repeated requests that Canada pass legislation to  
implement the Boundary Award had gone unanswered, Ontario passed An Act respecting the  
Administration of Justice in the Northerly and Westerly parts of Ontario and appointed two  
stipendiary magistrates to superintend its new territory: E.B. Borron in the northern portion (the  
District of Nipissing), and W.D. Lyon in the western section (the District of Thunder Bay.)  
(Chartrand's report, Ex. 60 at p. 332.)  
 The Dominion Government continued to ignore Ontario's actions (Chartrand's report, Ex.  
60 at p. 332.)  
 1880. In a letter dated January 20, 1880, the federal Minister of Justice wrote, "[A]s the  
Parliament of Canada has not yet legislated upon the subject, the question of the boundaries  
remains, as a matter of law, unsettled."  
 Saywell's report, Ex. 137-2, contains the following at p. 14:  
When the matter arose in the Commons, Macdonald charged that … the arbitrators had determined  
not the "true" but the "best line they could under the circumstances." He would not accept a decision  
by a "bad tribunal," only one member of which was an expert "in the construction of Statutes," to  
"give away territory equal to any great European kingdom" in "utter disregard of the interests of the  
Dominion."  
 Chartrand's report, Ex. 60, contains the following at p. 218: "Between 1875 and 1880  
most Treaty 3 reserves, including some located in the more remote parts of the Treaty territory,  
were selected although several reserves remained to be surveyed." [References omitted.]  
 Chartrand wrote in Ex. 60 at pp. 332-333:  
By early 1880, John A. Macdonald was also … beginning to articulate an alternative challenge to  
Ontario's ability to administer lands and resources contained within the territory awarded by the  
Board of Arbitration. In February 1880, the House of Commons returned to debating the merits or  
validity of the 1878 decision. On February 16th, a Member of Parliament inquired whether the  
government intended in the current session to "propose a measure ratifying the award on the subject  
of the boundary between Canada and Ontario." John A. Macdonald provided the response for the  
government, bluntly stating "It is not the intention of the Government to propose any such measure."  
The House of Commons returned to the boundary issue on February 18th, in a debate … pertaining to  
a bill … requesting the House of Commons to affirm the 1878 arbitration award. A motion was  
immediately introduced by Simon J. Dawson (then M.P. for Algoma) to have a parliamentary  
committee appointed to review the evidence presented in 1878 to the Board of Arbitration and re-  
examine the basis and validity of its decision. This was followed by several speeches in which  
various members of the House debated key aspects of Dominion and Ontario arguments in the  
boundary case. At the end of the debate, John A. Macdonald explained his support for reviewing the  
basis of the award:  
…
The utter disregard of the interests of the Dominion which are involved in this matter is one  
that calls for the most serious consideration of this House, as well as for the most serious  
Part 11. Post-Treaty Events  
189  
consideration of the people in this country. The Province of Ontario after all, perhaps, will  
not get as much as it expected, because a great portion of the Indian title to the land is not  
extinguished; while, in regard to those portions that are extinguished, if the award was  
consistent, they have the right of sovereignty, and the title belongs either to the Indians or to  
the assignee of the Indians, which is the Dominion Government.  
[References omitted.]  
 1881. By 1881, the CPR had been completed north of the Lake of the Woods.  
 In the Disputed Territory, pending a legal determination of Ontario's boundaries, there  
was chaos on the ground. As early as February 1881, an Ontario magistrate had written: "There  
is no civil court to collect debts, no land agent to locate settlers, no registry office to record  
deeds, no timber agent to protect the forest." (Saywell report, Ex. 137-2, pp. 20-21.)  
 Meanwhile, Canada passed legislation extending the boundary of Manitoba eastward.  
Saywell's report, Ex. 137-2, contains the following:  
At p. 17  
[O]n 7 March 1881 … the Manitoba boundary bill was introduced … Sir Alex Campbell stated that  
the new boundary proposed on the east "will extend to the west limit of Ontario, wherever that may  
be…" and a map indicated "what the boundary line between Ontario and Manitoba will be, as the  
present Government of the Dominion believe the law establishes it." …  
…
At pp. 18-19:  
During the heated debate in the Commons on 18 March 1881, Macdonald declared that … as  
"trustees for the Dominion" he believed the only way to settle the case was an appeal to the Judicial  
Committee.  
 1882. During the federal election campaign of 1882, Macdonald, speaking of the  
Boundary Dispute, was quoted as follows:  
The land belonged, so far back as the grant of Charles II could give it, to the Hudson's Bay Company,  
but it was subject to the Indian title. They and their ancestors had owned the lands for centuries until  
the Dominion Government purchased them. These lands were purchased, not by the province of  
Ontario – it did not pay a farthing - but by the Dominion … Even if all the territory Mr. Mowat asks  
for were awarded to Ontario, there is not one stick of timber, one acre of land, or one lump of lead,  
iron or gold that does not belong to the Dominion…  
 The Globe characterized Macdonald's statement as a "flimsy piece of sophistry." Mowat  
decided to test it in court, declaring "There can be no war without two parties." He said that  
while he was just as attached to Confederation as anyone, "if [Ontario] could only maintain  
Confederation by giving up half of [its] Province, then Confederation must go." (Saywell report,  
Ex. 137-2, pp 19-22, 33.)  
 1883. In 1883, at Rat Portage (now Kenora), there were two municipal governments, two  
legislatures; two sets of courts, two liquor laws, and three police forces. Saywell's report (Ex.  
137-2) contains a newspaper report from one day in July 1883, at pp. 20-21:  
Dominion Commissioner McCabe with two policemen, Ontario Magistrate Burdon with twenty-five  
policemen, and Stipendiary Magistrate Brereton with fifteen policemen acting on behalf of Manitoba,  
have been arresting each other all day; and the people have been siding, some with one party and  
some with another, to the imminent danger of the peace and of loss of life.  
Part 11. Post-Treaty Events  
190  
 1884. On August 11, 1884, the JCPC affirmed the 1878 Award of the Boundary  
Commission.  
 Saywell's report (Ex. 137-2) contains the following at p. 28: "[T]he Judicial Committee  
decided that the western and northern boundaries were as the 1878 Award had determined. But  
absent Dominion legislation the Award was not binding. [Emphasis added.]  
 Just as he had claimed in the Commons in February 1880 and during the 1882 federal  
election campaign, Macdonald continued to claim ownership of the Disputed Territory, even  
after the 1884 JCPC affirmation of the 1878 Boundary Commission, on the basis that the 1873  
Ojibway surrender had passed title to the federal government. Canada continued to purport to  
exercise jurisdiction, in part, by issuing timber licenses to the St. Catherine's Milling Company (a  
company with close connections to the Conservative party.) Chartrand's report, Ex. 60, contains  
the following at p. 341:  
However, the final proviso by the JCPC regarding the need for Imperial legislation, left an opening  
by which John A. Macdonald could pursue an alternate strategy to attempt to retain control over  
natural resources in the former 'disputed territory'. As Armstrong put it:  
This decision, however, was not binding until ratified by legislation, and Macdonald  
steadfastly refused to act ... In the end, Mowat was forced to launch a suit against the St.  
Catherine's Milling Company which was cutting timber in the disputed area under a federal  
licence.  
[References omitted.]  
 Lovisek's report (Ex. 28) at p. 169:  
On September 30, 1884, Deputy Superintendent General of Indian Affairs, Lawrence VanKoughnet  
informed Sir John A. MacDonald by memorandum based on information received from the Indian  
Agent, McPherson, about game laws being applied to the Indians in Lake of the Woods (Keewatin)  
and Manitoba. VanKoughnet described the Indians in the District of Keewatin as:  
dependent altogether upon the chase for their living. If they are restricted from supplying the  
wants of themselves and their families with game during the close seasons they will have to  
be fed by the Department, and this system has never been introduced within the precincts of  
the Province of Manitoba as formerly constituted, nor the District of Keewatin. The Indians  
at present are fed by the forests and rivers and that which they raise in their gardens and  
farms.  
[Footnotes omitted.]  
 1885. In 1885, Ontario commenced litigation against the St. Catherine's Milling  
Company seeking an injunction and damages for illegally cutting timber on lands owned by  
Ontario.  
 Saywell's report, Ex. 137-2 contains the following at p. 34:  
Early in 1885, Mowat charged that the Company had cut timber illegally on Ontario lands and sued  
for an injunction and damages. The company had close connections with the Conservative party, and  
Mowat must have realized that Macdonald would either be a party to the suit or use the company as  
the Dominion's proxy.  
Part 11. Post-Treaty Events  
191  
 The experts disagreed on the use to be properly made of Ojibway complaints made years  
after the Treaty was signed.  
 Lovisek wrote in Ex. 28  
At p. 96:  
This memory record does not appear to have been transcribed to paper. The treaty terms memorized  
by the anonymous Indian Reporter were likely transmitted orally to other Saulteaux and may have  
been recorded indirectly in the form of written complaints, some of which survive in the historical  
record.  
At p. 145:  
The historical record contains a number of recorded grievances or complaints from the [Ojibway]  
about the non fulfillment of the terms of Treaty 3. These complaints routinely refer to restrictions on  
hunting and fishing, especially after the establishment of commercial fisheries in Lake of the Woods  
c. 1880s and after Ontario imposed game and fish regulations. From this corpus of historical records  
it is possible to access if partially, the understanding of the [Ojibway], and sometimes of both parties,  
particularly with respect to the taking-up clause.  
At pp 163-164:  
Although the Treaty 3 Indian Reporter's memory may be lost to history, the substance of what the  
Saulteaux remembered and understood remained alive and was recorded in their complaints.  
[Emphasis added; footnotes omitted.]  
 Chartrand gave evidence on January 19, 2010 at p. 115 that as time passed, and the  
Ojibway were subjected to outside influences, their recollections became less and less reliable.  
He used the term "feedback" to describe that phenomenon.  
 There was disagreement among the experts as to the effect of feedback in Ojibway  
communications recorded in English after 1873. As the Ojibway could not speak English, their  
communications were subject to filtering and editing by the scribe, often the Indian Agent.  
Therefore, all such communications have to be viewed with caution.  
 Further, as time passed and the Ojibway learned to read and write, their own recollections  
could have been affected by failing memories and information gained from learning to read and  
write, e.g., information gained from reading the Treaty.  
 In the mid-1880s, a clause forbidding ceremonials was inserted into the Indian Act.  
Potlatch laws, introduced in 1885, were used to suppress traditional ceremonial practices central  
to maintaining oral tradition. They seem to have restricted the Midewiwin as well, preventing the  
Ojibway from gathering in the usual areas. Federal legislation forbidding the Ojibway to practice  
their traditional ceremonies or even to speak their own language disrupted the chain of oral  
history handed down from generation to generation.  
 Von Gernet gave evidence about attempts made to stifle "Indianness," which in turn  
would have had the effect of hampering the passing on of oral tradition. Von Gernet's evidence  
on December 9, 2009 contains the following:  
Q. And particularly given the Potlatch Laws, which notionally on their face didn't apply to them, but  
were de facto applied to them, they weren't carried on as openly either?  
Part 11. Post-Treaty Events  
192  
A. Yeah, I think there was a general government tendency to frown upon any activities that were  
considered to be pagan, because they were an impediment to the civilization program they were  
pushing.  
Q. Right. Those activities tended to keep the Indian Indian rather than getting out of the way of  
them becoming white, so to speak?  
A. Yes.  
Q. And so again, those occasions would provide less of an opportunity for the passing on of oral  
traditions; is that fair?  
A. I think for the most part, you're correct in suggesting, if I hear you correctly, that the imposition  
either through coercion or subtle manipulation by -- on the part of the government of a certain  
civilization program, I think, contributed to an overall reduction in the ability for Aboriginal peoples  
to transmit their traditional knowledge from generation to generation.  
 Lovisek gave evidence on October 20, 2009 about the effect of the diminishment of the  
sturgeon fishery caused by commercial fishing in the Lake of the Woods and Rainy River areas  
and the introduction of the potlatch laws, at p. 71  
Q. Now, what ultimately happened to the Midewiwin society and to the Grand Council?  
A. … [S]everal things happened. In… the mid-1880s … a clause was inserted into the Indian Act  
which forbade ceremonials, especially ceremonials that involved dancing or giving away things. And  
although it was directed initially at the potlatch and the sun dance, it seemed to have captured the  
Midewiwin as well since the Indian agents were enforcing that in the Treaty 3 area. …this…  
restricted the Ojibway from gathering in the usual areas that they would for the Midewiwin.  
The second thing that happened was that their sturgeon fisheries were subject to depletion as a result  
of the introduction of commercial fishing in the 1880s, particularly by American commercial  
fisheries. And this affected the Lake of the Woods runs and those that ran into the Rainy River.  
So this reduced the necessity on the part of many to come to the Rainy River to engage in ceremonies  
which they could no longer engage in and also to participate to the same extent in the sturgeon  
fishing.  
 Whether or not it is of marginal relevance to understanding and intent in 1873, evidence  
of developments in the late nineteenth and the twentieth century is relevant to other issues here,  
including the continuing importance of Harvesting Rights to the Ojibway and the content of the  
obligations inherent in the Honour of the Crown.  
 1888. As noted earlier, Dawson, by this time a federal MP for Algoma, pointed out in a  
speech in the House of Commons in May 1888 that "it was stipulated that the Indians shall have  
the right of fishing all over the territory as they formerly had … that they were to be at liberty to  
hunt and fish in every direction." Prime Minister Macdonald promised to have his "Minister of  
Fisheries" look after this matter.  
 In his post-Treaty recollections of discussions concerning the Harvesting Clause, Dawson  
made no mention of any limitations on Harvesting, either by regulation or "taking up" by  
Canada. Although Dawson was specifically referring to fishing, allusions to harvesting included  
hunting, fishing, trapping and wild rice harvesting.  
Part 11. Post-Treaty Events  
193  
The St. Catherine's Milling Case  
 The St. Catherine's Milling case was heard between the spring of 1885 and late 1888 by  
eleven judges in three Canadian courts and the JCPC in England.  
 Chartrand set out some background in his report (Ex. 60) at p. 345:  
St. Catherine's Milling was a direct outcome of the Ontario-Dominion boundary dispute, as  
subsequently transformed into a jurisdictional dispute. The Ontario boundary location question had  
evolved between 1869 and 1884, and had been settled by the JCPC, without reference to the matter of  
Indian title or to Treaty 3:  
The Boundary Dispute was not begun as an assault on Aboriginal rights; rather, these rights  
were dragged into the protracted fray …  
[References omitted.]  
 Saywell gave evidence (April 6, 2009 at p. 100) that even as the St. Catherine's case was  
being heard, the judges involved recognized that the language of Treaty 3, i.e. reference to  
"taking up" by Canada, could raise further issues were Ontario to be held to be the owner of the  
land.  
 The JCPC's decision in St. Catharine's Milling, affirming Ontario's beneficial ownership  
of the Disputed Territory, was released on December 12, 1888.  
Negative Fallout Affecting the Treaty 3 Ojibway after the Release of the St. Catherine's  
Milling Decision/ Negative Repercussions of the Boundary Dispute on Treaty 3 Ojibway  
 1889. On January 17, 1889, a few weeks after the St. Catharine's Milling decision was  
released, Ontario Premier Mowat wrote to Dewdney, the federal Minister of the Interior  
responsible for Indian Affairs (Ex. 1, Vol. 12, tab 565), proposing that in the Disputed Territory,  
the Harvesting Clause in Treaty 3 be interpreted in the manner Ontario is now urging upon this  
Court:  
By the North West Angle Treaty No. 3 (3rd October '73) it was provided that the Indians would have  
the right of hunting and fishing throughout the surrendered territory subject to regulations by the  
Dominion Government except as to tracts required or taken up for settlement, mining, lumbering or  
other purposes. The meaning of course was that such matters should be determined by the authority,  
whatever it was, from which grants for settlement, &c., should come; and as this has now been  
decided to be the Province, the Province becomes the rightful authority to make grants, &c, free from  
the Indian right of hunting and fishing.  
[Emphasis added.]  
 I note that Mowat, in mentioning the wording of the Harvesting Clause in the Treaty,  
omitted to include the key words in respect of "taking up," namely "by the Dominion  
Government."  
 The experts disagreed as to Mowat's understanding of Ontario's legal position re "taking  
up" under the Treaty, although they agreed that Ontario and Canada agreed to negotiate re treaty  
allocation and "taking up" by Ontario.  
   
Part 11. Post-Treaty Events  
194  
 Ontario as owner challenged Canada's jurisdiction to establish reserves on Ontario's lands  
without its consent.  
 Morris died in October 1889.  
 On November 1, 1889, Tilton, Deputy Minister of Fisheries at the federal Department of  
Fisheries and the Deputy Supt. General Indian Affairs at the federal Department of Indian  
Affairs arranged for Indian officers at Rat Portage to be appointed as special fishery overseers,  
clothed with magisterial powers under the Fisheries Act to enforce the Fisheries Law and  
Regulations and to prevent fishing occurring, to the detriment of the Indians at Lake of the  
Woods on the Rainy River and at Lac Seul.  
 1890. By the 1890s, most of the Chiefs who had signed Treaty 3 in 1873 had died.  
 Lovisek's report (Ex. 28) contains the following at pp. 154-155:  
…Indian Agent E. McColl had received so many complaints or petitions from Chief Mawedopenais  
that McColl was relieved to report his and the death of other treaty chiefs in the 1890s.  
…The Indian Agent at Rat Portage [Kenora] Agency reported complaints by the Lake of the Woods  
chiefs in 1890:  
…
In July last I attended the annuity payments to the Indians of the Lake of the Woods, at  
Assabaskashing. Their spokesman, Chief Conducumewininie, came forward and, after the  
usual handshaking, addressed me as follows: "When the treaty was made with us at the  
North-West Angle we saw the lips of the Government moving, but now they are closed in  
silence, and we do not know what is done in the councils of our mother, the Queen. We see  
some one fishing out in the lake. Who is he and where does the evil spirit come from? Is he  
a big-knife (an American) from the United States? We wish our children and children's  
children to live, but he is destroying their food, and they will die of hunger. When we gave  
up our lands to the Queen we did not surrender our fish to her, as the Great Spirit made them  
for our special use.  
 Lovisek said that the Ojibway 1890 references to "the lips of the government moving"  
and to "the Councils of our Mother the Queen" were references to the Dominion government.  
"When we gave up our lands to the Queen," they were referring metaphorically to her.  
 Saywell's report (Ex. 137-2) contains the following:  
At p. 36:  
… the intensely personal Macdonald-Mowat feud which had been waged for a quarter of a century  
was over. Not only had Mowat won every battle with the federal government, but by 1890  
Macdonald was old and tired, obsessed with the politically divisive nation –threatening controversies  
around the Jesuit Estates Act, the Manitoba School question, and finally the reciprocity-loyalty cry  
election of March 1891. The old disputes with Ontario were left in the capable hands of John  
Thompson, one-time premier of Nova Scotia… In 1885 he had become minister of justice and by  
1890 was clearly the heir-designate. Although it is dangerous to speculate, Thompson seems to have  
felt that with the battle over the field should be cleared of all debris.  
…
At pp. 38-40:  
… it was not until 28 November 1890 that Thompson met with Mowat and other Ontario ministers …  
it seemed that Mowat was still wary of the federal government. Of the 24 matters which were  
Part 11. Post-Treaty Events  
195  
discussed … those concerning Indian Reserves and treaties were cast in the language and form of a  
draft agreement:  
3.  
Future Treaties with Indians for surrendering their rights to require the concurrence of the  
Province in which the lands lie by a Joint Commission. Mr. Mowat proposes that an Order in  
Council to that effect be passed by the Dominion and confirmed by [an] Act of Parliament….  
(1) The Ontario Government shall be a party to the selection of Reserves hereafter.  
(2) The Reserves are to be confirmed and established according as the Treaty stipulates.  
(3) A Joint Commission for the two Governments (Canada and Ontario) to be appointed to settle  
and determine any questions outstanding as to the Reserves, according to the rule stated in  
paragraph (2)  
…
Chartrand prefaced Item 4 with the comment, "The participants also agreed that responsibility  
for fishery regulations in the Treaty 3 territory (excluding waters forming parts of Indian  
Reserves) would be transferred from the Dominion to the Ontario government:"  
4. An Order in Council to be passed by the Dominion Government providing that the Regulations as  
to fishing in the territory covered by the Morris Treaty as thereby provided, other than on the  
Reserves for Indians, shall be made by the Government of Ontario as respects the lands of the  
Province, without prejudice to the jurisdiction of the Dominion Parliament with respect to Fisheries  
under the B.N.A act.  
5. The Fisheries Question/ A case to be settled for the Courts, Mr. Mowat is to have [a] draft made to  
be submitted for consideration. This requires [the] concurrence of Quebec.  
 The St. Catherine's decision had either highlighted or created a problem. Although  
Canada had exclusive jurisdiction to negotiate treaties, including making promises to create  
reserves, unless reserves were excepted at the time of the surrender in the metes and bounds  
description of the lands being ceded, the province that owned the land could object to the  
creation of reserves by the federal government on the basis that those reserves were being  
created on provincially owned land.  
 Although at the time the Treaty was signed, the Ojibway had chosen the lands they  
wanted for reserves, these were not excepted from the lands included in the metes and bounds  
description in the Treaty. [Reserves chosen in advance had been excepted from the lands  
included in the Robinson Treaties.] After St. Catherine's Milling was decided, Ontario took the  
position that it had absolute ownership of all the Treaty 3 lands, i.e., they had not consented to  
the use of its lands for the creation of the reserves. Ontario took the position that the federal  
reserve allocation that had already occurred years earlier was invalid, since Ontario had not  
expressly consented to it.  
 As mentioned earlier, reserves including gardens and sturgeon fisheries had been a key  
consideration in the making of Treaty 3. During the 1873 negotiations, Canada had specifically  
promised to protect existing Ojibway gardening and sturgeon fish areas along the Dawson Route  
by including them in reserves to be set aside for their own exclusive use. Canada had effectively  
Part 11. Post-Treaty Events  
196  
kept that promise in allocating the reserves that it had and in making the Rainy River Reserve  
Agreement.  
 Now, more than 15 years after the promises had been made, Ontario was calling into  
question those reserve allocations. The Ojibway were not advised, consulted or asked to make  
representations during the ensuing negotiations between Canada and Ontario, just as they had not  
been consulted or represented during the St. Catherine's Milling litigation.  
 After St. Catherine's Milling, Ontario put Ojibway Harvesting Rights in jeopardy, taking  
the position that as owner of lands in Ontario, it could extinguish their Treaty Harvesting Rights  
on lands simply by authorizing their use.  
 Chartrand's report, Ex. 60, contains the following at pp. 357-359:  
…On December 17, 1890, Lawrence VanKoughnet (Deputy Superintendent General) presented his  
assessment of the principles established at the November 28th conference to his superior, Edgar  
Dewdney (Superintendent General). Respecting the Treaty 3 issues quoted above, VanKoughnet  
indicated he essentially approved the principles agreed to, as follows:  
… The proposition contained in (3) for the appointment of a joint commission to settle any  
questions as to the establishment of the Reserves according to the rules laid down in  
paragraph (2) appears unobjectionable, provided that, as stated in clause (3), the Reserves as  
at present selected and surveyed be not interfered with, except some good reason presents  
itself for intervention.  
… However, VanKoughnet proposed that Lake of the Woods fisheries be reserved for the exclusive  
use of Treaty 3 Indians, on the grounds that these fisheries were vital to the basic subsistence of  
signatory bands and that severe interference by non-Aboriginal fishermen could endanger the well-  
being of Aboriginal communities:  
With regard to the subject of clause (4), namely that the fishery regulations be made by the  
Ontario government as respects all the territory belonging to that Government in Treaty 3  
outside of Indian reserves, the undersigned considers that it would be well if such power  
were vested in the Local Government, on the understanding, however, that as regards the  
fisheries of the Lake of the Woods, they should be reserved for the common use of the  
Indians of Treaty 3, as from this Lake they have always been in the habit of deriving their  
principal sustenance, and, should they be excluded therefrom, or should other fishermen be  
allowed to establish fisheries thereon, it would in either case prove most disastrous to the  
Indians.  
[Emphasis added; references omitted.]  
 That proposal was later replaced with one that exclusive fishing rights to waters between  
headlands adjacent to reserves be secured to the Indians. A provision to that effect was included  
in the 1891 Legislation but ultimately was not insisted upon by Canada. [The provision was  
removed in 1915.] (Chartrand's report, Ex. 60, at p. 358.)  
 In his Report, Ex. 60, Chartrand quoted at p. 224 from David T. McNab, The  
Administration of Treaty 3: The Location of the Boundaries of Treaty 3 Indian Reserves in  
Ontario, 1873-1915, as follows:  
The idea of headland to headland water boundaries for Treaty 3 Indian reserves in Ontario first  
appeared in the legislation of 1891 and then again in the 1894 agreement in the context of this  
Part 11. Post-Treaty Events  
197  
fisheries question, presumably as a panacea to retain some of the fishery in Lake of the Woods and  
some areas for the growing and harvesting of wild rice as food sources for the Ojibwa. By extending  
the existing shoreline boundaries to a line, drawn from headland to headland, the Indian reserves  
would be greatly increased in size and the Indian bands would have exclusive control of the fishery  
and wild rice in that area.  
 Counsel for the Plaintiffs quoted the November 18, 1890 report (Ex. 1, Vol. 12, tab 588)  
of E. McColl, Superintendent of Inspecting Indian Agencies, reflecting that thus far, attempts to  
"civilize" the Ojibway were proving fruitless:  
Only two of the thirteen life chiefs appointed in this agency at treaty time in 1873 are now living. The  
death of Blackstone, Mawintopenesse –[Mawedopenais]… and other prominent chiefs has effectually  
broken the by chain of traditional pagan observances, which exerted such a baneful influence over  
their deluded followers in preventing them from adopting the enlightened habits of civilization.  
 In cross-examination on January 19, 2010, Chartrand commented on that passage as  
follows at pp. 33-37:  
Q. … the author …is expressing the hope that finally by getting these old pagan chiefs out of the  
way, progress towards enlightened western behaviour will be soon to be seen. Is that fair?  
A. Yes, certainly a very ethnocentric statement, very much in line with what at the time was the  
general long-term goal of the Department of Indian Affairs, essentially pressing Aboriginal peoples  
towards cultural assimilation. And certainly the passing away of what appear to be a generation of  
key traditional religious leaders was seen as an opportune moment in implementing and in furthering  
cultural assimilation.  
 Canada and Ontario agreed that confirmation of the Treaty 3 reserves was to be the  
subject of further negotiations at a federal/provincial conference to be held in November 1890.  
 Chartrand in his report, Ex. 60, wrote at pp. 356-357:  
The Treaty 3 related matters discussed and provisionally agreed to by the Dominion and Ontario  
representatives at the November 28th conference, were reviewed by federal and Ontario officials in  
December 1890 and January 1891. Following an endorsement of a tentative Dominion-Ontario  
agreement establishing procedures for settling outstanding Treaty 3 issues, the respective  
governments enacted parallel legislation in the spring of 1891 confirming the need to negotiate a  
binding agreement.  
 1891. There were further drafts of the Agreement. On April 13, 1891 Thompson sent  
comments to Mowat on a draft of "the proposed agreement" including the following:  
… (4), "There should also, I think, be a stipulation by the provincial Government to confirm and  
secure to the Indians, by all means in its power, all and any rights and privileges intended to be ceded  
to them by the Treaty and as to which confirmation by the Ontario Government or Legislature may be  
necessary or desirable, and especially the rights and privileges in respect to hunting and fishing in the  
surrendered territory." [Emphasis added.]  
 Saywell's report (Ex 137-2) contained the following at pp. 38-40: "It would seem  
evident…that Mowat was not sympathetic to Thomson's concerns and rejected his proposed  
revisions. The bill that went to the Assembly a week later – on 21 April and was assented to on 4  
May 1891 – reflected neither." [Emphasis added.]  
 In the negotiations with Ontario after St. Catherine's Milling was decided, Canada did not  
consult the Treaty 3 Ojibway.  
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198  
 The Act for the Settlement of Certain Questions Between the Governments of Canada and  
Ontario, Respecting Indian Lands, to which I refer as the "1891 Legislation," was assented to on  
May 4, 1891.  
 The 1891 Legislation [Ex. 1, Vol. 13, tab 600 at pp. 174-175] not only gave Ontario the  
right to confirm reserves within the Disputed Territory and to be a party to any future treaties  
respecting lands in Ontario, but also contained the following Schedule relevant to the issues in  
this litigation:  
SCHEDULE  
Agreement made on behalf of the Government of Canada on the one part and on behalf of the  
Government of Ontario on the other part.  
Whereas by Articles of Treaty made on the third of October, one thousand eight hundred and  
seventy-three, between Her Most Gracious Majesty the Queen, by Her commissioners the  
Honourable Alexander Morris, Lieutenant Governor of Manitoba and the North-West Territories,  
Joseph Albert Norbert Provencher and Simon James Dawson, on the one part, and the Saulteaux tribe  
of the Ojibbeway Indians, inhabitants of the country within the limits thereinafter defined and  
described, by their chiefs, chosen and named as thereinafter mentioned, of the other part, which said  
treaty is usually known as the North-West Angle Treaty, No. 3, the Saulteaux tribe of the Ojibbeway  
Indians and all other the Indians inhabiting the country therein defined and described surrendered to  
Her Majesty all their rights, titles and privileges whatsoever to the lands therein defined and  
described on certain terms and considerations therein mentioned:  
And whereas by the said treaty, out of the lands so surrendered, reserves were to be selected and laid  
aside for the benefit of the said Indians: and the said Indians were amongst other things hereinafter  
provided to have the right to pursue their avocations of hunting and fishing throughout the tract  
surrendered, subject to such regulations as might, from time to time, be made by the Government of  
the Dominion of Canada, and saving and excepting such tracts as might, from time to time, be  
required or taken up for settlement, mining, lumbering or other purposes by the said Government of  
the Dominion of Canada or by any of the subjects thereof duly authorized therefor by the said  
Government.  
And whereas the true boundaries of Ontario have since been ascertained and declared to include part  
of the territory surrendered by the said treaty and other territory north of the height of land with  
respect to which the Indians are understood to make a claim as being occupants thereof, according to  
their mode of occupying, and as not having yet surrendered their claim thereto or interest therein.  
And whereas before the true boundaries had been declared as aforesaid the Government of Canada  
had selected and set aside certain reserves for the Indians in intended pursuance of the said treaty, and  
the said Government of Ontario was no party to the selection, and has not yet concurred therein.  
And whereas it is deemed desirable for the Dominion of Canada and the Province of Ontario to  
come to a friendly and just understanding in respect of the said matters, it is therefore agreed as  
follows:  
1. With respect to the tracts to be, from time to time, taken up for settlement, mining, lumbering  
or other purposes and to the regulations required in that behalf, as in the said treaty mentioned, it  
is hereby conceded and declared that, as the Crown lands in the surrendered tract have been  
decided to belong to the Province of Ontario, or to Her Majesty in right of the said Province, the  
rights of hunting and fishing by the Indians throughout the tract surrendered, not including the  
reserves to be made thereunder, do not continue with reference to any tracts which have been, or  
from time to time may be, required or taken up for settlement, mining, lumbering or other  
purposes by the said Government of Ontario; and that the concurrence of the Province of Ontario  
is required in the selection of the said reserves [Emphasis added.]  
2. That to avoid dissatisfaction or discontent among the Indians, full enquiry will be made by the  
Government of Ontario as to the reserves heretofore laid out in the territory, with a view of  
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199  
acquiescing in the location and extent thereof unless some good reason presents itself for a  
different course.  
3. That in case the Government of Ontario after such enquiry is dissatisfied with the reserves or  
any of them already selected, or in case other reserves in the said territory are to be selected, a  
joint commission or joint commissions shall be appointed by the Governments of Canada and  
Ontario to settle and determine any question or all questions relating to such reserves or proposed  
reserves.  
4. That in case of all Indian reserves so to be confirmed or hereafter selected, the waters within  
the lands laid out or to be laid out as Indian reserves in the said territory, including the land  
covered with water lying between the projecting headlands of any lake or sheets of water, not  
wholly surrounded by an Indian reserve or reserves, shall be deemed to form part of such reserve,  
including islands wholly within such headlands, and shall not be subject to the public common  
right of fishery by others than Indians of the band to which the reserve belongs.  
5. That this agreement is made without prejudice to the jurisdiction of the Parliament of Canada,  
with respect to inland fisheries under the British North America Act, one thousand eight hundred  
and sixty-seven, in case the same shall be decided to apply to the said fisheries herein mentioned.  
6. That any future treaties with the Indians in respect of territory in Ontario to which they have  
not hitherto surrendered their claim aforesaid, shall be deemed to require the concurrence of the  
Government of Ontario.  
[Emphasis added.]  
 I note that the wording of the 1891 Legislation did not track Mowat's wording suggested  
in his January 17, 1889 letter to Dewdney ("shall not and do not apply to lands which are or  
which shall be the subject of grants, licenses, sales or leases.") It referred to lands "taken up" by  
Ontario.  
 Edward Blake, during his preparations for Seybold in 1902, was quoted as saying "the  
Province secured so much, and conceded so little, under [the 1891 Legislation.]" (Saywell report,  
p. 42.)  
 Sir John A. Macdonald died in June 1891.  
 1892. In 1892, the Indian Department was reorganized. By then, the CPR had been  
completed. The Dawson Route was no longer being used. The importance of First Nations issues  
in general and Treaty 3 issues in particular had dwindled.  
 In 1892, Ontario began passing fisheries legislation affecting the Disputed Territory.  
Although s. 12 of the provincial Act for the Protection of Game and Fur-bearing Animals  
stipulated that provincial game laws were not to apply to Indians killing game for their  
immediate use and were not to be "construed to affect any rights specially reserved to or  
conferred upon Indians by any treaty or regulation in that behalf made by the government of the  
Dominion of Canada, with reference to hunting on their reserve or hunting grounds or in any  
territory specially set apart for the purpose, Ontario's game laws were not interpreted to exempt  
off-reserve Indian hunting and fishing in Ontario. In other words, off-reserve Treaty Harvesting  
Rights were not recognized by Ontario.  
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 To foster the Euro-Canadian commercial fishery, Ontario refused to license Aboriginal  
fisheries. (Chartrand, January 19, 2010 at p. 82.)  
 A letter dated July 18, 1892 (Ex. 1, Vol. 13, tab 608) addressed to the Superintendent of  
Indian Affairs, referred to a petition from the Chiefs of the Assabaskashing Agency. In Ex. 28,  
Lovisek referred to the following portion of that petition and opined it expressed their  
understanding of the identity of the parties to Treaty 3 and the promises made, at p. 155 as  
follows:  
…Now when the treaty was made, there were solemn promises that this allowance would last as long  
as an Indian live- At that time, the Governor was at the Angle and pointing towards the East, taking  
the name of the Queen to witness, he said that all the promises would be kept.  
Taking hold of a pan he said that we would eat of the same pan as brothers- How is it now that the  
Department is going back on these promises and upset down the pan?  
What is it that has turned up that things are to be changed?  
Now we want the pan to be turned up again and be brothers and receive what we were promised.  
Having kept faith with the Department it is only but fair that we should expect that they would keep it  
towards us. We have kept our part of the Treaty, is it not hard that the government should keep  
theirs?  
[Emphasis added; footnotes omitted.]  
The 1894 Agreement: Ratification of the 1891 Legislation  
 Chartrand's report, Ex. 60, contains the following at p. 361:  
The draft text of the agreement included with the reciprocal legislation was accepted, without  
revisions, as the final text of the agreement, signed on April 16, 1894, by Thomas Mayne Daly  
(Superintendent General of Indian Affairs) and John Morisson Gibson (Ontario Secretary and  
Registrar…)  
 Pursuant to the 1891 Legislation, the 1894 Agreement, upon execution, had (and has) the  
force of federal legislation.  
 I shall deal with the legal and Constitutional issues arising out of St. Catherine's Milling  
later in these Reasons in the sections on Answers to Question One and Two.  
 Suffice it to say here that in the negotiations that ensued after St. Catherine's Milling was  
decided, Canada agreed that Ontario would be allowed to extinguish Harvesting Rights by  
"taking up" lands in the Disputed Territory.  
 The experts disagreed as to whether the legal effect of the federal 1891 Legislation was to  
confirm that Ontario already could "take up" lands within the Disputed Territory under the  
Treaty, or whether the 1891 Legislation amended the Treaty to allow that to happen.  
 Counsel for Ontario submitted that the 1891 Legislation recognized Ontario's "pre-  
existing" right to "take up" lands under the Treaty.  
 
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201  
 Counsel for the Plaintiffs submitted that Canada negotiated away Harvesting Rights to  
which the Ojibway were previously entitled under the Treaty and passed the 1891 Legislation  
taking them away without any notice to the Treaty 3 Ojibway.  
 Vipond gave evidence that the 1891 Legislation was intended to solve the jurisdictional  
problems in the Disputed Territory that had arisen out of St. Catherine's Milling and Ontario's  
insistence that Canada did not have the power to allocate the Treaty 3 reserves within the  
Disputed Territory without its cooperation and consent.  
 Counsel for the Plaintiffs submitted that the 1891 Legislation was a settlement by Ontario  
and Canada in relation to the Disputed Territory only, negotiated at a time when Ontario had a  
clear upper hand and legal advantage arising out of the decision in St. Catherine's Milling.  
Canada apparently gave up Ojibway hunting and fishing rights on lands "taken up by Ontario" so  
Ontario would agree to confirm the reserves that Canada had promised to the Treaty 3 Ojibway  
and already purported to allocate.  
 Whether Canada had a duty to protect Treaty 3 Harvesting Rights more aggressively than  
it did during the 1890-1894 negotiations is not to be decided here.  
 1895. Lovisek's report (Ex. 28) at p. 165-6 reads as follows:  
On April 26, 1895, Dawson again wrote to the Deputy Minister of Indian Affairs, Hayter Reed about  
the subject of hunting and fishing rights in Treaty 3:  
[I]t was distinctly held out to them [the Indians] by the Commissioners acting for the  
Government [Treaty 3] that they would have the right to pursue their ordinary avocations of  
hunting and fishing throughout the tract they were about to surrender and stipulation  
embodying this understanding appears in the Treaty (No. 3). …  
Dawson expressed what he thought the Saulteaux had understood:  
I was one of the commissioners appointed by the Government to negotiate a Treaty with the  
Saulteaux of the Ojibbeway Indians and as such was associated with Mr. W.M. Simpson in  
1872, and subsequently acted in the same capacity with Lieut: Governor Morris and Mr.  
Provencher in 1873. … In those days it was never contemplated that there would be such a  
run on their fisheries by the white man as has since occurred. Otherwise, the clause in favour  
of the Indians would have been made stronger. However, in view of the stipulation it could  
never in reason or justice have been supposed that the Government, through the commission,  
had intended to deprive the Indians of their chief means of subsistence, and it would be  
difficult to find any justification for the manner in which the Indians , more especially those  
of Rainy River and the Lake of the Woods, have been treated in regard to their fisheries …  
 Dawson again was reiterating that the Commissioners had expected compatibility  
between Ojibway harvesting and Euro-Canadian uses, and that they had not expected that the  
Ojibway would be subjected to resource depletion as a result of Euro-Canadian uses. He  
expressed the view that for Canada to allow it would be unjustifiable.  
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202  
The Annuities Case (heard 1903-1910)  
 Lord Watson commented in St. Catherine's Milling: "Seeing that the benefit of the  
surrender accrues to her, Ontario must, of course, relieve the Crown and the Dominion of all  
obligations involving the payment of money."  
 In 1903, Canada sued Ontario for such indemnity.  
 The reasons of Burbidge J., the trial judge, were delivered March 18, 1907 and included  
the following:  
The question of obtaining the surrender of the Indians title in the lands described in the North West  
Angle Treaty No. 3, was in 1870, when Rupert's Land and the North-Western Territory were  
admitted to the Union, a very urgent and pressing one, not because lands were at that time required or  
deemed to be desirable or available for settlement, but because it was necessary for the good  
government of the country to open up and maintain through such lands a line or way of  
communication between the eastern and settled portions of Canada and the great and fertile western  
territory that was added to the Dominion.  
 In 1910, the JCPC agreed that Canada's principal purpose in obtaining Treaty 3 was not a  
surrender of the lands. Even though they were part of the same Crown, the interests of Canada  
and Ontario were different. Lord Loreburn on behalf of the JCPC wrote:  
To begin with, this case ought to be regarded as if what was done by the Crown in 1873 had been  
done by the Dominion Government, as in substance it was in fact done…. When differences arise  
between the two Governments in regard to what is due to the Crown as maker of treaties from the  
Crown as owner of public lands they must be adjusted as though the two Governments were  
separately invested by the Crown with its rights and responsibilities as treaty maker and as owner  
respectively.  
…
…The Dominion Government were indeed, on behalf of the Crown, guardians of the Indian interest  
and empowered to take a surrender of it and to give equivalents in return…  
[Emphasis added.]  
Relations Between Ojibway and Euro-Canadians 1909-1912  
 Lovisek's report (Ex. 28) contains the following at pp. 155-156:  
In 1909, the Chiefs and Councillors of the Rainy River, Rainy Lake and Seine River Bands  
understood that the treaty protected their hunting and fishing, but that they were experiencing active  
opposition to their attempts to make a living from hunting and fishing. On April 9, 1909 the Chiefs  
and Councillors prepared a petition to Frank Oliver, Minister of the Interior and Superintendent  
General of Indian Affairs, the Chiefs and Councillors:  
We wish to lay before you our business and troubles ... We are not seeking anything new but  
only want our dues between us our fathers and this Government at North West Angle in the  
year 1873 ...  
We also wish to Fish for ourselves all the year and no reserve seasons for us. It's our daily  
food.  
   
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203  
We don't want to be stopped and Game Inspectors cutting our lines and taking our nets. It is  
in our Treaty Papers. You are not right to take our privilages [sic] away. We do not molest  
your interests. We only want to live.  
Again we have allowed you to build Dams and Power works unmolested ...  
Now for Hunting  
We have no hunting grounds. Our privilages [sic] were never taken from us by Treaty  
Agreement. We may not kill moose without someone interfering and being stopped. We  
want to know the reason why? The White Man's laws are all right for them - we live and let  
live in our hunting they do not, just shoot to destroy. The time has now come to have an  
understanding. Are we to be treated as white men? Are your words or the word of the Great  
White Queen our Mother to be as smoke? We trust you will still remember the Queen's  
man's word is his bond.  
On September 29, 1909, the Chief of the Couchiching Reserve complained directly to Frank Oliver,  
Superintendent General of Indian Affairs about the Treaty:  
By the treaty made in 1873 with our most gracious Queen, Her Majesty agreed with us that  
we should have right to pursue our avocations of fishing throughout the tract surrendered,  
but in our day, this right amounts to nothing, because the Rainy Lake in front of our  
reservations is nearly depopulated. We positively know that nearly every day, more than two  
or three [car]loads of fish coming from the Rainy Lake have been shipped by American  
companies out from Ranier to Chicago and New York. Americans are fishing all the time in  
Canadian waters. Is there no remedy to this fraud? If not, where will we get our fish in a  
very near future?  
[Emphasis added; footnotes omitted.]  
The Background to the Annexation of Keewatin to Ontario in 1912  
 Only the southern 2/3 of the Treaty 3 lands were in the Disputed Territory. Before 1912,  
Keewatin, where the traditional harvesting lands at issue in this litigation are located, was not  
part of the Disputed Territory but was under the beneficial ownership and administration of  
Canada. Before 1912, the federal government had exclusive jurisdiction over Treaty Rights  
under s. 91(24) as well as jurisdiction to authorize all land uses within Keewatin.  
 In 1912, Keewatin was annexed to Ontario using the process mandated by the  
Constitution Act, 1871. Section 3 provided as follows:  
The Parliament of Canada may from time to time, with the consent of the Legislature of any Province  
of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon such  
terms and conditions as may be agreed upon to by the said Legislature, and may, with the like  
consent, make provision respecting the effect and operation of any such increase or diminution or  
alteration of territory in relation to any Province affected thereby.  
[Emphasis added.]  
 The parties disagreed as to whether the 1891 Legislation applied to Keewatin after its  
annexation to Ontario in 1912.  
 Counsel for Ontario submitted that at the moment of annexation, the 1891 Legislation  
started to apply in Keewatin, permitting Ontario, after first obtaining authorization from Canada,  
 
Part 11. Post-Treaty Events  
204  
to limit or extinguish Harvesting Rights under s.1, which provided that the rights of hunting and  
fishing by the Indians did not continue in respect of lands taken up by Ontario.  
 Counsel for the Plaintiffs submitted that the Defendants have not demonstrated and there  
is no good reason to conclude that in 1912 the Dominion had a clear and plain intent to  
extinguish previously unaffected Treaty Harvesting rights in Keewatin. The 1891 Legislation did  
not apply in Keewatin. There is no good reason to imply that Parliament intended to extinguish  
any aspect of Treaty Rights conferred under Treaty 3. Rather, there is good reason to conclude,  
based on the evidence and the wording of the 1912 Legislation, that Canada intended to preserve  
Treaty Rights.  
 The 1912 annexation of Keewatin resulted after Manitoba proposed to extend its  
boundaries, and Ontario then sought to do likewise and to secure a port on Hudson's Bay.  
(Saywell, April 7, 2009; Ex. 1, Vol. 7, tabs 108 and 111.)  
 Vipond's report (Ex. 123) describes the circumstances at pp. 19-21:  
In contrast to the twenty-year, all-out struggle over Ontario's western boundary, the re-definition and  
extensionof Ontario's northern boundary in 1912 seems like a sort of geographic codicil, much less  
contentious in nature and much swifter in resolution. Actually, the northern extension was a classic  
case of "federalism dominoes." When the Laurier government created the provinces of Alberta and  
Saskatchewan, it chose to make the 60th parallel the northern boundary. …The government of  
Manitoba… lost no time in asserting its claim to a northern extension of Manitoba that would match  
the northern exposure of Alberta and Saskatchewan. Manitoba was especially keen to have access to  
Hudson's Bay… Not to be outdone, Ontario then petitioned the federal government to have its  
northern boundaries extended to include the Keewatin Lands… Under the circumstances, Laurier  
could hardly extend Manitoba's boundary without doing the same for Ontario … Thus, in 1908, the  
federal government announced that it would introduce boundary legislation … to Parliament, but  
negotiations … became so rancorous that the deal fell apart. With the election of the Borden  
government in 1911, both the personal and partisan complexion of the federal government changed,  
and in February 1912 the federal government introduced legislation into Parliament extending the  
northern boundaries of Manitoba, Ontario …  
 Saywell's report (Ex 137-2) sets out the agreement between Ontario and Canada reached  
in February 1912, at pp. 55-56:  
Ontario would not get its port, but would get access to one or more ports on the Bay. Ontario received  
a strip of land five miles wide from the boundary of … Manitoba to the Nelson River… The  
province would also receive a further strip along the Nelson to its mouth and such foreshore as might  
be necessary for port facilities. Moreover, if the terminus of the proposed Hudson Bay Railway was  
at Port Churchill, and if Ontario wished to use it as its terminal as well they would be given a right of  
way.  
 On February 5, 1912, just before agreement was reached, Prime Minister Borden  
requested his Deputy Minister of Justice Newcombe to answer questions about possible  
implications of the annexation of Keewatin to Ontario (Ex. 127.) Newcombe responded to  
Borden's questions on February 12, 1912 (Ex. 128.) Vipond was referred in evidence to  
Newcombe's opinion and then cross-examined on February 25, 2010 on it, as follows:  
At p. 124:  
Q. [reading from Newcombe's opinion]  
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205  
I think, nevertheless, that the words will bear a construction broad enough to justify a  
stipulation for the protection of minorities …  
At p. 126:  
Q. But what I'm going to suggest to you … there is a history of the division of powers between the  
federal government and the provincial government as being informed, at least in part, by an interest in  
protecting local minorities?  
A. Yes.  
At pp 127-128:  
Q. …we can use these two documents [Exhibits 127 and 128] to get a sense of what was concerning  
Borden …about the ability to impose conditions on the extension of a provincial boundary …and …  
by looking at Newcombe's response, we can also get a sense of what Borden and Newcombe would  
have understood … about that power…?  
A. Yes.  
Q. And to the extent that this is immediately proximate to a statute imposing terms and conditions on  
an extension of a boundary, it does give us a sense of what kinds of purposes and intentions Borden,  
Newcombe and the others in government may have intended?  
A. I think that's fair.  
At p. 129:  
Q. … Newcombe is suggesting that, in fact, the federal government can hold back part of its powers  
when it's making a transfer … to a provincial government -- by means of the imposition of terms and  
conditions?  
A. Yes.  
At pp. 130-131:  
Q. Now going on to the second question:  
"Has Parliament in any such Act enlarging the boundaries of a Province…[the power] to  
modify the division of powers?"  
"In my opinion Parliament cannot on such an occasion divest itself of any of its distinctive  
powers, or assume any of those of the legislature, although reasonable limitations may, as  
terms or conditions of union, be imposed upon the execution of provincial powers, and  
possibly special powers may be reserved to the Dominion."  
That's Newcombe's answer to the division of powers question, correct?  
A. Yes.  
Q. And this is consistent … with the view that even after the extension lands are added, those things  
that are in federal jurisdiction generally -- let's take fisheries, for example -- remain in federal  
jurisdiction, correct?  
A. Yes. …  
Q. …Indian Affairs was a federal jurisdiction before the extension and is a federal jurisdiction after  
the extension? …  
A. Fair enough.  
 Saywell's report, Ex. 137-2 contains the following at p. 56: "During seven years of prime  
ministerial discussions and diplomacy there had been no discussion, or even mention, of the  
Indians in Keewatin." He gave evidence on April 7, 2009 that in his research of the historical  
documents generated early in the consideration process of the 1912 annexation, he found no  
mention of Treaty 3, at pp. 185-188:  
Q. [Y]ou don't find anywhere in the debates in Parliament … Laurier or Borden expressing the view  
that the Treaty 3 rights were going to be changed in any way?  
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206  
A. I don't recall.  
Q. And you don't recall any mention of them saying that the Treaty 3 rights were going to be  
extinguished, for example?  
A. No.  
Q. Or that the powers of the federal government around Treaty 3 were going to be changed?  
A. Well, since Treaty 3 hadn't been mentioned there couldn't be any mention of that, could there?  
Q. And the same in the cabinet documents that we see, there is no discussion of extinguishing Treaty  
3 rights, correct?  
A. No.  
 Saywell's report, Ex. 137-2 contains the following at p. 57:  
However, the Indians had been on the mind of officials in the Department of Indians Affairs. After  
the passage of Laurier's Resolution in 1908 the official concern worked its way up through the  
bureaucracy to a Report to a Committee of the Privy Council from the Superintendent General of  
Indian Affairs approved on 17 January 1910:  
In a memorandum dated 6th December, 1909, from the Superintendent General of Indian  
Affairs, stating that the proposed extension of the boundaries of the Provinces of Manitoba,  
Ontario and Quebec…renders it expedient that full and careful attention should be given to  
the Indian claims on the territory proposed to be annexed to the Provinces and that  
representations should be made to the Governments of the said Provinces to ensure their  
favourable consideration.  
[Emphasis added.]  
 Vipond said the first mention he found of Indians in the record was in a report to the  
Privy Council (tab 751) dated January 17, 1910. During his evidence on February 25, 2010,  
Vipond said that as of January 17, 1910, Ontario's focus was on the question of unceded lands.  
There was no mention of Treaty 3.  
 Vipond was then referred to a September 20, 1911 memorandum from the Deputy  
Minister to the Minister of Lands re Indian Affairs containing the following: "As directed by  
you, I have made a careful search for all papers, regulations and documents relating to the  
management of Indian affairs, and I have brought together a large collection which I think will  
cover all that is of importance in connection with Indian affairs." It mentioned Treaty 3 as  
follows: "[T]here are a great many reserves covered by Treaty No. 3, which have never been  
definitively approved or accepted by the Ontario Government. It would be well if this question  
could be taken up and settled as soon as possible." In the same memo, the Deputy Minister raised  
the following issue:  
There is the interesting question of the language of the treaties with respect to hunting and fishing on  
wild lands. Are these treaty obligations void when the land comes under the Province, or has the  
Indian any rights or privileges under the various treaties which places him in a different position from  
the white man with respect to the killing of fish and game.  
 Vipond opined on February 25, 2010 that the Deputy Minister was raising a concern  
about ensuring that the Treaty Rights would continue if the Treaty 3 land came under provincial  
administration.  
 After the agreement was reached in February 1912, the newly elected government of  
Borden prepared legislation to move the extension forward.  
Part 11. Post-Treaty Events  
207  
 Saywell's report, Ex. 137-2, contains the following at p. 56: "The existence of Section  
2(a) came as a surprise to Whitney when he first saw the bill."  
 On March 5, 1912, Whitney wrote (Ex. 1, vol. 1, tab 780) to Cochrane, leader of the  
Ontario Federal Conservative caucus in Ottawa, seeking information about references in the  
proposed bill to Indians, and asking Cochrane to explain any obligations Canada was asking  
Ontario to assume. (Saywell, April 7, 2009.)  
 Cochrane responded on March 8, 1912 to Whitney as follows (Ex. 1, tab 782): "My  
understanding is that when Ontario wishes to take possession of the land they must settle with  
the Indians in the same manner as I understand was done when the last treaty was made, and  
which Honorable Colonel Matheson handled."  
 It appears from that letter that Cochrane alerted Whitney only to the issues relating to  
unceded title and Treaty 9. He did not mention Treaty 3 rights. (Saywell, April 7, 2009.)  
 Counsel for Canada submitted that Ontario would not have agreed to annexation knowing  
that it could not "take up" lands in Keewatin without the authorization of Canada. (See the  
section of these Reasons on Canada's Devolution Argument.)  
 In Ex. 123, Vipond said that he was asked "On the basis of your knowledge of Canadian  
political thought after Confederation, would Ontario have accepted the transfer of the Keewatin  
Lands in 1912 if Ontario had thought that Ontario could not 'take up' or authorize the 'taking up'  
of tracts of land in the Keewatin Lands following the transfer of those lands to Ontario?" His  
answer was "No." It is clear from the historical record that Ontario would never have accepted  
constraints on its ability to "take up" tracts of land in Keewatin because the ownership, control  
and disposition of land was utterly central to the province's post-Confederation development  
strategy."  
 Vipond gave evidence in chief that had there been qualifications or conditions in 1912  
that required or allowed the ongoing supervision of the federal government over such actions, it  
"would have been a big deal." Ontario would not have accepted any supervision. However, he  
agreed in cross-examination that so long as Canada was acting under a valid federal jurisdiction,  
even the provincial autonomists would not have viewed Canada's actions as unacceptable  
supervision. His expertise did not permit him to comment on whether Ontario's title was  
burdened by or qualified on account of Indian rights (February 23, 2010 at pages 44, 51 and  
127.)  
 Obligations assumed by Ontario with respect to the Treaty 3 lands in Keewatin differed  
significantly from those eventually assumed by it in respect of Treaty 9 upon annexation. As  
mentioned earlier, in 1910 the JCPC had in the Annuities Case denied Canada's claim for  
indemnity for payment of Treaty 3 annuities.  
 Vipond opined on February 25, 2010 that Ontario benefited from the annexation. It  
agreed to accept the transfer of the Keewatin Lands subject to conditions that Canada imposed,  
including conditions relating to Indian rights. Ontario accepted the lands subject to the condition  
Part 11. Post-Treaty Events  
208  
that it would have to negotiate a treaty with the Indians in the unceded territories, which had to  
be approved by the Federal Governor-General in Council. Ontario understood and agreed it  
could not patent or license unsurrendered lands in the territory annexed in 1912 until those lands  
had been surrendered. Had the Government of Canada refused to give its approval, then Ontario  
would not have been able to sell or lease the land. Ontario agreed to pay the costs of future  
treaty-making.  
 The first and only document Saywell found that did refer to Treaty 3 was a memorandum  
to Pedley, Deputy Superintendent General of Indian Affairs dated March 11, 1912 (Ex. 1, tab  
783), mentioning Canada's requirement that Ontario confirm Treaty 9 reserves and pay Treaty 9  
annuities. (Saywell, April 7, 2009.)  
 Vipond referred to the same memo and opined that by March 11, 1912, the Department  
of Indian Affairs was aware of the fact that some of the land to be annexed to Ontario was Treaty  
3 land. (February 25, 2010 at p. 96.)  
 The Ontario Boundary Extension Act, 1912 included what counsel for the Plaintiffs  
submitted were the following terms and conditions imposed by Canada:  
2(a) That the province of Ontario will recognize the rights of the Indian inhabitants in the territory  
above described to the same extent, and will obtain surrenders of such rights in the same manner, as  
the Government of Canada has heretofore recognized such rights and had obtained surrender thereof,  
and the said province shall bear and satisfy all charges and expenditure in connection with or arising  
out of such surrenders;  
(b) That no such surrender shall be made or obtained except with the approval of the Governor in  
Council; and  
(c) That the trusteeship of the Indians and the said territory, and the management of any lands now or  
hereafter reserved for their use, shall remain in the Government of Canada subject to the control of  
Parliament.  
 Vipond opined that nothing in paragraphs 2(b) or 2(c) of the 1912 Legislation limited  
Indian title.  
 Saywell gave evidence on April 7, 2009 from a historical perspective that the framers of  
the Boundary Extension Act, 1912 did not intend to amend/abrogate Treaty 3 rights. Its words  
reflect Canada's recognition that it was a trustee of the Indians and that it had a continuing  
responsibility to them:  
Q. …I'm showing you … the three clauses that you've cited (a), (b) and (c) appear at the end of 2,  
correct? … Now, I want to understand what you're saying in terms of your opinion of what section (a)  
means. There is no doubt that there the reference to surrenders of rights and the costs of such  
surrenders is a reference to the unceded lands; is that correct?  
A. I understand, yes.  
Q. So, the Province of Ontario recognizing the rights of the Indians, do you say that that doesn't  
include the Treaty 3 rights or does it include any rights of the Indians in your understanding?  
A. My understanding is that it makes no specific reference to the rights in the Treaty 3 area that will  
be added to Ontario… There is neither a reference including or excluding.  
Q. And in paragraph (c) there is this phrase "the trusteeship of the Indians in the territory shall  
remain in the Government of Canada subject to control of parliament." I take it that that's an  
Part 11. Post-Treaty Events  
209  
assertion of the continued responsibility of parliament for the Indians as a subject matter under s.  
91(24); is that fair?  
A. Yes.  
…
Q. … But as a general rule, when we are looking at (c) … Ontario took the view that Canada was  
responsible for the Indians and their affairs; isn't that correct?  
A. Yes.  
Q. And that reference to the trusteeship of the Indians I take it is meant to be a general assertion or  
reference to Canada's responsibility for the welfare and guardianship of the Indians if you wish?  
MR. STEPHENSON: And just if I could, I presume that question is intended from a historical  
perspective. You're not asking him to interpret the statute per se.  
BY MR. JANES:  
Q. I'm not asking him to give a legal opinion on this. This word "trusteeship" of the Indians doesn't  
appear in the Constitution and I am trying to figure out what kind of meaning it might have had.  
A. The word "trustee" and "trust" is certainly mentioned emphatically and explicitly in the post-  
Confederation establishment of the department responsible for it, that is, the department of the  
Secretary of State. Langevin mentions that, and McDougall also mentions who speaks on the seventh  
resolution of the address to Her Majesty, December 1867, of the particular under 91(24)  
responsibility of the central government. So that there is a -- there was a constant reference to this  
idea and this word trusteeship, wards, and so on.  
Q. So, this fits into the continuum of words that you see in relation to the relationship to the federal  
government of the Indians where you'll see the relationship described, for example, as the Indians are  
the wards of the federal government; is that fair?  
A. In political debate, yes.  
[Emphasis added.]  
 The 1912 Legislation itself made no specific reference to Treaty 3 rights.  
 My legal conclusions regarding the effect of the 1912 annexation of Keewatin on Treaty  
3 Harvesting Rights are set out in the section of these Reasons entitled "Answer To Question  
One."  
Confirmation of Reserves and Other Developments- 1915  
 The worst long-term negative effects of the Boundary Dispute and the St. Catherine's  
Milling decision on the Treaty 3 Ojibway were not felt by the Treaty 3 Ojibway until 1915.  
 As noted earlier, in the years immediately following 1873, there was evidence that  
Canada took active steps to implement and enforce the Treaty.  
 Soon after the Treaty was signed, Pither was appointed under the Dominion Lands Act to  
enforce timber regulations and prevent abuses by Euro-Canadians. He was later also given  
magisterial power under the Fisheries Act to enforce Ojibway fishing rights. The federal  
Fisheries Department instituted a policy with Indian Affairs whereby Indian Agents at Rat  
Portage (Kenora) would be special fisheries overseers. Senior Ministers in the federal  
government urged the United States to control American fishing on the Lake of the Woods. A  
message signed by the Minister of the Interior and Minister of Fisheries was forwarded, urging  
the Americans to restrain their appetite for Lake of the Woods fish "in order to conserve the  
fisheries as a means of livelihood to the Indians."  
 
Part 11. Post-Treaty Events  
210  
 On the ground in the Treaty 3 area, Dawson and Dennis, the federal Surveyor General,  
worked to address the problems that had arisen in the reserve creation process. Dennis negotiated  
the Rainy River Agreement mentioned earlier, creating reserves and recognizing and protecting  
Ojibway fisheries.  
 The federal government proposed to reserve the right to fish commercially in the Lake of  
the Woods only to the Indians, and banned use of pound nets by white fishermen. (Muirhead,  
"The Ontario Boundary Dispute and Treaty 3 1873-1915," p. 11.)  
 These actions were all indicative of a federal willingness to go beyond the Indian  
Department and enforce Treaty Harvesting Rights on a multi-departmental basis, in some  
instances even in preference to Euro-Canadian harvesting rights.  
 In the few years following Confederation and after 1873, the federal government also  
used its powers to advocate on behalf of the Indians with respect not only to on-reserve but also  
off-reserve matters.  
 When sturgeon stocks were being depleted, Dawson and Prime Minister Macdonald  
spoke out in Parliament about protecting fisheries for the Ojibway. Macdonald promised to have  
his Minister of Fisheries look after this matter "within [Canada's] Constitutional powers."  
 Canada's post-Treaty activities protecting Harvesting Rights between 1873 and about  
1892 involved federal departments other than the Department of Indian Affairs, including the  
Department of Fisheries and the Dominion Lands Department. Prime Minister Macdonald  
himself was vocal in protecting the Indians.  
 Canada's conduct in the years that immediately followed the Treaty was consistent with  
an understanding that it owed the Ojibway a duty to implement and enforce the Harvesting  
promises made to induce them to enter into the Treaty.  
 When the Ojibway complained about problems in Treaty implementation and  
enforcement, initially the federal government did act. Dennis promised that well-grounded  
complaints would be remedied. Dominion employees Pither, Dawson and Dennis attempted to  
address their complaints. Canada set up reserves as promised, including the gardens and sturgeon  
fishing areas for their exclusive use. It paid annuities. Twine, ammunition and agricultural  
implements were supplied.  
 In the years preceding St. Catherine's Milling, most of the Treaty 3 area was administered  
by Canada under the 1874 Provisional Agreement. The federal government coordinated land  
granting and Indian policy through the Board of Commissioners charged with managing Indian  
Affairs. That Board included both the Commissioner of Indian Affairs (at first Provencher) and  
the federal Commissioner of Lands.  
 Lovisek's evidence and Chartrand's cross-examination on Muirhead's article, "The  
Ontario Boundary Dispute and Treaty 3: 1873-1915" (contained in the secondary source  
collection of documents) cast light on the federal government's early but apparently short-lived  
Part 11. Post-Treaty Events  
211  
willingness to stand up for Treaty 3 Rights and on its waning attendance to them as time passed.  
What had been federal priorities/"burning issues" in 1873 were becoming less pressing after the  
CPR had been built and the Dawson Route had fallen into disuse.  
 Muirhead's article contains the following:  
At p. 12  
Clearly the federal government recognized its treaty obligations in the early 1890s. … Even more  
surprising was Ottawa's willingness to appoint special fisheries officers to enforce its regulations in  
favour of the Indians and against white fishermen. Unfortunately for the Natives, this federal  
determination to observe its responsibilities under Treaty 3 was short-lived.  
…
By 1892 a number of factors served to cause a change in government policy. The death of Prime  
Minister Macdonald removed a defender of Treaty 3 prerogatives from the federal scene…  
That year Concession 5 of the Lake of the Woods was opened to gill and pound nets.  
At p. 15:  
Perhaps it was more than symbolic that the Deputy Superintendent of Indian Affairs for 18 years was  
forced out of office … in 1892. Further, the Department underwent a debilitating reorganization.  
 Chartrand was cross-examined on January 25, 2010 on the Muirhead article:  
Q. … Professor Muirhead … goes on to discuss how the Department of Indian Affairs became  
marginalized, once, I suggest to you, effectively the Indians' right issues could no longer be used to  
advance other federal agendas.  
A. Yes, that's correct. He makes the point.  
Q. …I'm going to suggest to you that's a point that does have support in the overall factual matrix;  
isn't that fair?  
A. Yes, I agree that there's some support for the position. ...  
Q. ...Professor Muirhead's conclusion, in the paper that you've cited from, that ultimately the "Indian  
rights as negotiated under treaty were ignored as governments pushed ahead with …other agendas?"  
…
A. Oh, yes, he actually uses the term [ignored.] I consider it a bit strong, because we do have some  
evidence that the federal government made attempts to protect treaty rights and look after the welfare,  
the well-being, of Aboriginal peoples. But -- so I think where I would diverge from Professor  
Muirhead is simply in terms of the strength of the language that he uses.… In my opinion, I'd say that  
the interests were simply not recognized and pressed, pressed forth, very strongly, but to say that they  
were simply omitted altogether is a bit strong, because we do see efforts being made.  
At pp 13-14:  
Q. And then Professor Muirhead's opinion, starting at the bottom of … page 12…:  
Unfortunately for the Natives, however, this federal determination to observe its  
responsibilities under Treaty 3 was short-lived. Instead, the government became more  
concerned over the rising costs of Indian administration.  
Now, that's an observation by Professor Muirhead.  
A. Yes.  
Q. And won't you agree with me that there's some basis in what we see of governments' conduct  
post-Treaty to support this?  
A. Yes.  
 I have found that in 1873, Morris intended and I have referred to his correspondence  
underlining how important it was for Canada to keep its promises.  
Part 11. Post-Treaty Events  
212  
 Even after Canada was the loser in St. Catherine's Milling, when it negotiated with  
Ontario about confirming the location of the Treaty 3 reserves, it extracted at least two  
significant concessions from Ontario contained in the 1891 Legislation, which if they had been  
honoured in the long term, would have protected Treaty Rights:  
1.…to avoid dissatisfaction or discontent among the Indians… full enquiry will be made by Ontario  
as to the reserves heretofore laid out in the territory with a view of acquiescing in the location and  
extent thereof unless some good reason presents itself for a different course; and  
2. …in the case of all reserves so to be confirmed, the waters within the lands…laid out…as Indian  
reserves, including land covered with water lying between…headlands, …shall be deemed to form  
part of such reserve…and shall not be subject to the public common right of fishery by others than  
Indians of the band to which the reserve belongs.  
[Emphasis added.]  
 Unfortunately, by 1915, as Lovisek said on October 23, 2009 at p. 28, even those two  
concessions were no longer being enforced. Ontario unequivocally refused to confirm 7 of 8  
reserves on the Rainy River containing prime agricultural land and insisted the Ojibway be  
removed from them. It refused to implement several of the promises the federal Commissioners  
had made to the Treaty 3 Ojibway to induce them to enter into the Treaty, including the promise  
that their gardens in the Rainy River area would be included in the reserves set aside for their  
exclusive use. Ontario took the position that fertile lands the federal government had already  
allocated to the Ojibway in the Rainy River area should be made available to Euro-Canadian  
settlers. It asserted that the reserves that had been allocated to the Ojibway were standing in the  
way of development and progress. By 1915, the Ojibway had lost 89% of their agriculture base.  
 Lovisek summarized the negative consequences of the Boundary Dispute on the Treaty 3  
Ojibway in her report (Ex. 28) at p. 21 as follows:  
…Throughout the protracted legal proceedings they [Ojibway/Salteaux] were never advised,  
consulted, or represented  
[A]fterwards, Ontario refused to confirm the reserves … Some Saulteaux located at Sturgeon Lake  
(now Quetico Park) were forced at gun point to leave their reserve in the middle of winter.  
[Emphasis added. Footnotes omitted.]  
 Muirhead wrote:  
At p. 19:  
Toronto was concerned that Indian reserves not interfere "with the proper settlement of the territory  
by a white population, especially on the Rainy River …"  
At p. 21:  
In 1915 Act to Confirm the Title of Government of Canada to certain lands and Indian Lands. Indians  
had lost reserves at the mouth of Rainy River, the Wild Lands Reserve, Reserves 14 and 37, and the  
Hungry Hall Reserve where the Rainy River flowed into Lake of the Woods. The province…  
demanded the lands be sold and surveyed for resale to settlers. They were on record as encouraging  
the sale of all reserves along the River.  
 The 1915 Act to Confirm the Title of Government of Canada to certain lands and Indian  
Lands does not make clear on its face what really happened. It makes it appear that Ontario did  
confirm the Rainy River reserves. It reads in part as follows:  
Part 11. Post-Treaty Events  
213  
…and whereas in pursuance of the terms of an agreement dated 16th April, 1894, between the  
Government of Canada and the Government of Ontario, the Government of Ontario has made full  
enquiry as to the said reserves so laid out, and it has been decided to acquiesce in the location and  
extent thereof with the exception of that known as Indian Reserve 24C, in the Quetico Forest  
Reserve, and subject to the modification and additional stipulation of said agreement hereinafter set  
forth, and whereas the Government of Canada has deposited in the Department of Lands, Forests and  
Mines of Ontario plans of said reserves…  
 Section 1 provides as follows:  
Therefore His Majesty, by and with the advice and consent of the Legislative Assembly of the  
Province of Ontario, enacts as follows:  
1. The said reserves as shown on said plans, with the exception of Indian Reserve 24C, in the Quetico  
Forest Reserve, are hereby transferred to the Government of Canada, whose title thereto is hereby  
confirmed, and subject to all trusts, conditions and qualifications now existing respecting lands held  
in trust by the Government of Canada for Indians, and subject to the provisions of the following  
sections.  
 Chartrand seems to have initially taken the wording of the 1915 Act at face value. His  
report (Ex. 60) contains the following at p. 219:  
…With one exception, Ontario and the Dominion finally concurred in the selection of Treaty 3  
reserves in negotiations held between 1913 and 1915, allowing for their confirmation by Order-in-  
Council. …  
…
In 1915, Ontario passed an Act to Confirm the Title of the Government of Canada to Certain Lands  
and Indians Lands. Specific to Treaty 3 reserves:  
Thus the government of Ontario confirmed that the boundaries of Treaty 3 Indian  
reserves would be as they had been selected by the Indians and surveyed by the  
federal government.  
[Emphasis added; references omitted.]  
 However, in cross-examination Chartrand conceded that Ontario had insisted on the  
cancellation of all but one of the reserves containing good agricultural land, and the Ojibway  
population in the area had been moved to a reserve at Manitou Rapids (January 22, 2010 at p.  
113.)  
 Chartrand's cross-examination on January 22, 2010 contains the following at pp 116:  
Q. But the point is that the government of Ontario becomes quite unhappy and resistant to the  
reserves as created by the Government of Canada -- Government of Canada?  
A. Well, in certain -- the certain locality of Rainy River, that becomes an issue. …  
 On January 25, 2010, Chartrand agreed, "the question of the surrender of the Rainy Lake  
reserves was a matter that Ontario had put forth as one of the conditions for confirming the  
reserves."  
 Ex. 1, Vol. 17, tab 799 contains a Memorandum written by Aubrey White, Ontario  
Deputy Minister of Lands, Forests and Mines, dated December 15, 1914 to his superior, the  
Ontario Minister of Lands, Forests and Mines, summarizing what had happened, as follows:  
Part 11. Post-Treaty Events  
214  
At the time the treaty was made… the [Dominion] Government authorized the laying out of certain  
reserves for the Indians, and those reserves were selected by them … and the Indians confidently  
expected they would get these reserves.  
When the boundaries of Ontario were legally established by the judgment of the Imperial Privy  
Council, Ontario's title … was undoubted. As Ontario had not been consulted in connection with …  
the selection of the reserves, the Government declined to recognize what had been done …the  
matter… became dormant, with occasional wakeful periods of negotiation. In … 1894… an  
agreement was signed.  
… nothing definite was done until last year [1914] in the month of December. Treaty 3 was taken up  
with the Minister of Interior and Dept. of Indian Affairs and a conclusion was arrived at as to what  
should be done by both Governments.  
It was agreed by the representative of the Dept. of Indian Affairs that surrenders should be taken from  
the Indians of all the [8] reserves on the Rainy River except one at Manitou Rapids… This agreement  
also covered what is known as the Wild Lands Reserve.  
It was further agreed that what is known as Reserve 24C situated on what is now called the Quetico  
Provincial Park, would be abandoned as a reserve by the Dept. of Indian Affairs.  
[Emphasis added.]  
 In short, by 1915, Ontario had refused to confirm 7 of the 8 reserves containing good  
agricultural land on the Rainy River. The protection for exclusive fisheries between headlands  
that had been contained in the 1891 Legislation was gone. (Chartrand, January 25, 2010 at p. 7.)  
 On April 8, 1915, By an Act to confirm the Title of the Government of Canada to certain  
lands and Indian lands was assented to. Section 2 of the 1915 legislation included the following:  
…the land covered with water lying between the projecting headlands of any lake or sheets of water  
not wholly surrounded by an Indian reserve or reserves…islands not wholly within such headlands  
shall not be deemed to form part of such reserve but shall continue to be the property of the Province.  
[Emphasis added.]  
 Whether Canada had/has a duty to protect Treaty 3 Harvesting Rights more aggressively  
than it did in 1915 is not to be decided here.  
The Evidence of Williams and Epp re Land Use in Ontario 1873-1930  
 Counsel for Ontario called Dr. Williams ("Williams") and Prof. Ernest Epp ("Epp") to  
give evidence about land use authorizations by Ontario after 1890 to support its submission that  
the dearth of Ojibway complaints about them was indicative that the Ojibway understood in 1873  
that "taking up" by Ontario was permissible under the Treaty.  
 Epp, qualified as an historian on Northern Ontario, gave evidence on Euro-Canadian land  
uses in the Treaty 3 territory authorized by Ontario between 1873 and 1930; Williams, qualified  
as an expert in forestry with experience in the history of forestry in Ontario, gave evidence about  
forestry in the Treaty 3 area between 1873 and 1930.  
 The premise apparently underlying their evidence was that whenever land or resources  
were being used, knowing that Ontario was providing the authorizations, the Ojibway should  
 
Part 11. Post-Treaty Events  
215  
have objected. That they did not, proves they must have agreed in 1873 to "taking up" by a  
generic Queen's government, including Ontario. Ontario seems to have assumed that any  
development should have triggered Ojibway complaints. In the absence of recorded complaints  
about "taking up" by Ontario, this Court should conclude that the Ojibway understood and  
agreed in 1873 that their Harvesting Rights could be extinguished as lands were developed.  
 I have found that in 1873 the Ojibway agreed to share the use of the land and resources. I  
have accepted Lovisek's evidence that she would not have expected them to complain unless that  
sharing significantly interfered with their harvesting activities.  
 Counsel for the Plaintiffs emphasized that they do not question Ontario's jurisdiction to  
authorize land uses within Ontario. They do challenge its right to authorize land uses of such  
intensity, extent or duration that they have a significant adverse impact on their Harvesting  
Rights. They do challenge Ontario's right to "take up" lands so as to limit their rights to hunt and  
fish as provided for in Treaty 3.  
 In giving evidence about Euro-Canadian development post-Treaty in the Treaty 3 area,  
neither Epp nor Williams commented on the effect or impact of that development on Ojibway  
traditional harvesting. They were not asked and did not undertake any analysis of impact on  
Harvesting Rights.  
 Epp conceded that Ontario had not asked him to identify the location of traditional  
hunting and trapping areas, wildlife or animal populations. He could not say whether any of the  
Euro-Canadian land uses about which he gave evidence had significantly interfered with  
Ojibway traditional harvesting. Had he been asked to do so, he said he might have sought the  
assistance of an ethno-historian or an anthropologist. He would have had discussions with the  
Ojibway. (Epp, January 27, 2010 at pp. 73-75.) He could not assist this Court on the issue of  
Ojibway knowledge about the extent of the Euro-Canadian land uses or the level of government  
that had authorized them (Epp, January 29, 2010.)  
 [Von Gernet and Chartrand both gave evidence that to assess impacts on Treaty  
Harvesting Rights would be a complex and difficult exercise. To properly gauge impact, a  
detailed analysis would be necessary, involving an assessment of multiple factors, including the  
location of Ojibway harvesting activities and the type of Euro-Canadian land uses; the extent of  
Euro-Canadian resource exploitation; the difficulty of accommodating the Euro-Canadian  
activities; the availability to the Ojibway of alternative resources; the benefits the Ojibway were  
deriving from Euro-Canadian land uses, the cumulative effects on Ojibway harvesting of other  
Euro-Canadian land uses (because an isolated Euro-Canadian activity that might not have been  
objectionable when the land was largely untouched, might have become objectionable by 2010,  
given intervening diminishment of other resources and territorial encroachment.) (Von Gernet,  
December 4, 2009; Chartrand, January 18, 2010.)]  
 In their evidence, neither Epp nor Williams distinguished clearly between development in  
Keewatin and in the Disputed Territory.  
Part 11. Post-Treaty Events  
216  
Evidence re Development in Keewatin  
 In Keewatin there was very limited, if any, Euro-Canadian land use until at least 50 years  
after 1873, when prospecting for gold began in the Red Lake District during the 1920s.  
Evidence re Development in the Disputed Territory  
 The Historical Atlas of Canada indicates that in all of the Treaty 3 area, agricultural,  
forestry and mining development as of 1891 did not meet the statistical threshold necessary to  
warrant depiction on the map. (Ex. 87, Altas of Canada, Plate 5: 1891; see Epp, February 17,  
2010 at pp. 5-7.)  
 Epp gave evidence that agricultural settlement in the Disputed Territory was mostly in  
townships close to Rainy Lake and the Rainy River. (Epp, January 29, 2010 at p. 145.)  
 Transportation. To facilitate passage through the Treaty 3 territory prior to the turn of  
the century, Canada built the Dawson Route. (Epp, January 29, 2010 at pp. 121-2 and 126-7.)  
 Chartrand said that by 1879, immigrant travel over the Dawson Route was in serious  
decline.  
 The first CPR train traversed the Treaty 3 territory between Fort Garry and Fort William  
in 1883, ten years after the Treaty was signed. The CPR was the only line of communication  
through the territory until 27 years post-Treaty.  
 Roads were trails or primitive cuts through the forest, primarily for winter use.  
 Up to 1930, most of the roads built were in the Rainy River Valley. None were north of  
the English River or even much to the north of the CPR line. The Ojibway and Euro-Canadians  
alike travelled by canoe during the summer. (Epp, February 16, 2010.)  
 Mining Development. Prospecting interest and activity that had begun in earnest in the  
Disputed Territory around 1890 had dried up by about 1906. Some mining locations were staked  
but were not worked. Some were worked intermittently, for a few months at a time. (Epp,  
February 17, 2010.)  
 Lumbering. Before 1875, there was no commercial timber harvesting anywhere in the  
Treaty 3 territory. Issuance of timber licenses was delayed by the Boundary Dispute. (Williams,  
February 19, 2010 at pp. 74 -75.)  
 Ontario's first sale of timber berths occurred in the Rainy River district in 1890. (Epp,  
February 16, 2010 at pp. 164-165.)  
 Both Epp and Williams agreed that while information on surveys, sales and licenses by  
Ontario of timber berths is available, whether and how much timber was harvested is unknown.  
   
Part 11. Post-Treaty Events  
217  
There is little or no reliable data. (Williams, February 18 and 19, 2010 See also Ex. 1, Vol. 13,  
tab 628 at pp. 5-6 of 57; Ex. 1, Vol. 14, tab 632 at pp. 5 of 60.)  
 Williams said on February 19, 2010 that during the study period, pine harvesting in the  
Disputed Territory involved the manual felling of trees during a few months of the year. The  
lumbermen left standing other species of trees. It could take decades to complete harvesting on a  
timber berth.  
 Counsel for the Plaintiffs submitted that the statistics cited by Williams for the Western  
Timber District, an area extending from Toronto to the Manitoba border, did not provide a  
reliable basis upon which this Court could infer the extent of timbering in the Treaty 3 area.  
Unlike other parts of the Western Timber District, where rivers flowed towards settled Canada,  
Treaty 3 area rivers flowed north and west, forcing lumber operators to rely primarily on prairie  
markets. (Exhibits 112 and 113; Williams, February 18, 2010 at p. 126, Ex. 116; Williams,  
February 19, 2010 at pp. 24 and 43-45.)  
 Findings of Fact Part II contain my conclusions on the Epp and Williams evidence.  
1920s-1950s: Developments in the Disputed Territory and the Keewatin Lands  
 Lovisek's report (Ex. 28) contains the following at pp. 156-157:  
On March 26, 1924 a letter addressed to James Robinson, Solicitor of Kenora dated January 3, 1924  
from Chief David Land of White Dog Reserve was published in the Kenora Miner and News.  
Robinson stated that the letter was one of several that he received from various chiefs about their  
grievances. The letter from Chief Land stated:  
We, the Indians of this band of Islington are asking the Government about the agreement  
that was made when first the white man asked the Indians [about] this land.  
When the treaty first was given to the Indians there was lots of supplies, farm tools etc. They  
are getting shorter every year. There is only little supplies now, some twine [ ] shot and gun  
powder, no farm tools.  
When the government sends the supplies to us we don't get them the Agent delivers them to  
the HB. Co. [Hudson's Bay Company]. The white man told the Indians the reserves to be  
their own land. Ther is another thing about the moose, deer and caribou and fur animals. The  
white man told the Indians I don't buy these from you and now the Department is going to  
look at me like a white man. That is the Department is going to stop me killing any of those.  
We are asking the government to be the same agreement now as when the first treaty was  
made. That is all.  
[Emphasis added; footnotes omitted.]  
 Chartrand gave evidence on January 19, 2010 about 1927-1951, a "repressive period,"  
containing the following:  
Q. … isn't it fair to say that we don't see a common practice of the Indians commencing court cases  
at that period to vindicate their rights?  
A. Well, at that time period, this was what, in my opinion, is the most repressive period in post-1876  
Indian Act Aboriginal history. In fact, two years earlier, in 1927, through -- at the initiative of  
 
Part 11. Post-Treaty Events  
218  
Duncan Campbell Scott, an Act had been passed, it was a federal Act, that went so far as to prevent  
Aboriginal peoples in Canada from raising funds to press for political -- political grievances, to press  
for rights, without the fundraising being expressly approved by the Superintendent General --  
actually, it was the Minister of Indian Affairs, which was the common -- the common time.  
… that, to me, is likely the most repressive, 1927 to, in law, 1951…  
…
Q. And so what we see here at this period of time is that in fact the government, the federal  
government, as part of this policy, was really trying to say… we are the ones who will decide what  
cases or interests or positions should be advanced on the part of the Indians, and in particular, to sort  
out what are the frivolous, vexatious types of claims that are being advanced and essentially we'll  
deal with the serious issues.  
A. I believe a long time ago, in a pretrial cross-examination, I think it was 2009, I alluded very  
generically to a hypothetical situation where a policy of protection can become oppressive. I think  
this is what we're -- this is what we're dealing with here by this time period.  
Q. But I think internally the government dressed it up as, we're just protecting the Indians from these  
dastardly lawyers who are going to advance all sorts of frivolous and vexatious claims, isn't that it?  
A. In some cases that was actually expressly written out.  
At p. 101  
Q. And the central concern may just be this idea that legal counsel would put overinflated ideas  
about the scope of the rights and strength of the rights into the Indians' heads, making the Indians take  
on unreasonable or irrational positions, that's the way the government thinks?  
A. All of that, including possible problems of corruption or bad behaviour, uncontrolled behaviour,  
may very well have been underlying various -- various instances. Underlying it all is the concept that  
the Euro-Canadian concept that Aboriginal peoples had -- essentially were minors under the law --  
At p. 103:  
Q. This actually becomes -- this policy is really the ultimate culmination of the idea that the proper  
channels for the Indians is to take their complaints to the federal government and then the federal  
government, as their guardian, essentially, will deal with it as appropriate?  
A. That's certainly how the federal government perceived the process to work…  
Chartrand, January 19, 2010  
 Jim Netamequon of the Assabaska Band wrote to the Department of Indian Affairs in his  
second language, English, on October 10, 1927:  
… During the first treaty was made the way I thing it took [ink blotch] me you Sold some thing that I  
should be owned for ever that is what I am writing to you again the white man Sweep off Every thing  
on which I should owned and I am kind of afraid if I dont see what I can make my livings and my  
wishes what have been Sold I wish you could let me have something so I can feeled we were told  
when first treaty made time we Shake hands we Said that we never have any change and if it happens  
to be change we will talk over again Settled that up over again [Emphasis added.]  
 On September 17, 1929, J. H. Bury, Supervisor of Indian Timberlands in the Department  
of Indian Affairs, wrote a memorandum (Ex. 1, Vol. 18, tab 845) to the Deputy Minister of  
Indian Affairs, blaming Ontario for the conditions facing the Lake of the Woods Indians:  
I desire to draw your attention to the deplorable state of affairs that is existing at present among the  
Indians of the Lake of the Woods area (Treaty No.3) due entirely to the action of the Province of  
Ontario in curtailing their hunting and fishing rights.  
I have seen many Indians practically starving on the shore, whilst they watched white men fishing  
commercially in the bays, adjacent to their reserves, the Indians themselves being refused fishing  
licenses by Ontario, although quite willing to pay the license fee and purchase their nets and  
equipment.  
Part 11. Post-Treaty Events  
219  
Many instances of absolute persecution of Indians on the part of officious game wardens have been  
reported, the most glaring being the recent instance of Game Warden Hemphill descending on the  
Islington band and confiscating all the deer meat that the Indians had taken for food, and also the deer  
skins which they required for moccasins.  
The Lake of the Woods Indians are physically suffering from the wrongful treatment meted out to  
them by the Province, but are patiently awaiting the time when their wrongs will be re-dressed and  
their rights vindicated….  
Bury cited the clear wording of the Harvesting Clause, capitalizing Her Said Government of the  
Dominion of Canada, and recommending that Canada intervene to protect the Treaty rights of  
the Ojibway, as the words of the Treaty anticipated. His September 17, 1929 memo continued:  
If this clause means what it says, and the language is un-equivocal, then the hunting and fishing  
privileges of the Indians are under the control of the Dominion Government solely, and any  
regulation that the Province of Ontario may see fit to make, is ultra vires, unless assented to in the  
first place by the Dominion…  
…
The Department being the custodian of the rights of the Indians, naturally, I presume, takes the  
position, that the control of Indian hunting and fishing rests solely with the Dominion Government  
and should in my humble opinion press a test case, as far as the Privy Council of Great Britain, so as  
to determine how far Ontario has the power to abrogate solemn treaties….  
…
I submit that we should insist upon: –  
The right of the Indians to take game and fish for food, only, at any time.  
The prior right of the Indians to commercial fishing in their own waters or waters adjacent to their  
reserves.  
The creation of trapping ground areas for the exclusive use of the Indians.  
Conclusion  
The Indians of Treaty No. 3 area (Lake of the Woods) are possibly facing today the worst conditions  
of living that they have ever experienced. Prevented from hunting for food, restricted from  
commercial fishing, failing to secure a blue –berry crop, they will assuredly need all the help and  
assistance that its possible to give them to tide over the winters; but if besides financial help, they  
also receive the assurance from the Department that their grievances will be remedied so far as it is  
humanly possible to do so, then they will turn to the future with renewed hope and a conviction that  
treaties are inviolable documents, not susceptible to alteration or abrogation by parties who were not  
contributory signatories.  
 On June 11, 1938, Captain Frank Edwards, the Indian Agent in the area, made notes  
during a meeting with an organized group of Treaty 3 Ojibway known as "The Organization of  
Amalgamated Indians" about their Treaty Harvesting Rights. Capt. Edwards then wrote (Ex. 1,  
Vol. 18, tab 852) to Indian Affairs to report as follows:  
They know the Dominion Government took over Canada. Now the Ontario Government has taken  
over, but it was the Dominion Government they made the Treaty with. … the Indians should have the  
fishing in the lake and also the game. They understood that was their own.  
After asking through an interpreter whether they understood they could fish and sell fish, their  
paraphrased answer was as follows:  
Part 11. Post-Treaty Events  
220  
It seems they understood that they could do anything with the fish, or trap and shoot. That right  
belonged to them. They are trying to find out and know why the Ontario Government can come along  
and prevent them from doing these things.  
[Emphasis added.]  
 Ex. 1, Vol. 18, tab 853 contains a letter from the Ojibway who lived on the Couchiching  
Reserve dated September 24, 1938, to the Federal Minister, the Honourable T. Crearar,  
Department of Mines and Resources (the Ministry under which the Department of Indian Affairs  
fell at that time), which included the following:  
…Whereas the fundamentals of the stipulations agreed upon to the said transactions were not  
faithfully carried out as it was promised by the Dominion Government.  
We, therefore, commit ourselves humbly in approaching our authorities at Ottawa of such  
representations as may be honestly considered by them in accordance to the obligations set forth for  
the benefit of the Indians and their children and those that will be thereafter.  
[Emphasis added.]  
 A. Spencer, the Indian Agent at the Fort Frances agency, wrote a letter dated September  
27, 1938 (Ex. 1, Vol. 18, tab 854) to the Secretary of Indian Affairs containing the following:  
I have the honour to report that the Chiefs and Headmen of the North West Angle Treaty No. 3 have  
been holding a Joint Meeting… for the last 4 days…and they think the Department is not living up to  
their promises, in a number of things, but more in respect of trapping and hunting.  
They have appointed a small delegation to go to Ottawa, to interview the Department, in respect to  
their Treaty, the greatest discussion was in regard to Fishing and Hunting, because the game Wardens  
were seizing their Nets and Boats or taking them up in court and being Fines for Fishing [sic].  
The Indians cannot make a living unless they are permitted to sell a few fish, as fishing and trapping  
is the only way they have of makeing a living. But the Game and Fishery Dept. at Toronto would  
only give to each fisherman One Licence instead of from Two-to-Four, probably some of the Indians  
would get a licence to catch and sell a few fish, because at this time nearly all the lake is taken up  
with white fishermen and the Indians have no place to go.  
If the Indians are not allowed to catch a few fish to sell, it will be as I was told by few of my Indians,  
they said that if they could not sell a few fish to provide for their families, that they would have to go  
to Jail, because they could not see their families starve, and I think they are telling the truth in that  
respect.  
If a delegation goes to Ottawa, I would recommend that an Official from the Department accompany  
them there to Toronto to interview the Game and Fisheries Department. …  
[Emphasis added.]  
 On October 3, 1938, the Organized Indians of the Northwest Angle wrote a letter  
enclosing the following resolution:  
Moved by the organized Indians do hereby resolve to urgently request the Government to allow  
exemption for hunting and fishing, without being arrested and fined. And that the Indian agents shall  
be given instructions strictly to protect the Indians so that no Indian should be prosecuted by the  
Game Wardens.  
Part 11. Post-Treaty Events  
221  
According to the old documents and treaties, they could not stop us from hunting trapping and  
fishing. It is in no way to interfere with these documents. There is no such thing as a law governing  
the treaties. THE TREATY SPEAKS FOR ITSELF.  
If the Indians are not allowed to hunt, they will starve.  
By the organized Indians of the Northwest Angle Treaty No. 3.  
[Emphasis added.]  
 Ontario continued to deny the Treaty 3 Ojibway the right to hunt and fish off-reserve  
under the Treaty. Lovisek's report (Ex. 28) refers at p. 161 to a memorandum written by an  
Indian Agent to Indian Affairs on December 5, 1938 noting that Ontario had passed regulations  
taking away all the rights and privileges the Indians thought they had under the Treaty:  
Indians cannot now kill food or game for food except on their reserves and have to do so for food,  
therefor being criminals…  
I dont know what can be done now, but it certainly seems to me we should take some action, as every  
Indian has to break the regulations to enable him to get food to exist.  
Fishing and hunting is the most pressing of our problems, and something should be done  
immediately. The Chief and one of the Councillors from Islington Band were in to see me yesterday  
and said the Indians would be starving by Christmas as there was very little fur, and whitemen  
trapping in their territory, and legally they could not get fish or meat for food for themselves or their  
families ... Previously I used to tell them to …put up fish and meat, now if I tell them to do this I am  
conniving in the breaking of the regulations, and presumably might be held liable myself.  
[Emphasis added.]  
 Ontario's response to Canada's and the Ojibway's assertion that the Ojibway had  
Harvesting Rights off-reserve under the Treaty was described in 1939 by Indian Agent Edwards  
in a letter dated April 15, 1939 [Ex. 1, Vol. 18, tab 858] to M. Christianson, General  
Superintendent of Agencies:  
I dislike keeping bringing up before the Department the question of trapping, hunting and fishing  
problems of my Indians, but Ottawa apparently has no idea how serious the matter is…  
They cannot kill a deer on the reserve for food and take a piece of the meat with them off reserve  
when traveling without being liable for prosecution. And they can be fined for this. They cannot fish  
for food, with twine given them by us under Treaty stipulations, without being liable, and have been  
fined and their boats and nets seized and not been given back without payment for the return of them.  
.. Mr. Taylor, Deputy Minister of Game and Fisheries, when talking to me last summer, said it was  
nothing to do with him when asked how the Indians were going to make a living, that was "our  
Department's baby", not his. The Indians were not going to live on the Province's moose, deer, fish  
etc., and some other way of their making a living should be devised by us.  
The Indians and all of us are very much discouraged. They say the treaty was signed for as long as  
the rivers flow etc. and we are breaking the treaty.  
[Emphasis added.]  
 It appears from Taylor's response, quoted above, that as of 1939, Ontario was pointedly  
refusing to recognize any responsibility to respect or honour the Treaty promises.  
Part 11. Post-Treaty Events  
222  
 After a delegation of Ojibway travelled to Ottawa to make their complaints on May 22,  
1939, the Director of the Department of Indian Affairs, Dr. H. W. McGill ("McGill"), prepared a  
memorandum (Ex. 1, Vol. 18, tab 859) for the Deputy Minister outlining the "distressing  
situation" and noting that Ontario had changed the definitions in its regulations "apparently for  
the express purpose of barring Indian Treaty rights ..." I note that McGill referred to the failure  
of the Dominion to honour its moral obligations under the Treaty. (Lovisek report, Ex. 28, at p.  
161.)  
 On June 18, 1941, the Chief and Committee of the Union Council of Treaty 3, including  
Chief Ed L. Hyacinthe of the Grassy Narrows Band, appealed to the Department of Indian  
Affairs, as follows:  
We the undersigned Treaty Indians held a Council meeting bearing date June 18th 1941 appeal to the  
Department of Indian Affairs for protection and ask that justice be done. This is in accordance with  
rights granted to us through the Act of Her Most Gracious Queen Victoria by the Treaty Number 3 of  
North West Angle bearing date of October 3rd 1873.  
…
What us Indians lived as for a living, the white man is taking these away from us now. For instance,  
fishing, trapping and game. …This is the resolution passed by all members of Treaty No. 3, North  
West Angle Treaty.  
We have given many complaints to the Indian Agent [and he has sent] our complaints to Ottawa and  
we never get an answer. We now think that we will go and see you personally and tell of our  
complaints which will be in the Fall.  
[Emphasis added.]  
(Lovisek report, Ex. 28, at p. 162)  
 Chief John Ross and Councillors of Lac Seul Band sent a letter dated September 16, 1946  
(Ex. 1, Vol. 18, tab 860) to Norman Liquors, a liaison between the Indians and the Special Joint  
Committee of the Senate and House of Commons, characterizing their understanding of the  
Treaty promise as "first explained" to them "to hunt and fish in the territory ceded by us as a  
right without hindrance."  
Since we made the treaty with the Government of Canada, we believe we should not be forced to  
have any dealings with the Province of Ontario.  
The Lac Seul band is in Treaty No. 3 which was made in 1873 and also known as the Northwest  
Angle Treaty. We are satisfied with our conception of the original agreement and want it to continue;  
the terms to be carried out as promised and as it was first explained to our representatives who signed  
the treaty for the Indians. …  
Our understanding of the original Treaty was that we could hunt and fish without hindrance in the  
territory ceded by us. The Indians who signed the Treaty could not possibly anticipate any future  
Government regulations which would change this, as Game and Fish laws were unknown to our  
forefathers. It seems reasonable to suppose that the white man who arranged the treaty must have  
known something about Game and Fishery regulations even in those days of long ago. We believe if  
this had been fully explained to the Indians the Treaty either would not have been signed or would  
have contained a positive statement giving the Indians full right to hunt and fish without restrictions.  
Since we made the Treaty with the Government of Canada we believe we should not be forced to  
have any dealings with the Province of Ontario.  
[Emphasis added.]  
(Lovisek report, Ex. 28, at p 163)  
Part 11. Post-Treaty Events  
223  
The Present Day  
 Into the 20th century, the Indian Agents reported every year that the principal activities of  
the Ojibway at Grassy Narrows were hunting, fishing, berry picking and the harvesting of wild  
rice.  
The Evidence of William Fobister  
 William Fobister ("Fobister"), a member of the Grassy Narrows First Nation, gave  
evidence on November 24 and 25, 2009, primarily relevant to the continuing importance of  
traditional harvesting in Ojibway culture and the effects of lumbering on the Grassy Narrows  
people. He told about his life as a child and in recent years. He emphasized that traditional  
harvesting continues to be a crucial component of Grassy Narrows culture and identity.  
 The Grassy Narrows people could not survive just on the produce of their gardens. They  
also need meat, game and fish obtained by hunting and fishing.  
 Fobister described the seasonal patterns followed by all members of his family before he  
was sent off to residential school when he was 7 years old. I have summarized his evidence in  
detail because he made a poignant statement about his love for a lifestyle that many Canadians  
would assume to be undesirable and unwanted.  
 Fobister was born on February 18, 1946 in a cabin located on his father's trapline on  
Crown land, a several-day canoe trip from the Grassy Narrows Reserve. I inferred from his  
evidence that the family went to the same cabin and his father winter-trapped on the same  
trapline every year.  
 Seasonal Round. From May to June, the family would be at the Reserve, where they  
planted potatoes, corn, cabbage and onions in their gardens. In July, they would paddle and  
portage a freighter canoe to a location about 30 kilometres from the Reserve. They would spend  
two to three weeks there, living in tents and harvesting blueberries that they canned or dried over  
the open fire for winter use or for sale to others.  
 After the blueberry harvest, his family would return to the Reserve for a week or so to  
check on their gardens. Then they would journey 10-15 kilometres in another direction to harvest  
and preserve wild rice, living in tents or cabins. A great deal of work was involved. One family  
member would sit in front of a canoe and paddle. Another would sit at the back and hit the rice  
into the canoe with a stick. While the rice dried, they would dig holes. Then they would place the  
dried rice in them and dance on the rice to remove the husks. They would sell some of the wild  
rice and keep some for winter use.  
 After that harvest, they would return to the Reserve to harvest their gardens. His parents,  
who did not have a root cellar, would bury the produce, surrounded with dry grass, in a hole in a  
sandy area of the bush to preserve it until the winter.  
   
Part 11. Post-Treaty Events  
224  
 In mid-September, after they had gathered and stored wood for the older family members  
who wintered at the Reserve, the family travelled two-three days by freighter canoe to their  
winter trap line. Along the way, they would hunt and trap. After reaching their trap line, they  
would ensure their cabin was well maintained, and gather and store wood for the winter. His  
older brothers helped their father hunt, setting traps and snares to catch beaver, otter, mink and  
other animals.  
 When he was very young, Fobister would remain in the cabin with his mother and learn  
from her how to preserve animal pelts. He would help her bring in wood and haul water. She  
made moccasins, gloves, jackets and pants from the pelts. His father sold fur and pelts to the  
HBC.  
 They lived on their trap line throughout the winter and into the spring, eating deer,  
moose, beaver, lake trout, walleye, northerns and sucker meat, supplemented with wild rice,  
dried blueberries and produce preserved from their gardens. A dog team was used to haul wood  
and meat and to travel to buy food at the closest store, about 15-20 kilometres away.  
 In April after the wolf and fox moulted, the family would move to another location to  
trap muskrat, otter and beaver. They would then return to the Reserve and prepare the garden for  
another year.  
 Treaty Days. About the end of May or early June, "Treaty Days" were held. A Euro-  
Canadian group that included medical practitioners [doctor, dentist, X-ray technician],  
missionaries, representatives of Lands and Forests [now the MNR] and the RCMP together with  
the Indian Agent would visit the Grassy Narrows Reserve. Their journey involved taking the  
CNR to the Jones station and then travelling 40 km north by canoe for two to three days to reach  
the Reserve.  
 The women would dress up in their best clothes. When seeing the doctor/dentist, etc.,  
band members who spoke English would help those who did not.  
 Fobister described on November 24, 2009 the main event, the distribution by the Indian  
Agent of the Treaty annuities of $5 per person, as follows:  
A. …The Indian agent will be sitting in the table, my dad used to string us in a line… and he was  
given the $5. Right next to the Indian agent, my dad would have his treaty money, his $5, and right  
next to MNR, he would pass this five bucks to get his trapper's licence, and there goes his treaty  
money.  
His parents used the $5 received for each child to buy clothes or whatever was needed.  
 Fobister said he understood they were receiving the annuity payments for sharing their  
land.  
 The Ojibwe words for Indian Agent are shoniya okimah or Anishnabe okimah, meaning  
the Indians' boss. The word for the MNR representative was Kakaanawaytunk, meaning a  
steward, "a person who takes care of things for you." Fobister understood the MNR was helping  
the Indian Agent take care of the land, watch for forest fires and put them out. When he was  
Part 11. Post-Treaty Events  
225  
growing up, Fobister believed that the Indian Agent held a higher position than the MNR  
representative. He understood that complaints should be made to the Indian Agent, who would  
look after the Ojibway for as long as they lived.  
 On the Grassy Narrows Reserve there was no school. In 1953 when Fobister was seven,  
he was sent to residential school, which he attended September to June each year until 1958.  
Students were punished for speaking Ojibwe. They were not allowed to mention their own  
culture or to practice it. They were taught "mainly about the Roman Catholic religion," nothing  
about Treaty 3 or Government.  
 After he left school at 12 or 13, Fobister helped his father trapping, working with the  
HBC, hauling wood, cutting grass, hunting [moose, deer, ducks, partridge, rabbit] and fishing.  
He learned to handle firearms, knives and axes, and to cut up animals and fish.  
 When he was older, he worked at Grassy Lodge, a local tourist camp. First he was a camp  
boy, later a fishing guide. Other Grassy Narrows people worked as guides at other nearby tourist  
camps.  
 The Grassy Narrows people fished for their own consumption and for sale to others until  
1970, when mercury poisoning was discovered in the Wabigoon and English River system and  
adjacent lakes. Fish were declared unsafe to eat. Fishing ended. The tourist industry, formerly the  
main employer in the area, collapsed. Welfare was introduced for the first time.  
 During the early 1970s, Fobister was his community's first welfare administrator. As time  
passed, he assumed other positions with the band, including resources coordinator [rebuilding  
and repairing trapping cabins on Crown land], band councillor and then Chief of the Grassy  
Narrows band from 1992-2002. At the time of trial, he was still a band councillor.  
 Fobister said there were no nearby roads when he was young. There was no logging in  
the area of the trap line where he was born. Even today, the vast majority of the trap lines of the  
Grassy Narrows people are located on Crown lands. Euro-Canadian forestry operations are also  
largely conducted on Crown land.  
 Selective logging in the vicinity of the Grassy Narrows Reserve and of Fobister's father's  
trap line did not begin until the mid to late 1960s. Initially, swede saws or axes were used.  
Loggers harvested only selected types of wood. Other trees were left standing.  
 Fobister said that the impact of that type of selective logging on hunting and trapping was  
more acceptable to his people. They did not object to the logging because they were working  
together with the Euro-Canadians and could still hunt and trap without much disturbance. They  
benefited from participating in the selective logging process, from being paid to plant saplings  
after it ended, and from the road access it brought. After the loggers finished harvesting and  
moved on, the Ojibway were still able to hunt because many trees were left standing and there  
were places where the animals could still hide in safety.  
Part 11. Post-Treaty Events  
226  
 In recent years, clear-cutting activities of "quite large" areas of their traditional hunting  
territories have, in Fobister's view, adversely affected their hunting and trapping. The Ojibway  
have complained that their Treaty Rights have been and are being violated. Modern day clear-  
cutting has had greater impacts than earlier logging. It is done 24 hours a day, 7 days per week  
by heavy machinery (not by men with saws and axes.) Everything is cut. The land is levelled. No  
trees are left standing. In areas that have been clear-cut, no animals remain because their warrens  
have been bulldozed. Fobister said, "Our way of life, how we hunted and fished, now it's being  
slowly depleted."  
 Today, Grassy Narrows hunters have to travel farther to hunt than they did in the '50s,  
'60s and '70s. They receive fewer benefits from Euro-Canadian logging activities. Now, tree  
planting is now done by machinery. The Grassy Narrows people are left with almost nothing to  
depend on.  
 Fobister has always hunted and trapped and continues to go into the bush to hunt and  
trap. "It's still my way of life." Although welfare has "crippled" people within his community,  
many of the "new generation" want to hunt. He expressed the view on November 25, 2009 that it  
is "so important" for the future generation to maintain traditional practices and "to be able to  
fix…what's been happening to us lately."  
Royal Commission on Aboriginal Peoples  
 The Royal Commission on Aboriginal Peoples ("RCAP"), a Canadian Royal Commission  
established in 1991 to consider Aboriginal issues, culminated in a final report of 4000 pages  
published in 1996.  
 I did not review RCAP until after I had analyzed the evidence and reached my factual  
conclusions. My findings herein are not based on RCAP. They are all based on the evidence  
presented in the case before me. RCAP, of course, did not deal specifically with Treaty 3 but was  
more general. Nevertheless, as I was completing writing the Reasons, I concluded the following  
excerpt from RCAP is worthy of mention here:  
The Crown asked First Nations to share their lands with settlers, and First Nations did so on the  
condition that they would retain adequate land and resources to ensure the well-being of their nations.  
The Indian parties understood they would continue to maintain their traditional governments, their  
laws and their customs and to co-operate as necessary with the Crown. There was substantive  
agreement that the treaties established an economic partnership from which both parties would  
benefit. Compensation was offered in exchange for the agreement of First Nations to share. The  
principle of fair exchange and mutual benefit was an integral part of treaty making. First Nations  
were promised compensation in the form of annual payments or annuities, social and economic  
benefits, and the continued use of their lands and resources.  
…First Nations were assured orally that their way of life would not change unless they wished it to.  
They understood that their governing structures and authorities would continue undisturbed by the  
treaty relationship. They also assumed, and were assured, that the Crown would respect and honour  
the treaty agreements in perpetuity and that they would not suffer — but only benefit — from making  
treaties with the Crown. …  
…
 
Part 11. Post-Treaty Events  
227  
Written texts also placed limits on the agreements and promises being made, unbeknownst to the  
Indian parties. For example, written texts limiting hunting and fishing to Crown lands stand in  
contradiction to the oral promise not to interfere, in any way, with their use of wildlife and fisheries  
resources. These inherent conflicts and contradictions do not appear to have been explained to the  
Indian parties.  
One of the fundamental flaws in the treaty-making process was that only the Crown's version of  
treaty negotiations and agreements was recorded in accounts of negotiations and in the written texts.  
Little or no attention was paid to how First Nations understood the treaties or consideration given to  
the fact that they might have had a completely different understanding of what had transpired.  
Another fundamental problem was the Crown's failure to establish the necessary laws to uphold the  
treaties it signed. Unlike the modern treaties of today, which have provisions for implementation,  
implementation of the historical treaties was virtually overlooked. Once treaties were negotiated, the  
texts were tabled in Ottawa and the commissioners who had negotiated them moved on to other  
activities. …  
Nor did the government's corporate memory with respect to the historical treaties survive within the  
Indian affairs administration. Accordingly, after treaties were made, unless they were described and  
explained explicitly and disseminated widely in government departments, the promises and  
understandings reached with First Nations would have been lost as officials changed jobs or moved  
on. This helps to explain the gradual distancing of officials from the treaties that they, as government  
officials, were charged with implementing.  
… the Crown did not involve First Nations in decisions about how proceeds from their lands would  
be used. The eclipse of treaties and the absenting of Indian people from decision making was  
pervasive, reinforced by Indian Act provisions that restricted Indian people to reserves and forbade  
them to pursue legitimate complaints about the non-fulfillment of treaties.  
…
… respect for the treaties and the obligation to fulfil them have not been priorities for governments in  
Canada or, indeed, for Canadians generally.  
Looking Forward, Looking Back, Part One, Section 6, Sub-Sections 5 and 6, Royal Commission on  
Aboriginal Peoples  
12. FINDINGS OF FACT, PART II  
Findings re Identity of The Treaty Parties  
Re Canada's and the Ojibway's Understanding of the Identity of Their Treaty Partner and  
their Duties to Each Other  
 I have found that in 1873, the Ojibway understood the Commissioners had been  
appointed by the Government at Ottawa and were representing it. They understood the Treaty  
was with the Queen's Government in Ottawa and it was the only Queen's Government they  
would be dealing with. They understood they were not dealing literally with the Queen.  
 In the years immediately following 1873, the behaviour of both the federal government  
and the Ojibway reflected a mutual understanding that they were to deal only with each other.  
     
Part 12. Findings of Fact Part II  
228  
 I find, based on the viva voce evidence and the post-Treaty documents, that after the  
Treaty was signed, the Ojibway dealt first with Morris, then with the Department of Indian  
Affairs, the branch of the Canadian government responsible for Indians.  
 After the Treaty was signed, consistent with this understanding, the federal government  
built on the formal structure of the Indian Agents it had already started in the Treaty 3 area. It  
encouraged the Ojibway to use this structure as the means to have their concerns, needs and  
grievances, including complaints about Treaty implementation and enforcement, on- and off-  
reserve, addressed.  
 The Ojibway understood their relationship with Canada, their Treaty partner, was  
important.  
 The focus of the Treaty negotiations was the establishment of a relationship between the  
Ojibway and their new Treaty partner, the government at Ottawa.  
 I accept Chartrand's evidence that the Ojibway framed their complaints in terms of their  
relationship with each other. I find, based on the evidence of both Lovisek and Chartrand, that  
post-Treaty, the Ojibway understood that all their complaints should be addressed to the federal  
government via their Indian Agents. The Plaintiffs looked to the federal government and  
expected it to address their complaints. When matters were not to their liking, the Ojibway sent  
their letters and petitions through the federal Indian Agents to Ottawa. The Government of  
Canada understood that the Ojibway were looking to it. It intended to make good on its promises  
to the Ojibway.  
 It is clear that the Ojibway saw a link to the federal government. When Morris retired  
they petitioned (Ex. 1, Vol. 8, tab 400) his successor, Cauchon, asking him to intercede for them  
with the Government at Ottawa.  
 While there are relatively few references to the Queen in the post-Treaty documents,  
there are some, especially to Our Mother the Queen. Lovisek said that after the Treaty was  
signed [and the formal relationship was established] the Ojibway perceived that they now had  
kinship links to the Canadian Government/shared a mutual relationship in the form of a symbolic  
kinship with the Great Mother, the Queen. They expected mutual give and take and that their  
Treaty partner would have due regard for their welfare.  
 A good example of a post-Treaty mention of the Queen relied upon by Ontario is the  
statement attributed to Chief Conducumewininie as quoted by the Indian Agent McColl in his  
report (Ex. 1, Vol. 12, Tab 588, pp. 199-201) dated November 18, 1890:  
When the treaty was made with us at the North-West Angle we saw the lips of the Government  
moving but now they are closed in silence, and we do not know what is done in the Councils of our  
mother the Queen. We see some one fishing out in the lake. Who is he and where does the evil spirit  
come from? Is he a big-knife [an American] from the United States? We wish our children and our  
children's children to live, but he is destroying their food and they will die of hunger. When we gave  
up our lands to the Queen we did not surrender our fish to her, as the Great Spirit made them  
for our special use. [Emphasis added.]  
Part 12. Findings of Fact Part II  
229  
 Although the Ojibway did refer to the Queen, it was in the context of referring to "the  
Councils of our Mother the Queen" and after reference to the "lips of the government moving." It  
is clear from the context that Chief Conducumewininie understood he was dealing with the  
Council of the Queen, the Government at Ottawa, not the Queen literally.  
 In other correspondence, reference was made only to the government. An example is a  
letter dated October 1, 1875, in which Dennis quoted Chief Powawassan and two other chiefs  
verbatim as follows:  
We wish to thank the Minister for sending you to see us, not alone because of the result of settling  
our reserves but because representing the Minister, you have been able to give us the assurance that  
everything will be done for us that …we are entitled to under the Treaty. We hope… nothing was  
said … displeasing to the Government."  
[Emphasis added.]  
The use of words such as "Minister" suggests they knew they were looking to the Government  
that included the Minister of Indian Affairs for fulfilment of the Treaty promises.  
 While there are references in some of the other documents to the Queen and to Our  
Mother the Queen, there is no evidence that the Ojibway ever directed any of their complaints to  
the Queen or sought to literally communicate with her. There is no evidence that any of the  
Ojibway Chiefs sought to travel to London to meet with the Queen or the Queen's government in  
London. Interaction was between the Ojibway and the Government at Ottawa.  
 Chartrand agreed on January 19, 2010 at p. 127 that he did not have any documentary  
evidence indicating that the Ojibway wrote petitions or addressed complaints directly to the  
Queen or (at page 130) to the English government.  
 In the years immediately after the Treaty was concluded, the federal government was the  
only government to which the Ojibway looked for fulfilment of the promises. They always  
addressed their complaints to officials in Ottawa or representatives of the Government at Ottawa.  
 The Ojibway took their own Treaty promises to the Government of Canada seriously.  
They did what they had promised to do. After they signed the Treaty, they did not harass  
travellers on the Dawson Route or interfere with the construction of the CPR. In 1874, Chief  
'Kou-crouche' (Cou-Crouche or Crooked Neck) met with Morris:  
…to acquaint him of their [Ojibway] desire to make peace with the Sioux. The Chief said the words  
he had heard at the Angle were good, he had promised to live at peace with all men, and he now  
wished to make friends with the Sioux. The distrust between the two tribes had been great, owing to  
past events. At the Angle, but for the presence of the troops, the Chippewas would have fled, it  
having been circulated among them, that the Sioux were coming to attack them. Permission was  
given to the Chief to pay his visit to the Sioux, and messengers were sent to them, in advance, to  
explain the object of his visit…  
[Footnotes omitted.]  
(Lovisek's report, Ex. 28, at p. 146.)  
 On the basis of all the post-Treaty documents and evidence, I have concluded that both  
Canada and the Ojibway understood they were looking to each other and only each other to  
fulfill the Treaty promises.  
Part 12. Findings of Fact Part II  
230  
Re Ontario's Understanding of the Identity of the Treaty Parties in the Late 19th and Early  
20th Centuries as Evidenced by its Post-Treaty Conduct  
 I accept the submission of counsel for the Plaintiffs that the circumstances surrounding  
the Annuities Case and the submissions made by counsel for Ontario during argument are  
relevant to Ontario's understanding of the identity of the Treaty parties in 1873.  
 At the time the Annuities Case was argued, Ontario submitted that Treaty 3 was a  
contractual arrangement between Canada and the Ojibway, made without privity with or  
mandate from Ontario. In effect, Ontario was submitting that the governmental Treaty partner  
was Canada, not the Queen.  
 Unlike Ontario's position before me that the principal purpose of Treaty 3 was to obtain a  
surrender of the lands and that Canada had no ongoing role to protect Harvesting Rights under s.  
91(24) after the Treaty was signed, I note that in the Annuities Case, Ontario submitted that  
Canada made the Treaty for its own purposes and its own account [e.g., to secure the Dawson  
Route, to further its objectives of opening the West for settlement, to satisfy the promises made  
to British Columbia in the terms of Union to build the CPR, to look out for the interests of the  
Ojibway under the Rupert's Land and Northwest Territories Order and more generally acting in  
its s. 91(24) capacity as the guardian of Indians.]  
 Unlike here where Ontario denied Canada's s. 91(24) role in the Disputed Territory after  
1888, submitting that after St. Catherine's Milling was decided, Canada had no ongoing s. 91(24)  
role, in the Annuities Case Ontario's "Statement in Answer" to Canada's claim referred to  
Canada's protective s. 91(24) role vis-à-vis the Indians in the Disputed Territory as follows:  
The Indians were, as they still are, the wards or pupils of the Crown represented by the Dominion,  
and some of the principal matters covered by the said Treaty relate solely or mainly to such wardship  
or pupilage, and many of the obligations undertaken by the Dominion in and by the said Treaty relate  
to that subject, and not to the subject of the cession of the territory.  
 For many years after 1873 and after the Annuities Case, Ontario continued to position  
itself as a stranger to the Treaty. It consistently took the position that neither the federal  
government nor the Ojibway could look to it for satisfaction of any Crown obligations under it.  
Ontario refused to respect the Treaty promises. Its continuing conduct is clear evidence that until  
fairly recently, Ontario understood that the references to "the Government of the Dominion of  
Canada" in the Harvesting Clause were references to Canada (not to the Queen) and that Canada  
(not the Queen) was the Treaty partner of the Ojibway.  
 In 1915, for example, in refusing to confirm 7 of 8 of the Ojibway reserves that had  
contained good agricultural land in the Rainy River area, Ontario disregarded specific promises  
Canada had made to the Ojibway during the negotiations that their gardens would be specifically  
reserved to them for their exclusive use. After they lost their best agricultural land and were  
forced as a result to depend more heavily on traditional harvesting than they would otherwise  
have had to do, Ontario refused to allow them to hunt off reserve for subsistence (as I have  
found, clearly contrary to the promises made in the Treaty.)  
 
Part 12. Findings of Fact Part II  
231  
 In 1939, the Ontario Deputy Minister of Game and Fisheries, when discussing federal  
complaints that Ontario was violating the Treaty, was reported to have retorted that how the  
Indians were going to make a living was "our Department's baby," not his. The Indians were not  
going to live off the province's deer, fish, etc., and Canada should devise some other way of  
making a living for them.  
 Into the 1950s, Ontario denied any responsibility to respect Ojibway Harvesting Rights.  
Chartrand described Ontario's restriction of Ojibway fishing rights in favour of Euro-Canadian  
commercial fishermen and its attempts to keep the Ojibway away from areas used by Euro-  
Canadian sports fishermen, and its raids of reserves to seize deer killed off-reserve.  
 It appears from all of the evidence that Ontario's present position that it is obliged as a  
Crown entity to respect Treaty Rights has not been long held, but is newfound.  
Findings re the Meaning of the Harvesting Clause  
Re Post-Treaty Conduct Shedding Light on Mutual Understanding of the Meaning of the  
Harvesting Clause  
 Both Lovisek and Chartrand agreed that Canada responded to complaints about breaches  
of Treaty Harvesting Rights that arose both on- and off-reserve.  
 I accept the evidence, including that of Chartrand quoted earlier, that officials in the  
Department of Indian Affairs [the federal government] did not view their mandate/role as being  
limited to on-reserve issues. They recognized their jurisdiction and duties to Indians under s.  
91(24) among other things by advocating for the protection of their Treaty 3 Harvesting Rights.  
 Counsel for Ontario contended that after the Treaty was signed, federal Indian Affairs  
took no role in the patenting of off-reserve lands in Ontario after 1889 and in Keewatin after  
1912. He submitted during argument that after the Treaty was signed, Canada had no ongoing s.  
91(24) jurisdiction in the Disputed Territory.  
 Chartrand conceded in cross-examination that when Canada received complaints about  
hunting and fishing matters, hunting regulations, fishing regulations, overfishing, it did not say,  
"Not our problem, complain to Toronto."  
 Chartrand conceded on January 25, 2010 at p. 14 that Canada had a s. 91(24) mandate  
within Ontario, even after Canada lost the Boundary Dispute.  
 I reject Ontario's submission that the post-Treaty conduct of the Department of Indian  
Affairs is inconsistent with a perception that it had no mandate off-reserve.  
 I find that Canada did intend to protect Treaty Harvesting Rights off-reserve. While it did  
not expect to routinely involve itself in authorizations for the use of land, it did have the power,  
under the Treaty and s. 91(24) to involve itself in authorizing or refusing to authorize uses  
incompatible with Treaty Rights.  
   
Part 12. Findings of Fact Part II  
232  
 In the immediate post-Treaty years, it took active steps to protect Harvesting Rights.  
Canada gave Pither power under the Dominion Lands Act and the Fisheries Act to enforce timber  
regulations and fishing rights respectively.  
 Canada made representations to the United States, asking it to curb commercial fishing  
adversely affecting Ojibway fisheries on the Lake of the Woods. The federal government  
proposed to ban all but Indian fishing in the Lake of the Woods. It took steps to protect Ojibway  
fishing and then proposed instituting the headlands principle. Other federal initiatives to protect  
Harvesting Rights were initiated on a multi-departmental basis.  
 Canada's conduct immediately after the Treaty was signed indicated that it understood  
that it owed the Ojibway a duty to enforce the Harvesting promise.  
 I find that in the years immediately after 1873, Canada intended to protect the Ojibway  
and their Harvesting Rights and acted to do so.  
 When post-Treaty commercial fishing was depleting the fish stocks available to the  
Ojibway, Dawson wrote that it was never intended that activity by Euro-Canadians in the Treaty  
3 territory would be of such extent that it would interfere with activities "so as to prevent or  
inhibit the Indians from participating in that activity." That statement confirms that in 1873, the  
Treaty Commissioners did not expect Euro-Canadian harvesting activities to have serious  
impacts on Ojibway subsistence harvesting. (Lovisek, October 22, 2009 at p. 114; November 18,  
2009 at p. 112.)  
 Between 1889 and 1891, although Canada's resolve to implement and enforce Treaty  
promises was waning, it nevertheless extracted an agreement in principle from Ontario that  
Ontario would confirm the Treaty 3 reserves already allotted to the Ojibway, absent strong  
reasons to do otherwise and that the Ojibway would have exclusive fishing rights in waters  
between the headlands.  
 A provision was included in the 1891 Legislation providing for Aboriginal fishing  
between headlands.  
 The conduct of the parties recognized the relationship between the Ojibway and the  
Canadian Government. I have found that the Ojibway took their promises seriously and kept  
them. I find that the Canadian Government initially did the same.  
 However, as time passed, and especially after Macdonald died and St. Catherine's Milling  
was lost, Canada's firm resolve was increasingly diluted. By 1915, unfortunately for the  
Ojibway, Canada's interest in protective activities had waned considerably. By 1915, it had  
acceded to Ontario's refusal to confirm 7 of the 8 Rainy River reserves that contained the best  
agricultural land and its refusal to restrict fishing in waters between headlands to the Ojibway  
exclusively.  
 Post-Treaty, the mutual intention/expectation that the Ojibway would be able to harvest  
resources as in the past was generally borne out. The Indian Agent reports filed in evidence  
Part 12. Findings of Fact Part II  
233  
illustrate that year after year, the principal occupations of the Treaty 3 Ojibway continued to be  
hunting, trapping, fishing, wild rice harvesting and berry picking; occasionally supplemented by  
other activities.  
 When the Ojibway made repeated complaints about interference with off-reserve  
Harvesting Rights, they clearly considered that it was incumbent on the federal government to  
address their concerns.  
 Evidence of Ojibway discontent and complaints about unfair regulation by Ontario of  
their harvesting activities is not evidence of incompatibility between Ojibway harvesting  
activities and anticipated Euro-Canadian land uses in my view. Rather, it is evidence of disregard  
and disrespect for the Ojibway harvesters and for their Treaty Rights and of the reality that  
Ontario did not consider itself obliged to respect Treaty Rights under the Honour of the Crown.  
 Being able to pursue traditional Harvesting Rights as in the past continues to be of great  
importance to the Plaintiffs. It is central to their identity and culture to this day.  
 Even in the post-1915 period, the Department of Indian Affairs took a continued interest  
in the off-reserve harvesting activities of the Ojibway because if the hunt had failed, the federal  
government would have had to support the Treaty 3 Ojibway.  
 Other evidence of post-Treaty developments presented in this Court reflected a  
continuing expectation that the Harvesting Rights granted under the Treaty and post-Treaty  
Euro-Canadian development activities would be compatible.  
Re Compatibility of Ojibway/Euro-Canadian Land Usage After 1873  
 Post-Treaty communications and activities reflect that in 1873, away from the Dawson  
Route and CPR right-of-way, the Commissioners had been correct in anticipating compatibility  
between traditional harvesting and Euro-Canadian activities in the Treaty 3 area.  
 I have already quoted the portion of Chartrand's report (Ex. 60) that contains the  
following at p. 217:  
Dawson's letter [of March 2, 1874] reveals that he expected little to no conflict with respect to the  
selection and use of lands by Aboriginal signatories, the Dominion and non-Aboriginal settlers and  
developers. As he indicated, at the time the only area where potential conflict might develop was in  
the vicinity of Rainy River, where Aboriginal signatories had developed their own agricultural  
practices and where lands held the most promising potential for non-Aboriginal settlement and  
farming. …  
In other Treaty 3 localities, such as Lake of the Woods, Dawson expected few conflicts …  
 In the case of the Grassy Narrows Ojibway, the life of Fobister is illustrative of the  
continuing reality that they were still pursuing the seasonal round without significant Euro-  
Canadian interference, at least into the 1960s and that Euro-Canadian uses and traditional  
harvesting were compatible.  
 
Part 12. Findings of Fact Part II  
234  
 Until recently, the Ojibway did not object to the federal government and the federal  
government took no role with respect to forestry activities involving selective cutting that offered  
them benefits and did not drive away the animals. Fobister said it was not until the introduction  
of wide-scale industrial clear-cutting [perceived by the Ojibway as being outside the range of  
compatible activities] that they complained to the federal government, expected it to "take up"  
their cause and when it did not, eventually decided to take action on their own behalf.  
Re Ontario's Evidence of Euro-Canadian Development in Ontario 1873-1930  
 Prior to 1894 in the Disputed Territory or prior to 1912 in the Keewatin Lands, there was,  
in my view, insufficient evidence upon which this Court could have properly concluded that the  
Ojibway were aware that Ontario was authorizing land uses that significantly interfered/were  
incompatible with Treaty Harvesting Rights so as to engage the federal interest under s. 91(24)  
and the Treaty or that the Ojibway viewed any particular uses as significant interferences with  
their Treaty Harvesting Rights sufficient to engage Canada's s. 91(24) jurisdiction or requiring  
Canada's authorization under the Treaty.  
 In my view, Ontario failed to recognize that there could be compatibility between  
Aboriginal and Euro-Canadian land uses and if there were, there would be no reason for the  
Ojibway to object. Ontario ignored that the parties mutually understood and anticipated that the  
Ojibway and Euro-Canadians would be sharing the use of the resources.  
 The evidence of Williams and Epp dealt with land uses per se, not land uses that  
significantly interfered with Treaty Harvesting Rights. It did not address any of: (1) the threshold  
for federal engagement; (2) what I have found to be a mutual expectation of compatibility  
between Ojibway and Euro-Canadian uses; or (3) the room for sharing resources.  
 The Epp and Williams evidence is not probative of Ontario's assertion that the Ojibway  
must have understood and accepted that Ontario could authorize land uses that would  
significantly and increasingly interfere with their Treaty Harvesting Rights.  
 Within the Disputed Territory, I note that neither Epp nor Williams could say whether the  
Ojibway knew it was Ontario [not the Dominion] that was authorizing land uses after 1890.  
 Chartrand's report, Ex. 60, contains the following:  
At pp. 366-367:  
Available documents do not permit a precise determination of the time and circumstances under  
which different Aboriginal signatories to Treaty 3 developed an understanding that non-Reserve  
lands surrendered by the Treaty came under provincial jurisdiction. However, available documents  
show that such an awareness had developed among a number of Treaty bands towards the mid - late  
1890s.  
At p. 368:  
One set of circumstances in which Treaty 3 Ojibway may have gained knowledge of Ontario's  
jurisdiction over non-Indian Reserve lands and natural resources, involves their growing employment  
in lumber and mining industries beginning in the 1890s. By this time, in the aftermath of the St.  
Catherine's Milling decision, these industries (outside Reserves) operated exclusively under Ontario  
 
Part 12. Findings of Fact Part II  
235  
Government licenses and / or patents. As documented in section 5.7, Treaty band member  
employment in lumber and mining operations became sufficiently significant economically in this  
period in the southern portion of the Treaty 3 territory to become consistently noted in annual reports  
of the Department of Indian Affairs. These records show that significant employment in lumber and  
mining had extended to the northern (English River) portion of Treaty 3 by the first decade of the 20th  
century.  
At p. 372:  
…Band members on reserves would have been typically informed of provincial decisions affected  
on-Reserve matters indirectly, through communication to and from Indian Agents who in turn, sought  
and obtained required information from superiors in the Department of the Indian Affairs. Thus, in  
such instances, Aboriginal knowledge of Ontario's jurisdiction would have been 'filtered' through the  
Department of Indian Affairs.  
[Emphasis added; references omitted.]  
 The Plaintiffs submitted that in any event, evidence respecting lack of complaints about  
"taking up" by Ontario in the Disputed Territory after 1894 was not directly relevant, because the  
1891 Legislation allowed Ontario to "take up" lands. By 1894 within the Disputed Territory,  
Canada had negotiated away the Harvesting Rights of the Treaty 3 Ojibway on lands "taken up"  
by Ontario.  
 I have held elsewhere in these Reasons that the 1891 Legislation that came into effect in  
1894 took away Harvesting Rights from the Ojibway on lands taken up that they otherwise  
would have had under the Treaty. I have held the 1891 Legislation amended the Treaty by  
allowing Ontario to "take up" lands in a manner visibly incompatible with Treaty Harvesting  
Rights. As a result, the federal interest could not have engaged after 1894 to protect Harvesting  
Rights on those lands. Even if there had been otherwise satisfactory evidence of knowledge and  
lack of complaints, in my view it would not have been possible to make much of Ojibway lack of  
complaints about land use authorizations per se after 1894 within the Disputed Territory.  
 I reject the submission of counsel for Ontario that since the Ojibway were unaware of the  
1891 Legislation, they should have complained about loss of Harvesting Rights by reason of  
"taking up" in the Disputed Territory. I think it unlikely that had Canada received complaints  
about matters it had expressly sanctioned under the 1891 Legislation, it would have nevertheless  
taken pains to record them. Canada would surely not have acted to address complaints about  
activities it had expressly authorized by legislation.  
 Similarly, it seems unlikely that federal Indian Agents would have gone to any lengths to  
explain to the Ojibway the adverse effects that the federal legislation would have in  
extinguishing Harvesting Rights on lands in the Disputed Territory "taken up" by Ontario.  
Chartrand agreed that Aboriginal knowledge was "filtered" through the Department of Indian  
Affairs.  
 In my view, Chartrand's evidence that there was some knowledge by the late 1890s that  
the Ojibway knew the lands had come under provincial jurisdiction is unpersuasive. For instance,  
the fact that Ojibway were employed by companies that had received their patents or licenses  
from Ontario does not prove they were aware of that fact.  
Part 12. Findings of Fact Part II  
236  
 I reject Ontario's submission that evidence regarding the lack of complaints regarding  
development within the Disputed Territory is useful in shedding light on their understanding of  
the Treaty in 1873.  
 In short, I conclude that the lack of Ojibway complaints in the Disputed Territory after  
1891 is not probative of any of the contentions Ontario is urging upon this Court.  
13. ANSWER TO QUESTION ONE  
Question One  
Does Her Majesty the Queen in Right of Ontario have the authority within that part of the lands  
subject to Treaty 3 that were added to Ontario in 1912, to exercise the right to "take up" tracts of land  
for forestry, within the meaning of Treaty 3, so as to limit the rights of the Plaintiffs to hunt or fish as  
provided for in Treaty 3?  
Emphasis added.]  
 I have answered Question One in seven steps:  
Step 1: The Principles of Treaty Interpretation  
Step 2: Application of the Principles of Treaty Interpretation to the Harvesting Clause  
(a)  
Wording of the Harvesting Clause  
(i) The Importance of the Written Word to the Ojibway and Canada  
(ii) The Literal Meaning of the Harvesting Clause  
(b)  
What were the mutual intentions of the parties as to the meaning of the Harvesting  
Clause as of 1873 that best reconcile the interests of the parties at the time the  
Treaty was signed?  
Step 3: Is an interpretation based on my finding of mutual intention Constitutional?  
Step 4: Bearing in mind the answers to Steps (1) (2) and (3) above, as of 1873, what is  
the answer to Question One?  
Step 5: The Effect of the 1891/1894 Legislation/Agreement  
(a)  
Did the 1891/1894 Reciprocal Legislation/Agreement declare Ontario's existing  
rights or did it give Ontario additional rights that it did not have under the Treaty?  
Did it apply to Keewatin after 1912 [and confer the same rights on Ontario in  
respect of Keewatin as it had with respect to the Disputed Territory before 1912]?  
(b)  
Step 6: The Devolution Argument.  
Step 7: In light of all of the above, what is the answer to Question One?  
 
Part 13. Answer to Question One  
237  
Step 1: The Law: Principles of Treaty Interpretation  
 Treaties define Aboriginal rights guaranteed by s. 35 of the Constitution Act. Section 35  
represents a "solemn commitment to recognizing and affirming Aboriginal rights." (Sparrow at  
page 1108.)  
 "Limiting reconciliation risks unfortunate consequences and is not honourable" (Haida  
Nation at para 33.)  
 "Difficulties associated with … definition of claims are to be addressed by assigning  
appropriate content to the duty, not by denying the existence of the duty." (Haida Nation at para.  
37.)  
 Treaties "may appear to be no more than contracts. Yet they are far more. They are a  
solemn exchange of promises made by the Crown and various First Nations. They often formed  
the basis for peace and the expansion of European settlement" (Sundown at para 24.)  
 The Crown was and is required to uphold the highest standards of conduct in the  
negotiation, interpretation and implementation of ancient treaties. They should not be interpreted  
as if they were commercial contracts negotiated at arm's length by parties with equal bargaining  
power. (Marshall at para 45.)  
 In Secession of Quebec, the Supreme Court of Canada, for the Court wrote:  
Consistent with this long tradition of respect for minorities, which is at least as old as Canada itself,  
the framers of the Constitution Act, 1982 included in s. 35 explicit protection for existing Aboriginal  
and treaty rights, and in s. 25, a non-derogation clause in favour of the rights of Aboriginal peoples.  
The "promise" of s. 35, as it was termed in Sparrow at p. 1083, recognized not only the ancient  
occupation of land by Aboriginal peoples, but their contribution to the building of Canada, and the  
special commitments made to them by successive governments. The protection of these rights, so  
recently and arduously achieved, whether looked at in their own right or as part of the larger concern  
with minorities, reflects an important underlying constitutional value. [Emphasis added.]  
 It is always assumed the Crown intends to fulfill its promises. Writing for the Court in  
Haida Nation, McLachlin C.J.C. wrote at paragraphs 19 and 20:  
[19] … In making and applying treaties, the Crown must act with honour and integrity.  
[20] …It is always assumed that the Crown intends to fulfill its promises" (Badger, supra, at para.  
41). This promise is realized and sovereignty claims reconciled through the process of honourable  
negotiation. It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees  
and in reconciling them with other rights and interests.  
 In Marshall, the Supreme Court of Canada held that the holder of rights to participate in a  
particular activity may enjoy special treaty protection against interference with its exercise, even  
where the activity may also be enjoyed by others… (Paragraphs 45 and 47.)  
 "The very nature of … treaties … commands a generous interpretation and uncertainties,  
ambiguities or doubts should be resolved in favour of the natives." (Van der Peet at para. 143.)  
 
Part 13. Answer to Question One  
238  
 In Nowegijick, Dickson J. (as he then was) wrote:  
At p. 36:  
.... It seems to me, however, that treaties and statutes relating to Indians should be liberally construed  
and that doubtful expressions resolved in favour of the Indians. If the statute contains language which  
can reasonably be construed to confer tax exemption that construction, in my view, is to be favoured  
over a more technical construction which might be available to deny exemption  
…
At p. 202:  
We must… in these cases, have regard to substance and the plain and ordinary meaning used rather  
than to forensic dialectics.  
 Technical legal concepts should not be used by governments to defeat provisions inserted  
to protect the Indians.  
 In Mitchell, La Forest J. held at p. 131 that, from 1763, "the Crown has always  
acknowledged that it is honour-bound to shield Indians from any efforts by non-natives to  
dispossess Indians of the property which they hold qua Indians…" Exemption from taxation  
guards against the possibility that one branch of government through imposition of taxes could  
erode the full measure of benefits given by the branch of government entrusted with supervision  
of Indian affairs. La Forest J. held at p. 135 that:  
. . . when the Crown acquits treaty and ancillary obligations . . . it cannot be accepted that Indians  
ever supposed that their treaty right to these entitlements could ever be compromised on the strength  
of subtle legal arguments . . . It would be highly incongruous if the Crown, given the tenor of its  
treaty commitments, were permitted, through the imposition of taxes, to diminish in significant  
measure the ostensible value of the benefits conferred.  
[Emphasis added.]  
 In Mitchell, Dickson C.J.C., concurring with LaForest J., wrote at p. 98  
…Aboriginal understandings of words and corresponding legal concepts in Indian treaties are to be  
preferred over more legalistic and technical constructions. In some cases, … the interpreter will only  
be able to perceive that there is an ambiguity by first invoking the [Aboriginal understandings of  
words.]  
 In Morris, Deschamps and Abella JJ. wrote at para. 24: "The oral promises made when  
the treaty was agreed to are as much a part of the treaty as the written words."  
 LaForest J. wrote in Mitchell at p. 130: "The sections of the Indian Act relating to the  
inalienability of Indian lands seek to give effect to this protection by interposing the Crown  
between the Indians and the market forces which, if left unchecked, had the potential to erode  
Indian ownership of these reserve lands." [Emphasis added.]  
 In Mitchell v. MNR, the Supreme Court of Canada said at paragraph 9: "[A]n obligation  
[arose] to treat Aboriginal peoples fairly and honourably and to protect them from exploitation."  
 LaForest J. wrote in Mitchell at p. 136:  
…an interpretation of s. 90(1)(b), which sees its purpose as limited to preventing non-natives from  
hampering Indians from benefitting in full from the personal property promised Indians in treaties  
and ancillary agreements, is perfectly consistent with the tenor of the obligations that the Crown has  
always assumed vis-à-vis the protection of native property.  
Part 13. Answer to Question One  
239  
…
I do not take issue with the principle that treaties and statutes relating to Indians should be liberally  
construed and doubtful expressions resolved in favour of the Indians. In the case of treaties, this  
principle finds its justification in the fact that the Crown enjoyed a superior bargaining position when  
negotiating treaties with native peoples. From the perspective of the Indians, treaties were drawn up  
in a foreign language, and incorporated references to legal concepts of a system of law with which  
Indians were unfamiliar. In the interpretation of these documents it is, therefore, only just that the  
courts attempt to construe various provisions as the Indians may be taken to have understood them.  
 Binnie J said in Marshall at paragraph 52:  
I do not think an interpretation of events that turns a positive …trade demand into a negative  
…covenant is consistent with the honour and integrity of the Crown… the trade arrangement must be  
interpreted in a manner which gives meaning and substance to the promises made by the Crown  
[Emphasis added.]  
 The fundamental objective of modern day treaty interpretation is reconciliation of  
Aboriginal and non-Aboriginal peoples and their respective claims, interests and ambitions.  
 In Morris, Deschamps and Abella JJ. wrote for the majority at para. 361:  
The goal of Treaty interpretation is to choose from among the various possible interpretations of  
common intention the one which best reconciles the interests of both parties at the time the Treaty  
was signed. This means that the promises in the Treaty must be placed in their historical, political,  
and cultural contexts to clarify the common intention of the parties and the interests they intended to  
reconcile at the time.  
Step 2: The Application of the Principles of Treaty Interpretation  
2 (a) The Wording of the Harvesting Clause  
2(a)(i) The Importance of the Written Word To the Ojibway and Canada  
 Counsel for the Plaintiffs submitted that the Defendants are asking this Court to disregard  
the express reference to the Dominion in the Harvesting Clause. In all the circumstances here, it  
would be unjust to ignore words deliberately inserted by the Commissioners to protect their  
rights, which plainly require that a certain process be followed before their Harvesting Rights  
could be limited or extinguished. The wording of the Clause makes it clear that only the  
Government of the Dominion of Canada can "take up" or authorize "taking up" under the Treaty  
and thereby limit their Treaty Harvesting Rights.  
 Even though they could not read or write, the Ojibway understood that having oral  
promises committed to writing was important because it made the promises easier to enforce.  
 I have accepted Lovisek's evidence that they placed great importance on the written word.  
The manner in which they signed the written Treaty indicated the significance they attached to it.  
After the Treaty was signed, the Chiefs asked for a copy of the Treaty written on parchment, so  
"it could not be rubbed off." Morris later reported to Ottawa that they had again asked for a copy  
of the Treaty.  
     
Part 13. Answer to Question One  
240  
 I have also accepted Von Gernet's evidence that from the perspective of the Privy  
Council that ratified the Treaty in late October 1873, the formal written text of the Treaty,  
including the explicit reference to the Dominion Government, was the Treaty.  
 Like the Treaty Commissioners, members of the Privy Council would have understood  
the reference to the "Government of the Dominion of Canada" in the Harvesting Clause to be to  
the federal government. (Dominion Day was the name of the holiday commemorating the  
formation of Canada as a dominion on July 1, 1867. The holiday was not renamed "Canada Day"  
until October 27, 1982; at the time of the Treaty and for many years afterward, the term  
"Dominion" was widely known to refer to the whole of Canada.)  
 Counsel for Ontario submitted, in effect, that since Morris did not explain about the  
different emanations of the Queen's Government in Canada and since the Ojibway could not read  
the reference to the Government of Canada in the Treaty Harvesting Clause, and McKay  
probably did not specifically refer to Canada in explaining the Treaty, it would not violate the  
Honour of the Crown to ignore its plain wording. Focusing on ownership rather than Harvesting  
Rights, they submitted at para. 420 of their written closing submissions that "the language used  
to describe internal divisions of the Crown in the Treaty language was not material to the Treaty  
bargain."  
 Counsel for Ontario submitted that the principle that doubtful or ambiguous expressions  
should be taken to have the meaning most favourable to the Indians, does not suggest that  
unambiguous treaties should be interpreted so as to create benefits to the Indians that were not  
intended. The principle that "any limitations which restrict the rights of Indians under treaties  
must be narrowly construed" is subordinate to the principle that "the overarching goal of treaty  
interpretation, discerning the common intention of the parties to the treaty when assessed in a  
purposive and contextual manner." Earlier emphasis on the written treaty as a complete record of  
the treaty negotiations and the treaty itself (see for example Horse) has been supplanted by  
emphasis on ensuring that the Honour of the Crown is fulfilled. He quoted Badger at paragraph  
14 as follows:  
As a result, it is well settled that the words in the treaty must not be interpreted in their strict technical  
sense nor subjected to rigid modern rules of construction. [Emphasis in original.]  
 I note that the next two sentences of Badger read as follows:  
Rather, they must be interpreted in the sense that they would have actually been understood by the  
Indians at the time of the signing. This applies, as well, to those words in a Treaty which would  
impose a limitation on the right which has been granted.  
 Here, counsel for Ontario submitted that the principle that treaties should be interpreted  
flexibly should be applied to Ontario's benefit.  
 Counsel for Ontario submitted the Plaintiffs' "narrow literal interpretive approach"  
"cannot stand," as it is "divorced from the intentions of the parties and Constitutional reality."  
Their written argument contained the following:  
Part 13. Answer to Question One  
241  
363. While the starting point to determine the common intention and mutual understanding of the  
parties is the text of the treaty, consideration must also be given to extrinsic evidence of the historical  
and cultural context of the treaty, even in the absence of any ambiguity in the treaty text.  
…
365. [I]n the Aboriginal context, courts must "go beyond the usual restrictions imposed by the  
common law, in order to give effect to the true purpose of the dealings" between Aboriginal peoples  
and the Crown. This principle applies even where a technical construction is advanced by an  
Aboriginal party.  
 Counsel for the Plaintiffs denies the wording of the Harvesting Clause is "divorced from  
the intentions of the parties and Constitutional reality." Focusing on the subject matter of the  
Harvesting Clause, Harvesting Rights (not property rights), he submitted that the Clause accords  
with both. In 1873, Canada was the entity with control over Harvesting Rights and the only  
entity that could limit or extinguish them.  
 The Clause as written contemplates on its face that subjects of the Dominion may be  
authorized by Canada to "take up" lands under the Treaty/to use lands in a manner visibly  
incompatible with Harvesting Rights. Where Canada is not the owner of the land, the words of  
the Treaty on their face contemplate a two-step approval process in the event that land uses  
threaten to interfere with Harvesting Rights: (1) authorization to use the land from the owner of  
the land; and (2) additional authorization from Canada.  
 Counsel for the Plaintiffs submitted the Ojibway are not asking this Court [as the First  
Nations did in Marshall or in Sioui] to imply terms in the Treaty. They are content with the  
language contained in the formal Treaty. Where, as here, the Treaty Commissioners clearly,  
deliberately and unambiguously expressed the mutual intentions of the parties and made it clear  
that only Canada could limit the Ojibway right to hunt over the ceded territory, the Court should  
enforce the Treaty wording.  
2(a)(ii) The Literal Meaning of the Words  
 The words of the Harvesting Clause in the formal Treaty are as follows:  
Harvesting Clause  
… the said Indians, shall have the right to pursue their avocations of hunting and fishing throughout  
the tracts surrendered as hereinbefore described … saving and excepting such tracts as may from time  
to time be required or taken up for settlement, mining, lumbering, or other purposes by her said  
Government of the Dominion of Canada, or any of the subjects thereof duly authorized therefore by  
the said Government.  
 The primary thrust of Ontario's argument is that the words in the Harvesting Clause,  
literally interpreted, make no sense. Only owners can "take up" lands.  
 Counsel for the Plaintiffs submitted the words do make sense. "Taking up" means what  
the Supreme Court of Canada has said it means: using or authorizing uses of lands in a manner  
incompatible/inconsistent with Harvesting Rights.  
 
Part 13. Answer to Question One  
242  
Conclusion Re 2(a)(i) and 2(a)(ii)  
 The process clause defines the circumstances under which the Harvesting Right can be  
limited. Given the adverse effects that the application of the limitation could have on the  
protection the Courts will extend and the level of scrutiny to be applied to governmental actions  
that impinge upon Treaty Rights, to "read-out" this process clause would be unwarranted.  
 In my view, the plain and literal wording of the Treaty is that the Ojibway will have  
unlimited Harvesting Rights throughout the tract surrendered, i.e., over all the ceded territory,  
off-reserve as well as on-reserve, unless the process specified in the Treaty is followed. The  
Ojibway are entitled to exercise their Harvesting Rights unless Canada has authorized their  
limitation or extinguishment.  
 A literal reading of the Treaty supports the Plaintiffs' position without any reference to  
any contextual evidence. While Ontario can authorize the use of lands under s. 109, its rights are  
limited by Treaty Harvesting Rights. Where another reading would be to the disadvantage of the  
Ojibway, that reading should be rejected.  
2(b) What were the Mutual Intentions of the Parties as to the Meaning of the Harvesting  
Clause as of 1873 that best reconcile the interests of the parties at the time the Treaty was  
signed?  
 Rather than simply relying on the plain and literal interpretation of the Harvesting Clause,  
having regard to all of the evidence and other principles of treaty interpretation set out herein, I  
have gone further and chosen among the various possible interpretations of common intention  
the one that best reconciles the interests of the parties at the time the Treaty was signed.  
 I have focused on the evidence about this particular Treaty. Chartrand gave evidence that  
the specific facts here must be carefully examined. The Supreme Court of Canada has repeatedly  
held that treaty rights should be determined having due regard to the particular terms, context  
and history of the treaty in question (e.g., Badger at 343-344.) In considering the intentions of  
the parties, a trial Court is not to leap from one treaty to another but to base its findings on the  
specific facts related to the particular treaty under consideration.  
 In Sundown, Cory J wrote:  
25. Treaty rights, like Aboriginal rights, are specific and may be exercised exclusively by the First  
Nation that signed the treaty. The interpretation of each treaty must take into account the First Nation  
signatory and the circumstances that surrounded the signing of the treaty.  
…
Thus, in addition to applying the guiding principles of treaty interpretation, it is necessary to take into  
account the circumstances surrounding the signing of the treaty and the First Nations who later  
adhered to it. For example, consideration should be given to the evidence as to where the hunting  
and fishing were done and how the members of the First Nation carried out these activities.  
 I have considered that I must not only look at the unique specific circumstances, but I  
must also consider the Aboriginal perspective.  
   
Part 13. Answer to Question One  
243  
 I have already given reasons for finding that the Ojibway understood they were dealing  
with the Queen's Government of Canada, and were relying only on the Government of Canada to  
implement and enforce the Treaty.  
 While they understood they were giving up exclusive use of all the Treaty 3 lands, they  
did not agree to unlimited uses by the Euro-Canadians in a manner that would significantly  
interfere with their Harvesting Rights. They agreed to share use on the express promise that their  
Harvesting Rights would continue as in the past. I reject the submission of Ontario that the  
Ojibway understood that unlimited development was "the tangible and anticipated manifestation"  
of the Treaty agreement.  
 I have considered the submission of Ontario, citing Ireland at p. 589, that the rights of  
Canada and the Ojibway must be balanced and thereby reconciled. In essence, a "taking up" by  
Ontario limitation on Harvesting Rights should be implied. I have rejected the submission of  
counsel for Ontario that the "taking up" limitation operates as confirmation of a geographic  
limitation that follows automatically from the cession of lands under the Treaty and the  
reconciliation of that central provision with the promise of ongoing Harvesting Rights.  
 In all the circumstances I have detailed, a "taking up" limitation by Ontario cannot be  
implied with respect to this Treaty. It is not necessary to do so to reconcile Euro-Canadian land  
uses and Harvesting Rights. Here, everyone understood they would be compatible. In fact, to do  
so, given the specific promises I have found were made to the Ojibway and having regard to the  
other circumstances as I have found them, would be contrary to what the Ojibway could  
reasonably expect and contrary to what the principle of the Honour of the Crown requires of our  
governments.  
 The Commissioners did not anticipate or require the Ojibway to agree to increasing  
reduction of their harvesting areas (away from the Dawson Route and CPR right of way), let  
alone such reduction without federal authorization.  
 I have already referred to the Commissioners' extraordinary promises that I have found  
were made. After the end of the unpromising negotiations on October 2, the Shorthand Reporter  
noted in the Manitoban that it was "extremely doubtful whether an agreement could be come to  
or not."  
 The Commissioners needed the Rainy River Chiefs to make the Treaty. The Dawson  
Route was along the Rainy River. The Rainy River Chiefs were "careless" about entering into a  
treaty. While Morris might have been able to get the Chiefs from the north and east to sign  
without such a promise, that result would not have achieved Canada's needed end.  
 On October 3, 1873, in the presence of the Commissioners, when the Chief demanded in  
Ojibwe words that McKay understood to mean they must be able to be make a living ("hunting  
and wild rice harvest")/to have their Harvesting Rights, McKay advised the Ojibway in the  
Commissioners' presence that they would be able to hunt and pursue their wild rice harvest as in  
Part 13. Answer to Question One  
244  
the past. Nolin recorded McKay's representation in his notes. McKay then turned to the  
Commissioners and said, "Of course I told them so."  
 Dawson recalled that in 1873 the Commissioners had promised they would forever have  
the use of their fisheries to induce the Ojibway to enter into the Treaty. He noted it had great  
weight with the Ojibway, who had been refusing to enter into the Treaty.  
 I have found that the Commissioners believed that given the particular circumstances of  
Treaty 3, including the obstinate nature of the Ojibway, the barren and sterile characteristics of  
most of its land, its poor prospects for agricultural uses, the urgency of completing the Treaty  
including a pressing need for security so the December 31, 1876 deadline for completing the  
CPR through the Treaty 3 territory could be met, it was not only reasonable but also necessary to  
make the promise of the continuing Harvesting Rights as in the past.  
 The Chiefs were demanding continuing Harvesting Rights as in the past. If the promise  
had not been made, the Rainy River Ojibway would have refused to enter into the Treaty.  
 I have already detailed the reasons for concluding that Canada did not intend that if  
Ontario were held to be the owner of Treaty 3 lands, it would have an open-ended power to  
remove Ojibway Treaty Harvesting Rights from tracts of land "taken up" in their traditional  
territory, no matter how significant the impact.  
 I have rejected the submission of Ontario that:  
421 … no one – neither the Aboriginal parties to Treaty 3, nor the Treaty Commissioners (nor  
Canada or Ontario) – thought or intended that two levels of government might be required to take  
action in order to authorize the taking up of land for settlement, mining or lumbering within the  
territorial boundaries of the North-West Territories, or Ontario, much less that one level of  
government might act as a gatekeeper over another. [It] was not part of [the] mutual understanding.  
and the submission that involvement of more than one government would have been unheard of,  
"inconceivable," in 1873.  
 I have found Morris did intend a two-step process to be followed in the Disputed  
Territory in the event that Canada lost the Boundary Dispute whenever Ontario purported to  
significantly interfere with Treaty Harvesting Rights. Even in 1873, there was nothing novel or  
unforeseen about the possibility of intersecting jurisdictions, especially given Morris' knowledge  
of the existence of the Boundary Dispute and the possibility that Ontario could be held to be  
beneficial owner of Treaty 3 lands. The wording chosen clearly anticipated the possibility of  
involvement of more than one government. While two governments exercise legitimate  
legislative jurisdiction, it is eminently foreseeable that two governments may be simultaneously  
involved in authorizing land use. Morris clearly understood that in 1873 when he referred to  
Canada in the Harvesting Clause. That it was foreseeable that more than one government could  
have a role in authorizing uses of land is illustrated by Chancellor Boyd's analysis in Seybold.  
His reasons illustrate that he did not understand "taking up" to be an incident of ownership. He  
recognized that where intersecting jurisdictions were in play, more than one government could  
be involved in authorizing land uses. Boyd had also been the trial judge in St. Catherine's Milling  
Part 13. Answer to Question One  
245  
and was well aware when he decided Seybold that Ontario was the beneficial owner of the land.  
His reasoning illustrates that on the face of intersecting jurisdictions, involvement of more than  
one level of government in authorizing uses of lands was not "inconceivable" in his time.  
 Monitoring and enforcement of Treaty Rights were seen as necessary to protect Canada's  
wards, the Ojibway and to protect Canada's own strategic interests, as unhappy Ojibway could  
have interfered with the building of the CPR and/or travellers over the Dawson Route.  
 I have found Morris understood that a loss of the Boundary Dispute would place the  
Ojibway in greater jeopardy, create a greater need for Canada to exercise its legitimate s. 91(24)  
jurisdiction and interpose itself between them and Ontario the local government (just as the  
Imperial Government had done earlier in order to protect the Indians in the strategic interests of  
the central government) than if Canada won the Boundary Dispute.  
 Morris understood that if the Treaty had allowed any owner to unilaterally authorize uses  
interfering with Harvesting Rights without Canada's further authorization/involvement, the legal  
result would be at least threefold: (1) the Ojibway would not be allowed to harvest on those lands  
[the geographical area of the lands available for harvesting would be increasingly diminished,  
contrary to the promise made as part of Canada's counter-offer on October 3]; (2) if the Ojibway  
did not have Treaty Harvesting Rights on those lands, the Courts could not require Ontario to  
justify its actions in "taking up" those lands even if they significantly infringed Treaty 3  
Harvesting Rights; (3) Canada would be powerless to protect Ojibway Harvesting Rights in  
respect of those lands [with a concomitant powerlessness to protect Canada's other related  
strategic interests.] That would run contrary to the mutual intention of the parties at the time the  
Treaty was made, fly in the face of the express promises solemnly made by Canada to the  
Ojibway during the negotiations, violate the Honour of the Crown and have the potential to  
threaten security in the West.  
 I have held the Plaintiffs' "narrow, literal, interpretive approach" is not divorced from the  
intentions of the parties. There is no "mismatch" between the wording of the Treaty and the  
mutual intention of the parties. Canada, the only government that can authorize uses that  
significantly interfere with Treaty Harvesting Rights, intended to protect the Ojibway by making  
it necessary for Canada to authorize any use of land that significantly interfered with Ojibway  
Harvesting Rights under the Treaty.  
 After having considered all the evidence and the various interpretations of common  
intention, the one that best reconciles the interests of both parties at the time the Treaty was  
signed, the chosen interpretation is that Canada promised continuous Harvesting Rights without  
significant interference away from the Dawson Route and CPR right-of-way and the Ojibway  
relied upon Canada and only Canada to implement and enforce those Rights. Canada intended  
that in the event it lost the Boundary Dispute, Ontario would not be able to "take up"  
lands/authorize any land uses that would significantly interfere with Harvesting Rights unless  
Canada also authorized such "taking up."  
Part 13. Answer to Question One  
246  
 In this litigation, it is not necessary for me to decide the specifics of what process Canada  
would have been required to follow under the Treaty in the event its own authorizations  
threatened to interfere with Treaty Harvesting Rights. [We do know that before October 1873,  
Canada had set up a process of consultation among federal departments to coordinate exercise of  
federal land granting power and s. 91(24) powers and responsibilities and that in the years  
immediately following 1873, it had taken steps to actively protect Harvesting Rights.]  
 I have found that Morris did understand that Canada's s. 91(24) jurisdiction could limit  
provincial power over property. While he did not intend that Canada would appropriate  
provincial assets, he did intend to ensure that Harvesting Rights could and would be protected.  
He did intend that if Canada lost the Boundary Dispute and Ontario was proposing to take action  
that would significantly interfere with Harvesting Rights, both provincial and federal  
authorizations would be required. He understood that the use of land within Ontario could have  
two aspects, a proprietary aspect governed by the province, and an aspect governed by Canada  
under its s. 91(24) jurisdiction.  
 Given my finding that the Ojibway understood and agreed that they were dealing with  
Canada and only Canada, and that Canada intended to keep its promises, it is not necessary to  
determine what the legal effect of a differing Ojibway misunderstanding would have been. I do  
note that the Treaty did not specify that the Queen could limit Treaty Harvesting Rights but that  
the Dominion of Canada could. I have found the Commissioners intended that the burden of  
Treaty Harvesting Rights on s. 109 rights could only be removed by Canada, the guardian of  
Indians under s. 91(24). I find that the Treaty required that if Canada lost the Boundary Dispute,  
the authorization process by Canada must be followed in respect of each and every proposed use  
with the potential to significantly interfere with Harvesting Rights.  
 I find that Morris, an advocate of strong central powers, would not have wanted to confer  
powers on Ontario to the detriment of the Ojibway contrary to Treaty promises made by Canada.  
He would not have wanted to confer on Ontario a power to limit or extinguish the Harvesting  
Rights the Commissioners were solemnly promising with the effect of exposing those Rights to  
significantly more erosion than either they or the Ojibway intended.  
Step 3: Was the Harvesting Clause as written Constitutional?  
 Ontario based its argument on its exclusive proprietary jurisdiction over lands in Ontario.  
It characterized this as a case where the Plaintiffs are attacking Ontario's rights to exercise the  
prerogatives and incidents of land ownership. In his submissions on the Constitutionality of the  
Harvesting Clause, as throughout this case, counsel for Ontario exhorted this Court to focus only  
on its proprietary rights and to recognize their importance to Ontario. It demonstrated a palpable  
reluctance to have this Court consider the importance to the Ojibway of their Treaty Harvesting  
Rights.  
 Ontario submitted Treaty 3 must be interpreted/approached in a manner consistent with  
the evolving interpretation of the Constitutional framework of Canada, so that Ontario is able to  
"take up"/develop lands and extinguish treaty rights wherever Ontario authorizes settlement,  
 
Part 13. Answer to Question One  
247  
mining or lumbering. To reach a contrary interpretation would be inconsistent with Ontario's  
proprietary jurisdiction under s. 109 and overturn a cardinal feature of provincial fiscal  
resources. This would be a dramatic change to the balance of Canadian federalism as it applies in  
the Keewatin Lands and has been so applied for over a century, and would represent a marked  
and unwarranted incursion into provincial proprietary and legislative jurisdiction.  
 Counsel for Ontario submitted that even if the Treaty Commissioners intended to give  
Canada a role in "taking up" lands in order to protect the Ojibway, mention of Canada in the  
"taking up" clause was unconstitutional.  
 Not surprisingly, I have held that when Morris drafted the Harvesting Clause, he was  
focusing on Harvesting Rights, not property rights.  
 I have found Morris, the Commissioners and Privy Council all intended and understood  
"taking up by the Dominion of Canada" did not relate to ownership rights but to Canada's s.  
91(24) power to protect, or alternatively restrict, otherwise unrestricted Harvesting Rights.  
 In my view, in considering the Constitutionality of the Harvesting Clause as written, it  
would be incorrect for this Court to consider only Ontario's proprietary rights. In my view, the  
task of this Court in considering the Constitutional issue here is to determine, as Vipond said,  
how provincial proprietary rights and powers interact or mesh with federal Constitutional rights  
and powers over Indians. Although he held that Ontario owned the Disputed Territory, including  
the timber on it, Lord Watson in St Catherine's Milling nevertheless recognized the reality of  
intersecting jurisdictions, just as Morris had done in 1873, and the Courts have done ever since.  
The intersecting authorities are, on the provincial side, administrative control over provincial  
lands and resources, and on the federal side, Indians and lands reserved for Indians.  
Does Canada have a Constitutional Role under s. 91(24) in protecting Harvesting Rights in  
Ontario?  
 There are two Constitutional protections for Indians built into the structure of the  
Constitution Act, 1867 – the assignment of jurisdiction over Indians and Indian Affairs to the  
federal government in s. 91(24) and the qualification of provincial ownership rights in s. 109.  
 This Court must decide whether Morris was properly acting within Canada's s. 91(24)  
jurisdiction when he deliberately opted to specifically mention "taking up by Canada" in the  
Harvesting Clause, as I have found to protect Treaty 3 Harvesting Rights.  
 Counsel for Ontario submitted that St. Catherine's Milling is determinative. Morris'  
reference to Canada in the Harvesting Clause is unconstitutional. The JCPC in that case made it  
clear that since Ontario had beneficial ownership of the Disputed Territory, it had exclusive  
jurisdiction over it. The JCPC recognized Ontario's exclusive authority to administer and dispose  
of Crown lands within the province; since 1888, all patents, licences and other authorizations  
over Crown lands within the province have been issued by Ontario, "without federal  
supervision." St. Catherine's Milling and Smith confirmed that (outside of treaty reserves) the  
federal government's s. 91(24) jurisdiction over lands subject to Indian title was removed once  
 
Part 13. Answer to Question One  
248  
the lands were surrendered. To require Ontario to obtain federal authorization would be at odds  
with the recognition of exclusive provincial authority over ceded lands expressed in St.  
Catherine's Milling. See Sundown at paras. 34-35; Saanichton Marina at 171; Smith at 252; St.  
Catherine's Milling at 59.  
 Counsel for Canada submitted that Smith stands for the proposition that post-surrender,  
the provincial title is "relieved of the burden of the Indian rights under s. 91(24)." He relied on  
the following passage in Smith in support of the proposition that after the 1873 surrender, Canada  
had no continuing s. 91(24) jurisdiction off-reserve. At p. 564:  
The effect of a complete release, therefore, would be the withdrawal of these lands from Indian use  
within the contemplation of s. 91(24) of the Constitution Act. As found in St. Catherine's, the title of  
the Province would be unencumbered by any operation of s. 91(24).  
 Counsel for the Plaintiffs distinguished Smith on its facts. In that case there was a  
complete surrender of land with no reservation of Harvesting Rights.  
 Counsel for the Plaintiffs submitted that Ontario and Canada have misapprehended the  
modern law of the division of powers by failing to account for the fact that provincial ownership  
rights and jurisdiction in respect of public lands are qualified by federal jurisdiction over Indians  
and Treaty Rights and by the Harvesting Clause in the Treaty reserving Harvesting Rights to the  
Ojibway. St. Catherine's Milling and Smith do not stand for the proposition that Canada had no  
ongoing s. 91(24) jurisdiction after the Treaty was made. In St. Catherine's Milling, the position  
of the parties was that the land was free and clear of any interest except the Treaty Harvesting  
Right. Lord Watson specifically reserved judgment regarding how the federal government's s.  
91(24) jurisdiction with respect to Harvesting Rights would mesh with Ontario's powers under s.  
109.  
 Counsel for the Plaintiffs submitted that counsel for Ontario overlooked Lord Watson's  
statement in St. Catherine's that the JCPC was not determining how the hunting rights were to be  
limited or to what extent. It clearly declined to address or resolve that issue. Lord Watson  
continued:  
The fact, that it still possesses exclusive power to regulate the Indians' privilege of hunting and  
fishing, cannot confer upon the Dominion power to dispose, by issuing permits or otherwise, of that  
beneficial interest in the timber which has now passed to Ontario.  
…
There may be other questions behind, with respect to the right to determine to what extent, and at  
what periods, the disputed territory, over which the Indians still exercise their avocations of hunting  
and fishing, is to be taken up for settlement or other purposes, but none of these questions are raised  
for decision in the present suit.  
 In the first sentence, Lord Watson recognized that even though the federal government  
had no proprietary interest in the timber, Canada, not Ontario, still had exclusive power to  
regulate the hunting right. There is an ongoing federal jurisdiction with respect to hunting and  
fishing. Implicit in those words was a recognition by the JCPC that the Treaty Harvesting Rights  
existed and that Ontario's s. 109 rights were subject to those Treaty Rights.  
Part 13. Answer to Question One  
249  
 Counsel for the Plaintiffs submitted that the arguments of both governments that the  
JCPC in St. Catherine's Milling effectively decided this case, by determining that Ontario has  
title to the lands and that therefore there can be no federal role in determining where, when, how  
or to what extent Ontario may exercise its proprietary rights, is hard to reconcile with Lord  
Watson's statement to the effect that the JCPC was not determining how hunting rights were to  
be limited.  
 Counsel for the Plaintiffs also referred to Saywell's evidence that in St. Catherine's  
Milling, Lord Watson was indicating that the JCPC was not deciding where, when, how and by  
whom lands could be taken up.  
 He referred as well to Vipond's evidence that Lord Watson was referring to the important  
question, involving how the federal government's s. 91(24) obligation to protect hunting and  
fishing rights would mesh with the province's s. 109 proprietary rights and also that the JCPC did  
not decide that Ontario, the owner of the lands in the Disputed Territory, was free and clear of  
the burden of the Ojibway hunting and fishing mentioned in the Treaty.  
 Vipond's cross-examination on February 26, 2010 contained the following at pp 102-103:  
Q. So it's your view -- and not speaking as a lawyer but a political scientist, that Lord Watson is  
conveying the message that the question of how the federal government's jurisdiction with respect to  
the hunting rights would interact with the province's power to take up lands is a matter that was not  
settled by the St. Catherines Milling case?  
A. That's how I interpret it, yes.  
Q. And in terms of understanding the actions of political actors following the St. Catherines Milling  
decision, that's a significant passage, isn't it?  
A. Yes.  
[Emphasis added.]  
 Vipond agreed on February 26, 2010 at p. 104 that the issue decided in St. Catherine's  
Milling was who had the right to issue timber licenses on lands in Ontario. He agreed that the  
answer to that question depended on who was the owner of the land. Lord Watson held that  
Ontario was the owner and the federal government had no right to issue licenses or appropriate  
Ontario's beneficial interest in timber in Ontario. At the same time, he opined that Ontario's  
proprietary interests and the federal government's exclusive power to regulate the Indians'  
privilege of hunting and fishing had to be understood in relation to each other. How the two  
interests mesh with each other is a matter for Constitutional interpretation and legal doctrine.  
 The Plaintiffs here are not claiming that Canada has proprietary rights over lands in  
Ontario. They are claiming that Canada has legislative rights under s. 91(24) to protect Indians as  
required, including protecting their Treaty Rights.  
 I have already held that when Morris drafted the Treaty, he understood that the federal  
government would not be able to appropriate the proprietary rights of Ontario were Canada to  
lose the Boundary Dispute. At the same time, he understood Canada would be able to deal with  
matters properly within its s. 91(24) jurisdiction, including Treaty Rights. Acting as a Dominion  
official, he recognized the importance of specifying which level of government was responsible  
for what. Recognizing Canada's obligation to protect Treaty Rights, he mentioned Canada in the  
Part 13. Answer to Question One  
250  
Harvesting Clause to make it clear that Canada would be able to protect them in the event it lost  
the Boundary Dispute and a conflict developed between Ontario and Canada over development  
initiatives that could adversely affect Harvesting Rights.  
 Morris specified a process in the Harvesting Clause that must be followed in the event an  
entity other than Canada was purporting to interfere with the Treaty Harvesting Rights the  
Commissioners had promised.  
(1) Conclusion re Section 91(24) Jurisdiction/Powers  
 Morris' reference to Canada in the Harvesting Clause was a proper exercise of Canada's s.  
91(24) jurisdiction.  
 Only the federal government can make treaties. (See Delgamuukw at para. 175.)  
 Although in 1873 he may have believed that federal powers were greater than they later  
were held to be, Morris was correct that Canada could adversely affect proprietary rights by a  
valid exercise of its s. 91(24) jurisdiction over Indians.  
 Treaty Harvesting Rights were properly the subject of federal jurisdiction. A valid  
exercise of s. 91(24) power could affect uses of land within Ontario. So long as the federal role  
was truly constrained to its federal jurisdiction, exercise of that jurisdiction would be warranted.  
 More than one government could affect uses of lands within a province. Even when the  
federal government does not have proprietary interests in relation to the federal head of power  
under which it is acting, it can deal with federal matters such as fisheries or Indians [including  
treaty rights.]  
 In the Fisheries Case, a case involving s. 91 jurisdiction over fisheries, Lord Herschell  
wrote at pp. 712-713:  
Their Lordships are of the opinion that the 91st section of the British North America Act did not  
convey to the Dominion of Canada any proprietary rights in relation to fisheries. Their Lordships  
have already noticed the distinction which must be borne in mind between rights of property and  
legislative jurisdiction. It was the latter only which was conferred under the heading "Seacoasts and  
Inland Fisheries" in s. 91. Whatever proprietary rights in relation to fisheries were previously vested  
in private individuals or in the provinces respectively remained untouched by that enactment.  
Whatever grants might previously have been lawfully made by the provinces in virtue of their  
proprietary rights could lawfully be made after that enactment came in force. At the same time it must  
be remembered that the power to legislate in relation to fisheries does necessarily to a certain extent  
enable the Legislature so empowered to affect proprietary rights. An enactment, for example,  
prescribing the times of year during which fishing is to be allowed, or the instruments which may be  
employed for the purpose (which it was admitted the Dominion Legislature was empowered to pass)  
might very seriously touch the exercise of proprietary rights, and the extent, character and scope of  
such legislation is left entirely to the Dominion Legislature. The suggestion that the power might be  
abused so as to amount to a practical confiscation of property does not warrant the imposition by the  
Courts of any limit upon the absolute power of the legislation conferred. The supreme legislative  
power in relation to any subject matter is always capable of abuse, but it is not to be assumed that it  
will be improperly used; if it is, the only remedy is an appeal to those by whom the Legislature is  
 
Part 13. Answer to Question One  
251  
elected. If, however, the Legislature purports to confer upon others proprietary rights where it  
possesses none itself, that, in their Lordships' opinion is not an exercise of the legislative jurisdiction  
conferred by s. 91. If the contrary were held, it would follow that the Dominion might practically  
transfer to itself property which has, by the British North America Act, been left to the provinces and  
not vested in it.  
[Emphasis added.]  
 Duff J. for the majority in the Water Powers reference case highlighted the difference  
between unwarranted federal interference with a provincial jurisdiction and a legitimate federal  
constraint on provincial action. He explained at page 219 the way to reconcile the two  
jurisdictions:  
We must, as best we can, reconcile the control by the provinces of their own assets as assets, with the  
exercise by the Dominion of its exclusive powers for the purposes which those powers were intended  
to subserve. This can only be accomplished by recognizing that the proprietary rights of the provinces  
may be prejudicially affected, even to the point of rendering them economically valueless, through  
the exercise by the Dominion of its exclusive and plenary powers of legislation under the enumerated  
heads of section 91. On the other hand, in giving effect to the provisions of the British North America  
Act, we must rigorously adhere to the radical distinction between these two classes of enactment:  
legislation in execution of the Dominion's legislative powers under section 91, which may, in greater  
or less degree, according to the circumstances and the nature of the power, affect the proprietary  
rights of the provinces, and even exclude them from any effective control of their property; and, in  
contradistinction, legislation conceived with the purpose of intervening in the control and disposition  
of provincial assets, in a manner, which, under the enactments of that Act touching the distribution of  
assets, revenues and liabilities, is exclusively competent to the provinces. [Emphasis added.]  
 In Seybold, the JCPC affirmed that Canada does have jurisdiction to affect provincial  
proprietary rights by reason of its s. 91(24) jurisdiction with respect to Indians in the same way  
that it can affect provincial proprietary rights by reason of its s. 91 jurisdiction over fisheries:  
Their Lordships repeat for the purposes of the present argument what was said by Lord Herschell in  
delivering the judgment of this Board in the Fisheries Case, as as to the broad distinction between  
proprietary rights and legislative jurisdiction.  
 In Sparrow the Supreme Court reaffirmed that Canada does have legislative power to  
affect provincial proprietary rights. Dickson C.J.C. and LaForest J. held [for the Court] at pp.  
1097-1098:  
The distinction to be drawn was carefully explained, in the context of federalism, in the first  
[Fisheries Case]. There, the Privy Council had to deal with the interrelationship between, on the one  
hand, provincial property, which by s. 109 of the Constitution Act, 1867 is vested in the provinces  
(and so falls to be regulated qua property exclusively by the provinces) and, on the other hand, the  
federal power to legislate respecting the fisheries thereon under s. 91(12) of that Act.  
The Supreme Court of Canada then quoted from BNA Act, 1867 the portion shown underlined in  
the quote at paragraph 1342 above.  
 In the case of the Treaty Harvesting Rights, the Plaintiffs are not submitting that the  
federal government can authorize a forestry operation without the province first granting the  
proprietary rights necessary to carry out the operation. No forestry operation can be carried out  
without a provincial authorization to do so. At the same time, if the forestry operation will  
foreseeably and significantly interfere with Treaty Harvesting Rights, a federal authorization to  
Part 13. Answer to Question One  
252  
interfere adversely with those Harvesting Rights must be obtained from the federal government  
under s. 91(24) and under the provisions of the Treaty.  
 I do not accept the submission of Ontario made in argument that in exercising its  
proprietary rights, it has powers akin to those of a fee simple owner, unconstrained by the  
division of powers. [Please see also the section of these Reasons headed "Answer to Question  
Two - Is Division of Powers Analysis Appropriate Here? Is Ontario Unconstrained by the  
Division of Powers? Are Treaty Rights Protected only by s. 35 and the Honour of the Crown?"]  
Counsel for Ontario cited Hogg, Constitutional Law of Canada, supra, at para 29.3, as follows:  
29.3 … The federal and provincial governments have full executive powers over their respective  
public properties. It is neither necessary nor accurate to invoke the royal prerogative to explain the  
Crown's power over its property. As a legal person, the Crown in right of Canada or the Crown in  
right of a province has the power to do anything that other legal persons (individuals or corporations)  
can do. Thus, unless there are legislative or constitutional restrictions [footnote 11] applicable to a  
piece of public property, it may be sold, mortgaged, leased, licensed or managed at the pleasure of the  
responsible government, and without the necessity of legislation. [Emphasis added.]  
 I note that footnote 11 to that paragraph reads as follows:  
An example of constitutional restriction would be lands reserved for the Indians, which although  
owned by the province, are subject to federal legislative power under s. 91(24).  
[Emphasis added.]  
 I also note that paragraph 29.4 of the same book, in a section on Legislative power and  
Proprietary Interests, contains the following:  
Some of the implications of the distinction between legislative power and proprietary interests are  
less obvious. The exercise of legislative power over, say, fisheries, may severely limit the owner's  
enjoyment of the property…such a law is valid notwithstanding its incidental effects on proprietary  
rights… the provincial power over property is limited by the existence of federal powers.  
[Emphasis added.]  
 I also note that Canada in exercising its s. 91 jurisdiction, frequently requires further  
authorizations for land uses, even within provinces with s. 109 powers, when they interfere or  
threaten to interfere with a federal jurisdiction. For example, Canada requires such federal  
authorizations under the Fisheries Act. Canada's jurisdiction to interfere with land use within a  
province derives from its fisheries jurisdiction under s. 91. Section 35(1) of the Fisheries Act  
provides:  
35. (1) No person shall carry on any work or undertaking that results in the harmful alteration,  
disruption or destruction of fish habitat.  
Section 35(2) of the Fisheries Act (like the provision in the Harvesting Clause allowing Canada  
to "take up" lands i.e., to allow use visibly incompatible with Harvesting Rights) allows Canada  
[Minister] to authorize such harmful disruption or destruction, which is otherwise not allowed  
absent a federal authorization:  
35.(2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of  
fish habitat by any means or under any conditions authorized by the Minister or under regulations  
made by the Governor in Council under this Act.  
Part 13. Answer to Question One  
253  
Before a user can dig trenches or undertake ordinary activities, even on her own land, which  
would adversely affect fish habitat, even if she is within a s. 109 province and has obtained a fee  
simple patent from the province, she must also obtain an authorization from Canada under the  
federal Fisheries Act.  
 A province may own the bed of a river but may not be able to dam the river if by so  
doing it will harmfully alter fish habitat unless it has first obtained a permit from the federal  
government allowing it to do so pursuant to s. 35 of the Fisheries Act. Another example  
illustrating that the right of a government or a subject to use land or a resource may depend on  
more than fee simple ownership is a fee simple owner of land in a municipality who cannot erect  
a particular type of building without complying with municipal zoning by-laws.  
 I do not accept Ontario's and Canada's submission that post-Treaty, Canada had no  
continuing s. 91(24) jurisdiction over "taking up" lands in Ontario, if in making that submission  
they were suggesting that Canada had no ongoing s. 91(24) legislative jurisdiction over Treaty  
Harvesting Rights off-reserve in Ontario.  
 In my view, in St. Catherine's Milling, Lord Watson for the JCPC did recognize that even  
though the federal government had no proprietary interest in the timber within the Disputed  
Territory, Canada, not Ontario, had power to regulate the hunting right and that Canada had  
ongoing jurisdiction over hunting and fishing:  
The fact, that it still possesses exclusive power to regulate the Indians' privilege of hunting and  
fishing, cannot confer upon the Dominion power to dispose, by issuing permits or otherwise, of that  
beneficial interest in the timber which has now passed to Ontario ...  
[Emphasis added.]  
 In my view, Smith has no application here for the reasons cited by counsel for the  
Plaintiffs mentioned earlier. Canada's reliance on Smith demonstrates the pitfalls of considering  
the effect of a surrender without having regard to the specific circumstances.  
 A valid exercise of federal jurisdiction under s. 91(24) (enforcing Treaty Rights) is not  
federal supervision. The exercise of provincial powers can be constrained by a legitimate  
exercise of federal jurisdiction. When the federal government is exercising its legitimate powers  
over Indians and lands reserved for the Indians, it is not acting in a supervisory role but acting  
pursuant to its own valid Constitutional powers. In exercising its own valid s. 91(24) jurisdiction,  
Canada cannot be said to be improperly "supervising" or meddling with provincial proprietary  
jurisdiction.  
(2) Conclusions re Section 109  
 Section 109 of the Constitution Act, 1867 protects the interests of the Indians because  
Ontario's rights thereunder are expressly qualified by interests other than interests of the province  
in the same, including Treaty Harvesting Rights.  
 St. Catherine's Milling and Seybold, both Treaty 3 cases, make it clear (just as I have  
found Morris anticipated and understood when he drafted the Treaty) that the Treaty Harvesting  
 
Part 13. Answer to Question One  
254  
Rights reserved to the Indians in Treaty 3 impose a limitation on Ontario's s. 109 jurisdiction, as  
an interest under s. 109 "other than an interest of the province in the same."  
 In St. Catherine's Milling, the JCPC mentioned that Ontario's s. 109 rights are subject to  
the qualified privilege of hunting and fishing mentioned in the Treaty. It did not decide that  
Ontario could "take up" lands in Ontario without regard to Treaty Harvesting Rights.  
 In Seybold, the JCPC also held that the extinguishment was not complete, at para. 3:  
The lands in question are comprised in the territory within the province of Ontario, which was  
surrendered by the Indians by the treaty of October 3, 1873, known as the North-West Angle Treaty.  
It was decided by this Board in the St. Catherines Milling case, that prior to that surrender the  
province of Ontario had a proprietary interest in the land, under the provisions of s. 109 of the British  
North America Act, 1867, subject to the burden of the Indian usufructuary title, and upon the  
extinguishment of that title by the surrender the province acquired the full beneficial interest in the  
land subject only to such qualified privilege of hunting and fishing as was reserved to the  
Indians in the treaty."  
[Emphasis added.]  
 In a portion of his decision where he spoke for the whole Court in Delgamuukw Chief  
Justice Lamer wrote at para. 175:  
175 The province responds by pointing to the fact that underlying title to lands held pursuant to  
Aboriginal title vested with the provincial Crown pursuant to s. 109 of the Constitution Act, 1867. In  
its submission, this right of ownership carried with it the right to grant fee simples which, by  
implication, extinguish Aboriginal title, and so by negative implication excludes Aboriginal title from  
the scope of s. 91(24). The difficulty with the province's submission is that it fails to take account of  
the language of s. 109, which states in part that:  
109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of  
Canada . . . at the Union . . . shall belong to the several Provinces . . . subject to any Trusts  
existing in respect thereof, and to any Interest other than that of the Province in the same.  
Although that provision vests underlying title in provincial Crowns, it qualifies provincial ownership  
by making it subject to the "any Interest other than that of the Province in the same". In St.  
Catherine's Milling, the Privy Council held that Aboriginal title was such an interest, and rejected the  
argument that provincial ownership operated as a limit on federal jurisdiction. The net effect of that  
decision, therefore, was to separate the ownership of lands held pursuant to Aboriginal title from  
jurisdiction over those lands. Thus, although on surrender of Aboriginal title the province would take  
absolute title, jurisdiction to accept surrenders lies with the federal government. The same can be  
said of extinguishment -- although on extinguishment of Aboriginal title, the province would take  
complete title to the land, the jurisdiction to extinguish lies with the federal government.  
[Emphasis added.]  
 A provincial government attempted to revive the argument that ownership gave it  
exclusive rights to lands that could not be limited by protection of Aboriginal rights in Haida  
Nation. The Supreme Court of Canada affirmed that Crown ownership of lands under s. 109 was  
qualified by pre-existing Aboriginal rights at paras. 58-59:  
58 The Province's argument rests on s. 109 of the Constitution Act, 1867, which provides that "[a]ll  
Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada . . . at the Union  
. . . shall belong to the several Provinces." The Province argues that this gives it exclusive right to the  
Part 13. Answer to Question One  
255  
land at issue. This right, it argues, cannot be limited by the protection for Aboriginal rights found in  
s. 35 of the Constitution Act, 1982. To do so, it argues, would "undermine the balance of federalism"  
59 The answer to this argument is that the Provinces took their interest in land subject to "any  
Interest other than that of the Province in the same" (s. 109). The duty to consult and accommodate  
here at issue is grounded in the assertion of Crown sovereignty which pre-dated the Union. It follows  
that the Province took the lands subject to this duty. It cannot therefore claim that s. 35 deprives it of  
powers it would otherwise have enjoyed…. There is therefore no foundation to the Province's  
argument on this point.  
 In his written argument, counsel for Ontario appeared to be agreeing that before the  
surrender, under s. 109, provincial rights were subject to the burden of the Indian usufructuary  
right and that upon the extinguishment of that title by surrender, the province was subject to the  
qualified privilege of hunting and fishing reserved to the Indians in the Treaty. However, it  
attempted to distinguish Delgamuukw and Haida Nation at paragraph 102 of its written closing  
argument on the basis that "…qualified harvesting rights are a very different type of legal interest  
than Aboriginal title."  
 Black's Law Dictionary, 8th ed., confirms that "usufructuary" is a property interest,  
defining it as "one having the right to usufruct; specif., a person who has the right to the benefits  
of another's property; a life-renter." "Usufruct" is defined as "A right to use and enjoy the fruits  
of another's property for a period without damaging or diminishing it, although the property right  
may naturally diminish over time." [Emphasis added.]  
 In considering the distinction between proprietary and non-proprietary rights, urged upon  
me by counsel for Ontario, I have considered the following:  
 In Sparrow, Chief Justice Dickson and LaForest J wrote at pp. 1111-1112:  
Fishing rights are not traditional property rights. They are rights held by a collective and are in  
keeping with the culture and existence of that group. Courts must be careful to avoid the application  
of traditional common law concepts of property as they develop their understanding of the "sui  
generis" nature of Aboriginal rights.  
[Emphasis added.]  
 In Sundown at para. 35:  
Aboriginal and treaty rights cannot be defined in a manner which would accord with common law  
concepts of title to land or the right to use another's land. Rather, they are the right of Aboriginal  
people in common with other Aboriginal people to participate in certain practices traditionally  
engaged in by particular Aboriginal nations in particular territories.  
[Emphasis added.]  
 The Supreme Court of Canada has, in a number of cases, held that s. 91(24) covers two  
distinct heads of powers, "Indians" and "Lands reserved for the Indians." This distinction is  
significant in understanding how there can be a continuing federal interest in Keewatin Lands  
that are not "Lands reserved for the Indians." Aboriginal and Treaty Rights other than Aboriginal  
title can fall under the subject matter of "Indians" and not "Lands reserved for the Indians." Chief  
Justice Lamer summarized this principle as follows in Delgamuukw at paragraph 138:  
The picture which emerges from Adams is that Aboriginal rights which are recognized and affirmed  
by s. 35(1) fall along a spectrum with respect to their degree of connection with the land. At the one  
Part 13. Answer to Question One  
256  
end, there are those Aboriginal rights which are practices, customs and traditions that are integral to  
the distinctive Aboriginal culture of the group claiming the right. However, the "occupation and use  
of the land" where the activity is taking place is not "sufficient to support a claim of title to the land"  
(at para.26). Nevertheless, those activities receive constitutional protection. In the middle, there  
are activities which, out of necessity, take place on land and indeed, might be intimately related to a  
particular piece of land. Although an Aboriginal group may not be able to demonstrate title to the  
land, it may nevertheless have a site-specific right to engage in a particular activity. I put the point  
this way in Adams …  
At the other end of the spectrum, there is Aboriginal title itself. As Adams makes clear, Aboriginal  
title confers more than the right to engage in site-specific activities which are aspects of the practices,  
customs and traditions of distinctive Aboriginal cultures. Site-specific rights can be made out even if  
title cannot.  
[Emphasis added.]  
and at paragraph 176:  
176 I conclude with two remarks. First, even if the point were not settled, I would have come to the  
same conclusion. The judges in the court below noted that separating federal jurisdiction over  
Indians from jurisdiction over their lands would have a most unfortunate result -- the government  
vested with primary constitutional responsibility for securing the welfare of Canada's Aboriginal  
peoples would find itself unable to safeguard one of the most central of native interests — their  
interest in their lands. Second, although the submissions of the parties and my analysis have focussed  
on the question of jurisdiction over Aboriginal title, in my opinion, the same reasoning applies to  
jurisdiction over any Aboriginal right which relates to land. As I explained earlier, Adams clearly  
establishes that Aboriginal rights may be tied to land but nevertheless fall short of title. Those  
relationships with the land, however, may be equally fundamental to Aboriginal peoples and, for the  
same reason that jurisdiction over Aboriginal title must vest with the federal government, so too must  
the power to legislate in relation to other Aboriginal rights in relation to land.  
[Emphasis added.]  
 The Ojibway concept of their ability to harvest and use the natural resources of the land is  
consistent with the Chief Justice's statement in Delgamuukw that Aboriginal peoples can have  
Harvesting Rights integral to their distinctive culture that are rights that fall within the  
jurisdiction of the federal government under s. 91(24). Here, Ojibway hunters, based on the  
evidence of Lovisek and Fobister, exercised exclusive control over their lands before the Treaty  
was signed and, at the very least, site specific activities after. Morever, their Harvesting Rights  
on their lands as in the past were reserved to them under the Treaty.  
 The Treaty Harvesting Rights here, like Aboriginal title, are based on an established pre-  
existing use of land recognized by the Treaty Commissioners. In Seybold, the JCPC held Treaty  
3 Harvesting Rights were "reserved to the Indians in the Treaty."  
 Dean La Forest noted in his book Natural Resources and Public Property under the  
Canadian Constitution at p. 120: "... it does, of course, matter to [the Indians] where they hunt  
and fish; the privilege is thus attached to land and would appear to constitute a trust or interest  
other than that of the province in the same." [Emphasis added.] At p. 179 of his book, he wrote:  
"Reasons have already been advanced in support of the view that the right to hunt and fish is an  
interest preserved by s. 109."  
Part 13. Answer to Question One  
257  
 In my view Dean LaForest's book does not support the proposition urged upon this Court  
that Ontario is entitled to exclusive use without regard to the Treaty Harvesting Rights. He wrote  
at p. 84:  
A more difficult question arises in relation to the privilege reserved … to hunt and fish on  
surrendered lands. Some statements of the Privy Council [St. Catherine's, Seybold] appear to indicate  
that this privilege may be a trust or interest in the land but Greene J. of the Ontario High Court later  
held the contrary in. Commanda at p. 178.  
[Emphasis added.]  
 He disagreed with the reasoning in Commanda.  
 While the Supreme Court of Canada has since discarded the concept of usufructuary  
rights, LaForest's reasoning at pp. 118-119 that hunting rights be interpreted as a reservation of  
part of the usufructuary rights nevertheless remains apposite:  
Some treaty provisions, however, might well be interpreted as a reservation of a part of the  
usufructuary right, rather than as a mere promise not attached to the land. Thus in the treaty  
examined in the St. Catherine's case, there is the following provision: "…the Indians are to have right  
to pursue their avocations of hunting and fishing throughout the surrendered territory, with the  
exception of those portions of it which may from time to time be required or taken up for settlement"  
… such a provision, if it is binding on the province, may curtail the freedom of action of the  
provincial legislature in connection, for example, with its game and fishing regulations. In the St.  
Catherine's case, the only references to this clause indicate that the Dominion has legislative power to  
regulate the Indians' privilege and that questions might arise respecting the right to determine to what  
extent, and at what periods, the territory over which the Indians exercise these rights is to be taken up  
for settlement. These statements appear to recognize the hunting and fishing rights as against the  
province and this seems to be the view taken of the case in Ontario Mining Co. v. Seybold, where it is  
said:  
It was decided by this Board in the St. Catherine's Milling Co.'s Case that prior to that  
surrender the province of Ontario had a proprietary interest in the land, under the provisions  
of s. 109 of the BNA Act, 1867, subject to the burden of the Indian usufructuary title, and  
upon the extinguishment of that title by the surrender the province acquired the full  
beneficial interest in the subject only to such qualified privilege of hunting and fishing as  
was reserved to the Indians in the treaty.  
From this it can certainly be argued that the right to hunt and fish is an unsurrendered portion of the  
usufructuary right of the Indians in lands reserved for them, and consequently that it is a trust or an  
interest other than that of the provinces in the such lands. It would follow that, subject to the  
exceptions in the treaty, the right would come within the exclusive jurisdiction of the federal  
authorities as relating to Indians and lands reserved for Indians. But this was not the view taken in R.  
v. Commanda.  
[Underlining emphasis added]  
 I reject the submission of counsel for Ontario that the qualified Harvesting Rights to  
which the JCPC referred in St. Catherine's Milling and Seybold were not interests other than that  
of the province in the same under s. 109.  
Conclusion re Constitutionality of the Harvesting Clause as Written  
 In summary, the mention of the Dominion of Canada in the Harvesting Clause and the  
reservation to Canada of the power to authorize interference with otherwise unlimited Harvesting  
 
Part 13. Answer to Question One  
258  
Rights under the Treaty, is Constitutional. Ontario's s. 109 rights are subject to the Harvesting  
Rights under the Treaty, an interest other than of the province in the lands and also to Canada's  
s. 91(24) jurisdiction.  
 It is necessary to consider s. 91 and s. 109 in relation to each other. An activity can have a  
proprietary aspect governed by a province and a federal aspect governed by the federal  
government.  
 I accept that under s. 91 Canada can exercise its legislative jurisdiction in relation to  
Indians and Indian lands including protecting Treaty Rights. Under the Treaty, only Canada can  
authorize "taking up" of lands for uses that will significantly interfere with Treaty Harvesting  
Rights.  
 I am of the view that the "taking up" clause was not an improper attempt to interfere with  
proprietary rights, but a valid exercise of a legitimate federal head of power.  
 In specifically referring to Canada in the Harvesting Clause, the Treaty Commissioners  
had no intention of interfering with Ontario's s. 109 proprietary powers/the granting of Crown  
instruments except to the extent it was necessary to use its s. 91(24) powers to protect the  
Harvesting Rights promised to the Ojibway under the Treaty. To the extent that the exercise of  
its federal jurisdiction over Indians and Treaty Rights would affect Ontario's proprietary rights  
under s. 109, that was Constitutionally allowable. Treaty Rights are squarely within the  
jurisdiction of the federal government under s. 91(24).  
 While I have found that Morris had no intention of attempting to appropriate Ontario's s.  
109 rights, I have also found he had no intention of expanding Ontario's rights by conferring  
rights to Ontario under the Treaty it did not already have under s. 109, thereby undermining  
Ojibway Harvesting Rights. Believing that Canada must keep its promises to the Indians, he  
drafted the Harvesting Clause with a view to protecting the Indians and in turn ensuring that  
Canada would have the power to keep its promises and its security interests would not be  
undermined.  
 The Canadian Constitutional framework does not require this Court to ignore treaty  
wording intended by Canada to protect treaty rights pursuant to s. 91(24). It does not require the  
Court to interpret words protective of treaty rights in a manner designed to defeat treaty rights.  
 Canada can deal with matters within its s. 91(24) jurisdiction, including treaty rights, both  
as a matter of Constitutional law and based on the wording of the treaty.  
Step 4: In light of Steps 1, 2 and 3 above, What is the Answer to Question One as of  
1873?  
 The answer to Question One as of 1873 was No.  
 
Part 13. Answer to Question One  
259  
Step 5: The Effect of the 1891/1894 Legislation/Agreement  
5(a) Did the 1891/1894 Legislation/Agreement ("the 1894 Agreement") Declare Ontario's  
Existing Rights Or Give Ontario Additional Rights?  
 As mentioned earlier, within weeks of the release of St. Catherine's Milling, on January  
17, 1889, Mowat wrote to Dewdney, the federal Minister of the Interior, pressing Ontario's  
proprietary rights within the Disputed Territory, and suggesting that they were not subject to  
Harvesting Rights under the Treaty. I have found on a plain reading of that letter that Mowat,  
having read the words in the Harvesting Clause, was uncertain that it would allow Ontario to  
develop lands "free of the Indian right of hunting and fishing." He understood that the Treaty  
appeared to provide that Canada's authorization would be required under the Treaty, if Ontario  
were purporting to interfere with Harvesting Rights under the Treaty. He wrote: "But whether  
that would be a legal consequence without an Order in Council or statutory enactment might be  
the subject of more or less litigation and friction."  
 I have already held that read literally, the Harvesting Clause did not allow "taking up" by  
Ontario and that the mutual intention of the parties was not to allow "taking up" by Ontario. I  
have therefore concluded the Answer to Question One in 1873 was No.  
 Even though Mowat probably had no knowledge of the facts I have reviewed about  
mutual intention of the Treaty parties or the details of the 1873 negotiations, Mowat was also a  
trained Constitutional lawyer and in his dual role of Premier and Attorney General had  
repeatedly argued for Ontario in the JCPC. He clearly understood from the plain wording of both  
the Treaty and s. 109 that a Court could determine that Ontario's s. 109 proprietary rights were  
subject to Treaty Harvesting Rights and that the wording of the Clause was Constitutional having  
regard to Canada's s. 91(24) powers and the specific wording of s. 109.  
 Vipond agreed that Mowat in his January 17, 1889 letter to Dewdney was writing about  
the question that Lord Watson had left unanswered in St. Catherine's Milling, namely, when  
Ontario makes grants of land, does the user or owner take them "free from the Indian right of  
hunting and fishing?" Vipond's cross-examination on February 26, 2010 contains the following:  
At pp. 111-112  
Q. … I'm going to suggest to you that what Mowat is writing about here is essentially the question  
that Lord Watson says is left unanswered. That is, what happens to the Indian rights when Ontario  
makes grants of land, the question being are those rights -- and if you look at Mowat's letter, I want  
you to see the words "free from the Indian right of hunting and fishing."  
A. Yes…  
…
At pp. 113-114:  
Q. And he's saying that there might be legal problems with that if there isn't either an Order-in-  
Council or legislation from the federal government ensuring that that is what actually happens,  
correct?  
A. Yes. …  
[Emphasis added.]  
   
Part 13. Answer to Question One  
260  
 Saywell agreed that in the January 17, 1889 letter, Mowat was recognizing that the  
wording of the Harvesting Clause gave rise to a legal question. Did Ontario have a right to  
authorize land use free and clear of the Indian Treaty right of hunting and fishing?  
 In his January 17, 1889 letter Mowat did mention "taking up." He did not refer to "taking  
up by Canada." However, the reference to Canada in the Harvesting Clause would not have  
escaped his notice. He would have understood that a Court could determine that before Ontario  
could authorize uses of land that purported to interfere with Treaty Harvesting Rights, Ontario  
would need the authorization of Canada.  
 Vipond agreed in cross examination that Mowat understood that as owner, Ontario could  
authorize use of lands under s. 109 apart from the Treaty. That right did not emanate from the  
Treaty. However, he also understood that a court could rule that Ontario's rights were subject to  
Ojibway Harvesting Rights under the Treaty. In addition, Mowat was aware that in St.  
Catherine's Milling, the JCPC had noted that Ontario's rights were subject to the qualified  
privilege of hunting and fishing.  
 Mowat wanted Ontario to have unfettered rights to authorize land uses within the  
Disputed Territory.  
 With his January 17, 1889 letter to Dewdney, Mowat enclosed a proposed Order in  
Council to be passed by Canada, which read as follows:  
It is hereby declared… that all the territory surrendered by the said treaty is now required for  
settlement, or mining, or lumbering purposes… any right of the Indians under the said treaty to  
pursue the avocations of hunting and fishing aforesaid shall not and do not apply to lands which are  
or which shall be the subject of such grants, licenses, sales or leases as aforesaid.  
[Emphasis added.]  
(Saywell report, Ex. 137-2, pp 37-38)  
 Had Canada agreed to Mowat's draft, the Ojibway would have lost their hunting rights in  
all of the Disputed Territory, not just on lands "taken up" by Ontario. [As eventually passed, the  
1891 Legislation did not incorporate Mowat's suggested wording but instead used the "taking  
up" wording Morris had used in the Treaty in 1873, but without the qualifier "by the Dominion."]  
 Negotiations between Canada and Ontario ensued. The Ojibway were not included, and  
were apparently unaware of them.  
 Ontario, having just won in St. Catherine's Milling in the JCPC, apparently perceived that  
it had the upper hand. It was threatening not to confirm the reserves that Canada had set up years  
earlier in fulfillment of the Treaty promise. [Unlike in the Robinson Treaties where the metes  
and bounds description excepted the lands that had already been identified by the Vidal  
Commission as reserves, Treaty 3 included all the lands but with a promise to create reserves.  
This gave Ontario the argument that the reserves had been created out of lands that had already  
passed into its ownership. Ontario was insisting that the reserves could not have been allocated to  
the Ojibway by Canada without its consent.]  
 Canada needed to be able to deliver on its promises to create reserves.  
Part 13. Answer to Question One  
261  
 The 1891 Legislation (Ex. 1, Vol. 13, tab 605 at pp. 174-175) includes the following:  
And whereas by the said treaty, out of the lands so surrendered, reserves were to be selected and laid  
aside for the benefit of the said Indians: and the said Indians were amongst other things hereinafter  
provided to have the right to pursue their avocations of hunting the fishing throughout the tract  
surrendered, subject to such regulations as might from time to time be made by the Government of  
the Dominion of Canada, and saving and excepting such tracts as might from time to time be required  
or taken up for settlement, mining, lumbering or other purposes by the said Government of the  
Dominion of Canada or by any of the subjects thereof duly authorized therefor by the said  
Government.  
And Whereas the true boundaries of Ontario have since been ascertained and declared to include part  
of the territory surrendered by the said Treaty and other territories north of the height of land with  
respect to which the Indians are understood to make a claim as being occupants thereof, according to  
their mode of occupying, and as not having yet surrendered their claim thereto or interest therein.  
And Whereas before the true boundaries had been declared as aforesaid the Government of Canada  
had set aside certain Reserves for the Indians in intended pursuance of the said treaty, and the said  
government of Ontario was no party to the selection, and has not yet concurred therein.  
And Whereas it is deemed desirable for the Dominion of Canada and the Province of Ontario to come  
to a friendly and just understanding in respect of the said matters, and the Governor General of  
Canada in Council and the Lieutenant Governor General of Canada in Council have given authority  
for the execution on their behalf respectively pursuant of the said Statutes of an Agreement in terms  
of these presents.  
Now Hereby It is Agreed between the two Governments as follows; -  
1. With respect to the tracts to be from time to time taken up for settlement, mining, lumbering or  
other purposes and to the regulations required in that behalf as in the said treaty mentioned, it is  
hereby conceded and declared that, as the Crown lands in the surrendered tract have been decided to  
belong to the Province of Ontario, or to Her Majesty in right of the said Province, the rights of  
hunting and fishing by the Indians throughout the tract surrendered, not including the reserves to be  
made thereunder, do not continue with reference to any tracts which have been, or from time to time  
may be, required or taken up for settlement, mining, lumbering or other purposes by the said  
Government of Ontario; and that the concurrence of the Province of Ontario is required in the  
selection of the said reserves [Emphasis added.]  
[Emphasis added.]  
Conclusions Re The Effect Of The 1891 Legislation  
 I have already held that Ontario as of 1873 did not have the right to "take up" lands in the  
Disputed Territory.  
 I find that Mowat understood that Ontario needed federal legislation that would have the  
legal effect of amending the Treaty to give it the right to "take up" lands in Ontario free and clear  
of Treaty Harvesting Rights without Canada's authorization.  
 The fact that Mowat ensured not only that the two governments negotiated an agreement,  
but also that Canada passed legislation to enable Ontario to "take up" lands, speaks volumes  
about Mowat's understanding.  
 
Part 13. Answer to Question One  
262  
 Ontario and Canada did not consider it sufficient to rely on a simple agreement. Canada  
passed legislation to allow Ontario to "take up" lands within Ontario without the authorization of  
Canada. Had Ontario been entitled to grant lands free of Harvesting Rights on the basis of the  
Treaty words alone, such legislation would have been unnecessary.  
 I find that to the detriment of the Ojibway, Ontario sought and obtained rights from  
Canada it did not already have under s. 109 or under Treaty 3. It successfully "bargained" with  
Canada to be able to "take up" land free of Indian hunting and fishing rights under the Treaty, by  
threatening to refuse to confirm the Treaty 3 reserves if Canada refused to pass legislation  
allowing that to happen.  
 I find that the 1891 Legislation had the effect of amending Treaty 3, not simply  
confirming Ontario's rights before it was passed.  
 But for the 1891 Legislation, Ontario would not have had the power to "take up" lands in  
the Disputed Territory in a manner visibly incompatible with Treaty Harvesting Rights without  
first receiving the authorization of Canada. The 1891 Legislation amended Treaty 3 by taking  
away Harvesting Rights the Treaty 3 Ojibway would otherwise have had.  
 Despite Canada's concession in relinquishing Harvesting Rights on lands taken up by  
Ontario in the Disputed Territory, by 1915 Ontario still had not confirmed the Reserves or  
recognized the headlands principle.  
 Whether Canada's action in acceding to Ontario's demands was justifiable is not to be  
decided here.  
5(b) Did the 1891/1894 Legislation/Agreement Apply to Keewatin After 1912?  
 It is undisputed that prior to the annexation of Keewatin to Ontario in 1912, the 1894  
Agreement did not apply in Keewatin. Prior to 1912, Ontario had neither legislative powers nor  
proprietary interest in Keewatin because it was outside of its boundaries.  
 As noted earlier, the 1891 Legislation provided as follows:  
With respect to the tracts to be, from time to time, taken up for settlement, mining, lumbering or other  
purposes and to the regulations required in that behalf, as in the said treaty mentioned, it is hereby  
conceded and declared that, as the Crown lands in the surrendered tract have been decided to belong  
to the Province of Ontario, or to Her Majesty in right of the said Province, the rights of hunting and  
fishing by the Indians throughout the tract surrendered, not including the reserves to be made  
thereunder, do not continue with reference to any tracts which have been, or from time to time may  
be, required or taken up for settlement.  
[Emphasis added.]  
 Counsel for Ontario submitted:  
468…the language employed in section 1 of the 1894 Agreement does not delineate any particular  
geographic ambit to which it applies. Instead, it refers to "Crown lands in the surrendered tract" –  
which reads as though all of the Treaty 3 lands fall within Ontario…  
 
Part 13. Answer to Question One  
263  
469 There was no need to specify an explicit territorial ambit of section 1, because Ontario's ability to  
take up and authorize the taking up of land was (and is) limited to lands within its boundaries. Put  
differently, the territorial ambit of section 1 is defined by the territorial ambit of Ontario's  
constitutional powers, including its legislative and proprietary powers over lands.  
470 When the Keewatin Lands were added to Ontario in 1912, Ontario's constitutional powers  
became applicable to these lands. Section 1 of the 1894 Agreement became applicable to the  
Keewatin Lands at that time.  
471 … the same mischief addressed by the 1894 Agreement would apply – in exactly the same way –  
to any Treaty 3 Lands subsequently added to the Province.  
[Emphasis added.]  
 In the alternative, counsel for Ontario submitted that if this Court does not conclude that  
the 1891 Legislation applies to Keewatin, based on a "purposive" reading, any resulting  
legislative lacuna should be remedied by this Court on the basis that Parliament and the Ontario  
Legislature clearly would have intended to remedy "the same mischief in the same way" had they  
turned their minds to the issue. Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed.  
(Markham: Butterworths, 2008) wrote the following at p. 183:  
Legislative silence with respect to a matter does not necessarily amount to a gap in the legislative  
scheme. A gap is a "true" gap only if the legislature's intention with respect to the matter cannot be  
established by necessary implication. An intention is necessarily implied if (1) it can be established  
using ordinary interpretation techniques and (2) the implication is essential to make sense of the  
legislation or to implement its scheme.  
 Counsel for Ontario relied upon a statement of Borden made in Parliament to the effect  
that after annexation, Ontario's powers would be the same as within its original boundaries. The  
Borden exchange was quoted by Saywell in his report (Ex. 137-2) at page 59:  
Do we understand that the title to the lands east of the boundary between Manitoba and Ontario is to  
go to the Ontario government or is it reserved to the Dominion?" asked E.M. Macdonald, a Liberal  
from Pictou. Borden answered a slightly different question:  
In extending the boundaries of the province of Manitoba the Crown reserves, as was done in  
the case of Alberta and Saskatchewan, the title to the public domain which has not passed to  
private hands. Therefore the Crown, holding title to the public domain in the district indicated  
in the order in council, proposes to make a grant of a strip five miles in width from the eastern  
boundary of the province of Manitoba to the mouth of the Nelson river. The point at which that  
strip is to begin has not been precisely defined.  
But, continued Macdonald, "I was asking in regard to the title of lands in what would be New  
Ontario; does the federal government exercise the title or is it given to the province?" To which  
Borden answered, "It passes as the other lands within the province of Ontario. It is to be administered  
by the Crown on the advice of the government of Ontario." German, a Welland Liberal pointedly  
asked, "Who will have jurisdiction over these five miles?" Borden replied that "It will be subject to  
the legislative jurisdiction of the province of Manitoba just as any other portion of land within the  
boundaries of that province." But German was not to be deflected: "Then will the hon. gentleman tell  
me who owns the land? Is it owned by Manitoba or Ontario or the Dominion government?" The  
answer, said Borden, was "It has never been owned by Manitoba, it is at present owned by the federal  
government and as soon as this grant is passed it will be owned by the Ontario government."  
 Counsel for the Plaintiffs submitted that the 1891 Legislation does not apply to the  
Keewatin Lands. Its territorial ambit is expressly limited to the Disputed Territory, the lands that  
Part 13. Answer to Question One  
264  
the JCPC in St Catherine's Milling declared to be beneficially owned by Ontario. The subject  
matter of the negotiations leading up to the 1891 Legislation was only the Disputed Territory. He  
relied in part on a letter (Ex. 1, Vol. 12, tab 585) to the Privy Council enclosing relevant  
documents in which the Superintendent General of Indian Affairs referred to the negotiations to  
"be opened between the Dominion Government and the Government of Ontario with respect to  
the rights of Indians in Reserves in that portion of territory covered by Treaty No. 3 which has  
been declared by the judgment of the Privy Council of Great Britain to be the property of the  
provincial government." (Vipond, March 1, 2010 at pp. 11-13.)  
 He submitted that the 1891 Legislation was confined to the "said matters" described in  
the preamble following from the resolution of the Boundary Dispute, applying only to the  
Disputed Territory.  
Conclusions re Applicability of the 1891 Legislation to Keewatin after 1912  
 I do not accept the submission of Ontario based on Borden's statement in Parliament  
quoted earlier. While I agree that in 1912, Canada and Ontario accepted that Ontario would have  
s. 109 powers over lands being annexed to Ontario, Borden's answer was directed to "title." The  
Plaintiffs do not dispute that title in the annexed lands passed to Ontario. While it was  
understood that Ontario would have the usual s. 109 powers in Keewatin, I do not accept that  
Canada exhibited a clear intent to have the 1891 Legislation (that had taken away Treaty Rights  
in respect of the Disputed Territory) apply in Keewatin (that was not in the Disputed Territory at  
the time the legislation was passed.)  
 I have accepted Saywell's and Vipond's evidence (Vipond, February 24, 2010 at p. 52)  
that the 1891 Legislation was designed to specifically deal with lands dealt with by St.  
Catherine's Milling.  
 I have found that the 1891 Legislation resulted from negotiations between Ontario and  
Canada in respect of "the said matters." It was intended to address the issues in the Disputed  
Territory arising out of St. Catherine's Milling. It was implicit that Canada and Ontario intended  
to limit its territorial ambit to the Disputed Territory. At the time of the 1891 Legislation, there  
were no questions to be resolved concerning Indian Lands in Keewatin.  
 As Arrow River makes clear, provincial enactments, if restricted to the area to which  
enactments are said to apply, are limited to that area.  
 I have found that but for the 1891 Legislation, Ontario would not have had the right to  
"take up" lands in the Disputed Territory without authorization from Canada. It must be borne in  
mind that Ontario is seeking an interpretation of a statute having the effect of limiting Treaty  
Rights.  
 I have rejected the submission of counsel for Ontario that the "same circumstances  
addressed by the 1894 Agreement existed when the Keewatin Lands were annexed in 1912."  
When the Agreement to annex Keewatin was reached, there were no circumstances similar to  
those existing in 1891/1894 to motivate Canada to compromise the Harvesting Rights of the  
 
Part 13. Answer to Question One  
265  
Treaty 3 Ojibway in Keewatin. There was a much different dynamic in the negotiations between  
Canada and Ontario leading up to the 1912 Legislation than there had been in the period  
immediately after Canada had lost the St. Catherine's Milling case. In the former, Ontario had  
the upper hand. Canada wanted to get the reserves confirmed. In 1912, Ontario had no right to  
annex the Keewatin Lands. Ontario was the supplicant, seeking to extend its territory and to  
secure access to a port on Hudson's Bay.  
 The 1891 Legislation was clearly intended to respond to St. Catherine's Milling, which  
did not affect Keewatin, while the 1912 Legislation was motivated by reasons totally unrelated to  
Canada's obligations to the Ojibway or Ontario's s. 109 rights.  
 The extension lands were lands to which Ontario had no claim. Ex. 1, Vol. 16, tabs 737  
and 742 are letters, the first dated March 16, 1909 to Sir Wilfrid Laurier from Whitney, the  
Premier of Ontario, and the second from Whitney to Laurier dated November 11, 1909, which  
contain the following:  
Tab 737:  
We are quite aware of the appositeness of the old and more or less trite saying that 'One should not  
look a gift horse in the mouth.' But, subject to that, and desiring to speak with the utmost good feeling  
and temper, my Colleagues and I desire to bring to your notice our very great disappointment that  
your Government has not allotted to us at least the territory east of the Nelson River.  
and  
Tab 742:  
We quite appreciate that the Province has no legal right or claim in the matter whatever, and  
therefore, strictly and technically speaking, we cannot complain of or object to what might under  
other circumstances be termed an injustice.  
 I find that in 1912, Ontario recognized it should not look a gift horse in the mouth. In  
1912, it was in no position to bargain for rights additional to s.109 re "taking up." Ontario took  
its rights in Keewatin as they were, without negotiating for additional rights in respect of "taking  
up" as it had done in the Disputed Territory.  
 I have not accepted Chartrand's evidence that the One Man Lake Reserve in Keewatin  
was established under the process created in the 1891 Legislation, but have accepted the  
evidence of Vipond that Chartrand was mistaken and that the One Man Lake Reserve was  
established under a different ad hoc process that did not reflect the process outlined in the 1891  
Legislation.  
 Having considered the evidence of Saywell and Vipond, I have concluded that there is no  
evidence, let alone plain and clear evidence, that Canada intended the 1891 Legislation or 1894  
Agreement to apply to the Keewatin Lands at the time it was passed or in 1912.  
 In interpreting principles applicable to questions dealing with Indian interests, generally  
speaking, the interpretation that impairs the Indian interests as little as possible is to be preferred  
(Osoyoos).  
Part 13. Answer to Question One  
266  
 Sullivan's "Construction of Statutes" (5th ed., supra) contains the following at p. 515:  
"The liberal interpretation principle applies…to any issues relative to the treaty as a source of  
rights."  
 Special considerations apply when interpreting statutes potentially affecting Aboriginal  
rights:  
It is presumed that a legislature does not intend to narrow, extinguish or otherwise interfere with  
Aboriginal rights. [Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed.  
(Markham, ON: Butterworths, 2002) at p. 412.]  
 LaForest J. wrote in Mitchell at p. 143: "If legislation bears on treaty promises, the Courts  
will always strain against adopting an interpretation that has the effect of negating commitments  
undertaken by the Crown."  
 The Supreme Court of Canada has made it clear that any intention to extinguish  
Aboriginal title must be "clear and plain" (Sparrow, Bear Island). Dickson C.J.C. and LaForest J.  
applied this to non-title Aboriginal rights in Sparrow. In addition, in interpreting all legislation  
relating to Aboriginals (such as that in 1894 and 1912), "doubtful expressions [should be]  
resolved in favour of the Indians," to adopt the words of Dickson J. (as he then was) at p. 36 of  
Nowegijick. The Honour of the Crown requires the Crown to fulfill its promises.  
 The 1891-1894 Legislation/Agreement did not expressly amend the Treaty provision re  
"taking up" except in respect of the Disputed Territory. In 1912, the 1891 Legislation was not  
amended to make it apply to an expanded area. The 1891-1894 Legislation/Agreement was not  
specifically mentioned in the 1912 Legislation. Neither the 1891 nor the 1912 Legislation  
mentions the Keewatin Lands. It is not necessary to infer their inclusion to give the legislation  
meaning.  
 I have accepted the evidence of Saywell and Vipond that before the 1912 Legislation was  
passed, after reviewing Hansard and all other relevant documents relating to the 1912  
annexation, neither of them found any discussion about extinguishing or altering Treaty 3 rights  
or any evidence that Canada/Parliament considered or agreed to alter, extinguish or in any way  
amend the terms of Treaty 3. To the contrary, Canada appears to have been concerned to ensure  
that Indian rights in the territory would be respected and protected and that federal jurisdiction in  
respect of Indians and their Lands would continue. The 1912 Legislation made it clear that  
Canada expected to continue its trusteeship role in connection with Indians (a position that runs  
counter to viewing 1891 Legislation removing Treaty Rights formerly inapplicable to Keewatin,  
as applicable after 1912.) It inserted conditions in the legislation to that end.  
 I accept the submission of counsel for the Plaintiffs that the 1912 Legislation did not  
make it clear that in Keewatin, Ojibway Harvesting Rights throughout the tract were being  
abridged or extinguished with respect to tracts taken up by Ontario. There was no clear and plain  
intention by the federal government to remove or extinguish Harvesting Rights in Keewatin at  
the time it was annexed to Ontario in 1912.  
Part 13. Answer to Question One  
267  
Step 6: The Devolution Argument  
 Counsel for Canada (not Ontario) made much of the 1912 Legislation, submitting that it  
conferred rights and imposed obligations on Ontario and absolved Canada from any further  
s. 91(24) obligations in Keewatin relating to "taking up" of land in Keewatin. He submitted that  
all of Canada's obligations devolved to Ontario under the 1912 Legislation. In effect, counsel for  
Canada submitted that in 1912, Ontario agreed to accept all responsibilities for Indians in  
Keewatin and Canada agreed to relinquish all jurisdiction over Indians in Keewatin.  
 In both its oral and written submissions, counsel for Canada submitted that upon the  
transfer of the beneficial interest, by operation of law, Canada's rights and obligations, both  
Constitutionally and pursuant to Treaty, devolved to that local government, in this case, Ontario.  
(See Secretary of State at 132.) Under s. 2(a) of the Boundary Extension Act, Ontario was to act  
as Canada had "heretofore" in dealing with the "rights of the Indian inhabitants" of the District of  
Keewatin. "Rights" included Treaty Rights. Canada submitted that under s. 2(a), Ontario took the  
place of Canada in dealing with First Nations' rights. The content of those rights did not change.  
They submitted it is also a fundamental principle that a treaty promise given by the Crown in one  
of its aspects cannot be read so as to prevent the Crown "from transferring or altering  
sovereignty, or as binding the [Crown] to carry out obligations when it no longer has the power  
to do so." Manuel at 828. See also Maritime Bank. When the Keewatin lands became part of  
Ontario, s. 109 of the Constitution Act, 1867 applied. Pursuant to legislative authority and by  
operation of law, immediately upon transfer Ontario gained title to the lands "unencumbered by  
any operation of s. 91(24)." Smith at pages 562, 564 and 569.  
 Where the Constitution mandates that something must or can be done only by Ontario,  
the Treaty must be adjusted by substituting "Ontario" for "Canada" to accord with the  
Constitutional imperative.  
 Counsel for Canada submitted that upon receipt of the benefits of the transferred lands,  
Ontario became "burdened with the obligation imposed by the Treaty" to honour the right of the  
Indians to hunt and fish over lands now within Ontario's exclusive jurisdiction. To so find would  
"permit the Treaty to survive." At the moment the Keewatin Lands became part of Ontario,  
s. 109 of the Constitution Act, 1867 applied, confirming that Ontario gained title to the lands  
"unencumbered by any operation of s. 91(24)," but "burdened with the obligation imposed by the  
Treaty" to honour the right of the Indians to hunt and fish over lands now within Ontario's  
exclusive jurisdiction. Smith at pages 562, 564 and 569; Seybold at 81, cited with approval in  
Smith at 564-65.  
 Counsel for Canada relied on the following evidence of Fobister from November 25,  
2009:  
Q. And so at the time when you were chief, when there was -- when you had concerns about logging,  
within the Treaty 3 area, would you speak to somebody from the provincial government about that  
concern?  
A. Initially, I did talk to someone within the provincial government. When they didn't listen, then I  
went to what the treaty had to offer us prior that Indian Affairs would take care of us. And I did go  
there. And he didn't -- and at that time, I don't know if I should mention the name, but anyway, Indian  
 
Part 13. Answer to Question One  
268  
Affairs did not protect us, did not respond to us when the logging that we were dissatisfied with  
happened. They claimed that it was not their jurisdiction.  
…
Q. So is it fair to say that if you had gone to the representative of the provincial government and they  
had satisfied your concerns, you wouldn't have had any reason to go to Indian Affairs about that  
issue?  
A. Yes.  
 Counsel for the Plaintiffs disagreed with Canada's submission that Canada's obligations  
devolved to Ontario in 1912. He submitted the transfer in 1912 was very different from a transfer  
that would have had that effect. Ontario was not gaining self-government in 1912. Canada was  
not relinquishing its sovereignty. The annexed lands were still part of Canada.  
 Counsel for the Plaintiffs submitted that the doctrine of devolution only applies when  
law-making powers and obligations are transferred from one government to another, not when  
assets are transferred within an existing federal framework. Devolution applies, for instance,  
when a colony has gained independence. In 1912, Ontario did not gain independence from  
Canada. There was no establishment of a new legislature, no new grant of a legislative power, or  
removal of the Keewatin Lands from Canada. When Canada transferred the Keewatin Lands to  
Ontario, it did so within Canada. The Constitutional division of powers and Canada's obligations  
to the Ojibway under them [s. 91(24)] were unaffected. The federal s. 91(24) jurisdiction over  
Indians, including Treaty Rights, did not change. Canada's obligations under the Treaty were  
unaffected.  
 Canada's argument has some practical difficulties that were immediately apparent. For  
example, Canada has continued to pay Treaty 3 annuities and to provide other services to the  
Ojibway in Keewatin since 1912.  
 Canada submitted that Ontario would not have accepted Keewatin knowing that Canada  
would "supervise" Ontario's exercise of its s. 109 jurisdiction. However, Vipond, the expert  
called by Canada to assert that Ontario would not have accepted "supervision," conceded in  
cross-examination that even strong provincial autonomists such as Mowat clearly understood and  
accepted that if Canada were exercising a legitimate s. 91 jurisdiction, that would not constitute  
unacceptable "supervision."  
 Ontario accepted responsibilities and obligations on the annexation more onerous than  
agreeing to s. 91(24) authorizations by Canada whenever Ontario was purporting to significantly  
interfere with Harvesting Rights. For example, Ontario agreed to pay Treaty 9 annuities.  
 I do not accept Canada's contention that Ontario would not have accepted annexation if it  
knew it would be required to obtain authorization from Canada for "taking up" of lands in  
Keewatin.  
Conclusions on the Devolution Argument  
 In my view, the jurisdictional analysis to be applied here involves consideration of the  
division of powers. Saywell and Vipond conceded the 1912 Legislation expressly alludes to  
 
Part 13. Answer to Question One  
269  
continuation of the federal s. 91(24) trusteeship/protective jurisdiction role in the territory being  
annexed. It was well understood by 1912 that even though the federal government had no  
proprietary rights, it could exercise its s. 91(24) jurisdiction to protect Indians and by so doing,  
adversely affect a province's proprietary rights.  
 Keewatin was annexed to Ontario in 1912 using the process mandated by the  
Constitution Act, 1871. Section 3 provided as follows:  
The Parliament of Canada may from time to time, with the consent of the Legislature of any Province  
of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon such  
terms and conditions as may be agreed upon to by the said Legislature, and may, with the like  
consent, make provision respecting the effect and operation of any such increase or diminution or  
alteration of territory in relation to any Province affected thereby.  
 In the lead-up to the passage of the 1912 Legislation, I find (based on Newcombe's  
opinion) that Canada believed it could not alter the division of powers. It believed it could  
impose conditions of transfer on Ontario, requiring it to expressly recognize and uphold Ojibway  
Treaty Rights, including Harvesting Rights. Ontario accepted the conditions imposed by Canada  
because it was in no position to demand otherwise. Canada had no legal obligation to transfer  
Keewatin to it. In 1912, Ontario stood to benefit from the annexation of Keewatin, as it would be  
able to derive revenues therefrom. Ontario wanted access to a port on Hudson's Bay.  
 It is not necessary to accept Canada's devolution argument to "permit the Treaty to  
survive." After 1912, Canada had, and in 2011 still has, the power to fulfill its Treaty obligations  
under s. 91(24) of the Constitution Act, 1867. Moreover, s. 2 of the 1912 Extension Legislation  
expressly and specifically provided that the trusteeship of Indians in the Territory would remain  
the responsibility of Canada. In the lead up to annexation, Canada appears to have taken positive  
steps to ensure that Indian rights in the territory would be respected and that federal jurisdiction  
in respect of Indians and lands reserved for the Indians would continue. It imposed conditions in  
the legislation on their face designed to affirm existing Treaty Rights, not modify them.  
 The wording, particularly of s. 2(c) of the Act, reinforces my conclusion that Parliament  
intended to affirm the continuity of federal jurisdiction over Indians and Indian lands, consistent  
with Newcombe's opinion. The phrase "the trusteeship of the Indians in the territory shall remain  
in the Government of Canada subject to control of Parliament" recognizes the continued  
responsibility of Parliament for the welfare and guardianship of the Indians under s. 91(24)  
(Vipond, February 25, 2010 at pp 116, 132-133; Saywell, April 7, 2010 at pp. 205-212.)  
 I accept Saywell's evidence that "trusteeship of the Indians" was intended to be a political  
shorthand for the general wardship/guardianship responsibility of the federal government to  
manage the affairs of the Indians. I find that the 1912 Legislation contemplated that Canada, not  
Ontario, would continue to fulfill the trusteeship role.  
 I have accepted the submission of counsel for the Plaintiffs and the evidence of Vipond  
and Saywell that in Keewatin, the principle that the federal government has a role to act as  
protector guardian of the Indians and their interests is reinforced by the Constitutional provisions  
Part 13. Answer to Question One  
270  
of the Rupert's Land and Northwest Territory Order and the provisions of the Constitution Act,  
1871.  
 Canada's s. 91(24) jurisdiction over Indians including Treaty Rights did not devolve to  
Ontario in 1912 upon the transfer of the Keewatin lands to Ontario. None of the bases for  
devolution arose or existed in 1912. Fobister's attempt to get assistance from Ontario does not  
prove Canada's assertion. He also sought redress through Canada, as he clearly understood  
Indian Affairs to have a continuing responsibility.  
Step 7: The Answer to Question One  
 In Keewatin, Ontario does not have the right to limit Treaty Rights by "taking up lands  
under the Treaty." It can issue land authorizations under s. 109 apart from the Treaty, but only in  
compliance with s. 109, i.e., only so long as the authorizations do not have the effect of  
substantially interfering with Treaty Harvesting Rights. To authorize uses that significantly  
interfere with Treaty Harvesting Rights under the Treaty, Ontario, or users of land already  
authorized by Ontario to use the land, must also obtain the authorization of Canada.  
 I do not accept Ontario's submission that a "No" answer to Question One represents "a  
massive incursion" on Ontario's proprietary rights and is contrary to the mutual intentions of the  
parties and the Constitutional reality. Rather, it is a "Yes" answer that would not accord with the  
mutual intention of the parties or with the Constitutional reality. Such an interpretation would not  
best reconcile the interests of the parties at the time the Treaty was made. Under s. 109, Ontario's  
rights are expressly subject to "any interest other than that of the province in the same," including  
Treaty Harvesting Rights. Had I ignored the clear reference in the Treaty to authorization of  
"taking up" by Canada, I am of the view that that would have been to allow an unwarranted  
incursion on Ojibway Harvesting Rights by Ontario.  
 The Commissioners deliberately provided in the Harvesting Clause that in the event  
Ontario won the Boundary Dispute or a new province with s. 109 powers were formed under s. 3  
of the 1871 Constitution Act, authorization of "taking up" by Canada would be needed in  
addition to Ontario's or that new province's authorization under s. 109. In that event, the  
Commissioners did contemplate and intend that a two-step authorization process would need to  
be followed.  
 Although Canada bargained away its control over Ojibway Harvesting Rights on lands  
"taken up" by Ontario in the Disputed Territory and passed legislation amending the Treaty in  
that respect, Treaty Harvesting Rights outside the Disputed Territory (e.g., in Keewatin) were not  
affected.  
 The circumstances surrounding the negotiation for the annexation of Keewatin differed  
considerably from those surrounding the negotiations of the 1891 Legislation. During the  
negotiations for the 1912 Legislation, there was no mention of altering Treaty 3 rights. Canada  
was aware that part of the Treaty 3 lands was being annexed to Ontario. No legislation was  
passed amending Treaty 3 Harvesting Rights in Keewatin; on the contrary, the 1912 Agreement  
 
Part 13. Answer to Question One  
271  
specifically mentioned the continuing trusteeship obligations of the federal government to the  
First Nations in the area.  
 There is no plain and clear proof that Canada intended to alter Treaty 3 Harvesting Rights  
in 1912.  
 In short, the Treaty promises made to the Ojibway in 1873 remain unaffected by the 1891  
Legislation and/or by the 1912 Legislation annexing Keewatin to Ontario.  
 I have rejected Canada's devolution argument. The answer to Question One is No.  
The Mikisew Factor  
 Counsel for Canada asserted at this trial with seeming confidence that we were in essence  
wasting our time because the issues needing to be decided here have already been conclusively  
determined in Mikisew.  
 Similarly, counsel for Ontario submitted that when Lord Watson mentioned "questions  
left behind" in St. Catherine's Milling, he was contemplating the same issues already addressed  
by the Supreme Court in Mikisew. Since the Supreme Court concluded in Mikisew that the party  
"taking up" lands must allow the Aboriginal rightsholders to retain a meaningful ability to  
exercise their off-reserve Harvesting Rights (determined on a community-by-community, not  
treaty-wide, basis), that standard must be applied here.  
 In essence, counsel for both governments submitted that the substantive promise in  
Treaty 3, as in Mikisew, was simply that sufficient lands would remain available post-Treaty to  
allow for the meaningful pursuit of the Treaty Harvesting Rights.  
 Counsel for both governments, assuming Canada owes no fiduciary duty to the Ojibway  
but only the same Honour of the Crown duties as it was held to owe to the Cree in Mikisew, and  
assuming the duty owed by Ontario and Canada is the same, submitted there would be no  
advantage to the Ojibway were Canada rather than Ontario to be doing the "taking up" of lands.  
They submitted that the Supreme Court of Canada in Mikisew has already settled that Canada  
does not owe the Ojibway a fiduciary duty. Since Canada owes no such duty, it does not matter  
that in other circumstances, Canada might be required to fulfill more onerous duties to Indians  
than Ontario.  
 Counsel for Canada submitted that with the exclusive property rights of the province  
firmly established in law, Mikisew and Haida Nation already provide the necessary roadmap for  
understanding the relationship between Ontario's exclusive right to "take up" Crown lands within  
its borders and the Plaintiffs' Treaty 3 rights to hunt, fish and gather over Crown lands not yet  
"taken up."  
 Counsel for Canada submitted that Mikisew stands for the following propositions at  
paras. 3, 24, 30, 33 and 51:  
 
Part 13. Answer to Question One  
272  
The Crown's right to "take up" lands under the Treaty is an inherent limitation on  
treaty hunting, fishing and trapping rights.  
Wording such as is found in Treaty 3 contemplates that "from time to time"  
portions of the surrendered land would be "taken up" and transferred from the  
inventory of lands over which the First Nations have Treaty Rights to hunt, fish and  
trap, and placed in the inventory of lands where they do not.  
Treaty Harvesting Rights are expressly limited to lands not "required or taken up  
from time to time for settlement, mining, lumbering, trading or other purposes."  
Such language cannot be clearer in foreshadowing change. Nevertheless, the Crown  
is expected to manage the change honourably.  
In this context, the Honour of the Crown gives rise to a "duty of consultation" in  
advance of any "taking up" of lands that may interfere with Treaty Rights. This  
"principle of consultation . . . goes to the heart of the relationship" between  
Aboriginal and non-Aboriginal peoples.  
 For both governments to have assumed that the Mikisew standard will be applied here,  
without rigorously comparing the wording of the clauses at issue, the details of the negotiations  
of this Treaty and the specific promises made to these Ojibway, was in my view virtually  
tantamount to begging the real question to be decided here – what is the correct legal  
interpretation of this particular Clause, having regard to all of the circumstances in this case?  
 Treaty Rights are substantive rights that are now Constitutionally protected. Courts must  
carefully determine their scope and context based upon a careful consideration of the specific  
circumstances in which the particular treaty was made. One size does not fit all. As one of the  
witnesses said, history can be messy.  
 To properly determine the legal standard to be applied, it was and is necessary to  
carefully examine the particular circumstances here in context and to consider the mindset,  
interests and unique perspectives of each Treaty partner. What promises were made, both in  
respect of the content of the Harvesting Rights and in respect of their continuing enforcement?  
What did these parties intend and understand at the time this Treaty was made? The legal  
obligations that are owed will depend on the specific wording and circumstances, the mutual  
understanding of these parties at the time this Treaty was made and the interpretation that best  
reconciles their interests.  
 Given the two specific questions posed in this case relating to Ontario's rights and  
obligations, counsel agreed that it is not necessary for this Court to specifically determine  
Canada's obligations to the Ojibway under the Harvesting Clause. However, Canada's and  
Ontario's assertion that Canada could not owe a fiduciary duty to the Ojibway here because none  
was found in Mikisew, and that Ontario's duties could not be held to be higher than Canada's,  
required me to consider these issues. The characterization of Canada's duty as fiduciary or  
otherwise and the definition and delineation of the extent of its obligations to the Plaintiffs in  
respect of these Treaty Rights are not directly before me here. I shall not comment further except  
to say only the obvious: that the existence of a fiduciary duty is dependent on a number of  
circumstances defining the nature of the relationship. Any future determination of Canada's  
Part 13. Answer to Question One  
273  
obligations, fiduciary or otherwise, to the Ojibway under the Treaty in connection with the  
Harvesting promise, will be determined having regard to the exact nature of the relationship  
created with the Ojibway in 1873 and may be affected in part by Canada's specific promises  
here, the nature and extent of Canada's discretion and the Ojibway vulnerability with respect to  
this Harvesting promise.  
 Suffice it to say that for the purpose of considering Ontario's argument, based as it was on  
the conclusion in Mikisew that Canada did not owe a fiduciary duty to the Cree in Treaty 8, I  
cannot conclude with certainty that Canada could not be found to owe a fiduciary duty to the  
Treaty 3 Ojibway in respect of the Harvesting Clause in all the circumstances here.  
 Given the specific promises found to have been made and the deliberate inclusion of a  
specifically worded process clause mentioning Canada, the legal characterization of the duty that  
a Court might find Canada to owe to them could be different from the duty it was found to owe  
under Treaty 8.  
 I shall outline some of the differences between the Treaty 8/Mikisew and the Treaty 3  
facts as I have found them in order to highlight why the conclusions in Mikisew may not  
necessarily be held to apply here.  
a) The clause under consideration in Mikisew was worded differently from the  
Harvesting Clause here. Treaty 8 contains no protective process clause.  
b) In Mikisew, there was no need for the Court to consider whether the lands had  
been validly "taken up" (i.e., whether the specific process for "taking up"  
prescribed in the treaty had been followed, i.e., by a party other than Canada that  
needed to be authorized by Canada.)  
c) The two treaties were negotiated under very different circumstances. Treaty 8 was  
not negotiated by Morris. The Treaty 8 Cree had very different perspectives and  
interests from the Treaty 3 Ojibway.  
d) Binnie J. generalized in Mikisew at paragraph 24 that the post-Confederation  
numbered treaties were designed to open up the Canadian West to settlement and  
development. He noted that that stated purpose was reflected in the limitations on  
hunting, fishing and trapping rights contained in Treaty 8. He noted at paragraph  
53 that the evidence led at the Mikisew trial supported a finding that in the year  
Treaty 8 was negotiated, 1899, the Cree understood that after the treaty was  
signed, when land was put to a use that was visibly incompatible with the exercise  
of their right to hunt, they would no longer be able to hunt on that land. In other  
words, there was a factual finding that the Aboriginal signatories of Treaty 8  
understood, intended and accepted that the geographical limits of their hunting  
areas would shrink as lands were "taken up"/transferred from the inventory of  
lands over which they had treaty rights to hunt, fish and trap, to the inventory of  
lands where they did not have those rights. I have found that in Treaty 3, the  
Ojibway and the Commissioners had a much different intent and understanding.  
Canada's primary interest in negotiating Treaty 3 was not opening the Treaty 3  
Part 13. Answer to Question One  
274  
area to settlement and development. The Ojibway did not agree to a progressive  
limitation of the geographical area where they could hunt.  
e) In Mikisew there was no factual finding that the Treaty 8 Aboriginal signatories  
had been induced to enter into the treaty by specific promises about the perpetual  
continuation of their subsistence Harvesting Rights as in the past over the whole  
territory. There was no finding that the Cree did not understand that Canada could  
unilaterally interfere with their rights.  
f) On the facts as found in Mikisew, the Aboriginal signatories in effect agreed  
during the negotiations to what Plaintiffs' counsel in this case referred to as  
"extinguishment of their Harvesting Rights by slices." They were found to have  
understood and accepted that after they signed the treaty, they would be  
unilaterally deprived of their hunting rights as lands were developed. On the facts  
as found, Treaty 8 was held to have imposed a geographical limitation on the  
harvesting area, "consistent with the oral promises made at the time the treaty was  
signed, the oral history of the Treaty 8 Indians, earlier case law and the provisions  
of the Alberta Wildlife Act." Put differently, in Mikisew the Aboriginal signatories  
to Treaty 8 understood and accepted that after they signed it, there could be  
significant interferences with their harvesting rights and that their traditional  
harvesting rights would be increasingly displaced as "taking up" increased. There  
was a very different factual finding here.  
g) Even in the absence of a protective process clause and in the face of an  
understanding and agreement that their traditional harvesting rights could be  
increasingly limited as development progressed, the Supreme Court of Canada  
held in Mikisew that it was necessary to ensure that the substantive promise that  
was made in Treaty 8 would be kept (i.e., that the Cree would have a continuing  
right to hunt on the lands ceded: so much land would not be taken up that there  
would be no meaningful right to hunt on the remaining land.) Given the findings  
made with respect to the mutual understanding of the parties and the absence of a  
process clause that must be followed, the Court held that so long as they still had  
a meaningful right to pursue their traditional harvesting, there would be no  
substantive breach of the treaty. Even in those very different circumstances, the  
Court held there was a duty to consult, possibly to accommodate and certainly to  
avoid breaching the substantive treaty term by ensuring that the Aboriginal  
signatories had a meaningful right to hunt within their traditional territories. In the  
case of Treaty 3, I have held the parties did not intend that Ojibway Harvesting  
Rights would receive substantive protection only when they were on the verge of  
becoming meaningless.  
h) In the particular circumstances of Treaty 3, I have found that to get the Treaty  
done, the Commissioners did make promises to the Treaty 3 Ojibway that went  
beyond those found by the Court to have been made to the Cree signatories in  
Mikisew. The Commissioners did not require the Ojibway to agree, as a term of  
the Treaty, that their harvesting areas would decrease over time.  
i) While the Mikisew Cree agreed to geographical displacement of hunting rights,  
the Treaty 3 Ojibway did not.  
Part 13. Answer to Question One  
j) Binnie J. found at paragraph 25 of Mikisew that there was anticipation of an  
275  
"uneasy tension between the First Nations' essential demand that they continue to  
be as free to live off the land after the treaty as before and the Crown's expectation  
of increasing numbers of non-Aboriginal people moving into the surrendered  
territory" in the Treaty 8 area. I have found that in the Treaty 3 area, there was no  
such "uneasy tension." The parties did not see from the beginning that their  
ongoing relationship would be difficult to manage. Apart from the right of way  
area they mutually anticipated little permanent settlement in the Treaty 3 area.  
Canada understood that if it won the Boundary Dispute, the relationship would be  
relatively easy to manage since cooperation among the federal departments  
involved was expected. If Ontario won the Boundary Dispute and a conflict in  
uses developed, Morris had provided that Canada would be able to manage the  
situation by refusing to authorize proposed uses that crossed the line.  
 In Mikisew, the Supreme Court of Canada highlighted the difference between substantive  
treaty rights that cannot be infringed except upon satisfying the Sparrow test, and procedural  
rights that apply under the Honour of the Crown, even before the point of substantive breach of  
the treaty has been reached. It made it clear that the Honour of the Crown requires consideration  
of the content of the substantive promise, in effect recognition of the overall promise,  
consultation and monitoring in anticipation of possible breach and, in some circumstances,  
accommodation to ensure that the line between possible and substantive breach will not be  
crossed. The Court held that once the geographic scope had been so narrowed that the hunting  
right was about to become meaningless, any further authorizations of land uses would need to  
meet the s. 35 Sparrow test. The Sparrow analysis would apply to the federal Crown as soon as  
the line of substantive infringement was crossed. In their submissions about Mikisew, counsel for  
the governments did not draw a clear distinction between the duties of governments where there  
has not yet been a substantive infringement and where a substantive breach has already occurred.  
 The Plaintiffs submitted that even the evidence of Chartrand in cross-examination  
supports a conclusion that it was not when the Harvesting Right was reduced to meaningless that  
the Treaty Harvesting Clause would be breached and Sparrow would apply, but when non-  
Aboriginal activities would start to intrude to a degree that they would give rise to serious  
concerns/when they could not accommodate the non Aboriginal activities.  
 Counsel for the Plaintiffs in argument referred to Chartrand's cross-examination on the  
point about meaninglessness versus serious effect:  
Q: And that line, I'm going to suggest to you, is not crossed at the point where there's no fishing of  
any sort whatsoever available, it's crossed well before then, isn't it? And if you want me to break this  
down --  
A: Yeah. I mean, certainly the warning and the concern appears long before then.  
…
Q"And what I'm going to suggest to you is that the concern and complaint would have been triggered  
at a lower level than that. And this is an example where we see that, where we see sturgeon depletion,  
and not extinction at this point, but just depletion and the threat of future extinction, triggering a  
complaint.  
Part 13. Answer to Question One  
276  
A: …The Ojibway would have voiced concerns when … they perceived a development that… if  
uncontrolled, would very significantly and harshly impede their ability to make a living.  
…
Q: But once those activities, I suggest to you, started to unreasonably interfere with the Ojibway way  
of life, you could expect to hear complaints from the Ojibway about that?  
A: I would phrase that in the way that I've just explained, that if given, at a certain point in time, the  
Ojibway have a number of strategies that are at hand that, taken as a whole, allow to them make a  
living according to reaching a given level of subsistence. If the Ojibway had perceived, at that point  
in time, that Euro-Canadian activities [in] the land [and] the waters…  
…MR. JANES: (Continuing reading from Chartrand's report):  
…were reaching a point where they … could not accommodate those activities by either  
further diversifications, if no alternatives were available, then they would have raised  
concerns.  
[Emphasis added.]  
 Counsel for Ontario submitted that Ontario can interfere with where the Ojibway hunted,  
how they hunted, and when they hunted, because they knew when they were signing this Treaty  
that that was what they were facing, and they accepted it. Their only expectation was that their  
right to hunt would not become meaningless.  
 For all the reasons already detailed, I have rejected that submission. The Commissioners  
promised the Ojibway that their Harvesting Rights would continue as in the past.  
 At this stage this Court is not determining whether Ontario has breached the Harvesting  
Rights Clause. That determination is to be made during the next stage of this litigation having  
regard to the circumstances here, not the very different circumstances pertaining in Mikisew.  
14. ANSWER TO QUESTION TWO  
 Question Two is as follows:  
If the answer to question/issue 1 is "no," does Ontario have the authority pursuant to the division of  
powers between Parliament and the legislatures under the Constitution Act, 1867 to justifiably  
infringe the rights of the Plaintiffs to hunt and fish as provided for in Treaty 3? [provided that the  
question of whether or not the particular statutes and statutory instruments at issue in this action in  
fact justifiably infringe the Treaty Rights shall not be determined and shall be reserved for the trial of  
the rest of this proceeding.]  
 Phrased differently, if the answer to Question One is No, can Ontario nevertheless  
authorize forestry operations that would infringe the Plaintiffs' Treaty Harvesting Rights so long  
as it can meet the Sparrow justification requirements?  
 In resolving Question Two, this Court is only to consider the legal question related to the  
division of powers, not to apply the justifiable infringement test to the facts. Spies J. directed as  
follows:  
This Court orders, for greater certainty that threshold issue 2 does not extend to the question of  
whether or not the particular provincial statutes and statutory instruments relevant to this action in  
fact justifiably infringe the treaty right of the plaintiffs so as to validly authorize the relevant forestry  
operations of the defendant Abitibi-Consolidated Inc.  
 The following factual findings are relevant to the resolution of Question Two:  
 
Part 14. The Answer to Question Two  
277  
a)  
I have accepted Chartrand's evidence on January 21, 2010 at pp. 55-6 that hunting  
was and is central to the Indianness of the Treaty 3 Ojibway. To simply focus on  
the physical aspects of the activity would be a mistake. To understand the  
significance of hunting to the Ojibway, a holistic approach must be taken.  
b)  
c)  
I have also accepted Fobister's evidence summarized earlier in these Reasons about  
the importance of traditional harvesting to his people.  
In my view, the evidence in this case amply supports the conclusion that the Treaty  
3 Ojibway were and are vitally concerned about being able to continue and  
maintain the traditional harvesting activities I have found were promised to them  
during the Treaty 3 negotiations. Traditional harvesting was and is closely linked  
with their identity and fundamentally important to them culturally, economically  
and spiritually. Traditional harvesting was and is tied to their understanding and  
perception of themselves and their society. Indeed, before 1873 and ever since, the  
right to harvest has been central to the identity and economy of the Treaty 3  
Ojibway.  
Analysis  
 I have answered Question Two by dealing with the issues raised during argument in the  
following sequence:  
1
2
3
Is a division of powers analysis appropriate here? Can Ontario act as any other fee  
simple landowner without regard to the division of powers?  
If a division of powers analysis applies, is the matter (here traditional Harvesting  
Rights under the Treaty) at the core of the federal s. 91(24) power?  
Will the proposed provincial action/legislation have an adverse impact on that  
core? Does inter-jurisdictional immunity apply to indirect interference?  
Does s. 88 of the Indian Act apply?  
4
5
What is the answer to Question Two?  
Issues Raised in Argument  
1. Is a Division of Powers analysis appropriate here?  
 Generally, counsel for Ontario submitted that the answer to Question Two is Yes, Ontario  
can justifiably infringe Treaty 3 Harvesting Rights. The issue is the scope of Ontario's  
Constitutional capacity, if it cannot "take up" lands under the Treaty but can authorize the use of  
lands under s. 109.  
 Counsel for Ontario submitted this Court should not be concerned about allowing Ontario  
to infringe Treaty 3 Harvesting Rights because Ontario recognizes it is bound to honour the  
Treaty under the Honour of the Crown and s. 35 of the Constitution Act, 1982.  
     
Part 14. The Answer to Question Two  
278  
 Counsel for Ontario submitted that when the Constitution was repatriated in 1982, s. 35  
gave both procedural and substantive Constitutional protection to the Plaintiffs' Treaty  
Harvesting Rights. It protected off-reserve Treaty Harvesting Rights from unjustifiable  
infringement by the Province by imposing duties on Ontario: (a) to consult and accommodate  
when authorizing land uses (Mikisew at para. 3; Haida Nation at para. 59) and; (b) to justify any  
infringements of Treaty 3 Harvesting Rights.  
 Section 35 ushered in a new era of reconciliation in Crown-Aboriginal relations. Van der  
Peet contains the following at para. 31  
More specifically, what s. 35(1) does is provide the constitutional framework through which the fact  
that Aboriginals lived on the land in distinctive societies, with their own practices, traditions and  
cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights  
which fall within the provision must be defined in light of this purpose; the Aboriginal rights  
recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence  
of Aboriginal societies with the sovereignty of the Crown.  
 The Supreme Court of Canada in Mikisew has set out a test for justification of prima facie  
breaches of s. 35 rights "perfectly tailored to ensure appropriate protection of all interests." This  
Court should apply the Mikisew test. It should look to s. 35. These serve to properly restrain  
Ontario's activities in this context and require it to consult and accommodate the Ojibway when  
authorizing land uses or dispositions that would result in "taking up" of lands. Where necessary,  
they would require Ontario to justify any infringements of Treaty 3 Harvesting Rights that would  
result.  
 Ontario submitted that one of the central goals of the division of powers analysis is to  
preserve an appropriate balance between federal and provincial powers:  
Canadian Western at paras. 24 and 36  
As the final arbiters of the division of powers, the courts have developed certain constitutional  
doctrines, which, like the interpretations of the powers to which they apply, are based on the guiding  
principles of our constitutional order. The constitutional doctrines permit an appropriate balance to  
be struck in the recognition and management of the inevitable overlaps in rules made at the two levels  
of legislative power, while recognizing the need to preserve sufficient predictability in the operation  
of the division of powers.  
OPSEU at 17  
The history of Canadian Constitutional law has been to allow for a fair amount of interplay and  
indeed overlap between federal and provincial powers.  
 Balanced, cooperative federalism can, in the submission of Ontario, best be achieved if  
Ontario has a "meaningful capacity to exercise its s. 109 ownership." In the interest of balanced  
federalism, "Ontario must be given sufficient scope to 'fulfill its Constitutional obligations' in  
relation to lands, to involve itself in discussions with the Ojibway, to resolve conflicts between  
provincial proprietary rights and traditional Harvesting rights under the Treaty." Counsel for  
Ontario submitted in written argument:  
22(b) Balanced, co-operative federalism supports provincial capacity to justify infringements of the  
plaintiffs' treaty harvesting rights. Further shielding behind the division of powers doctrine of inter-  
jurisdictional immunity would serve no meaningful or useful purpose.  
Part 14. The Answer to Question Two  
279  
 Counsel for Ontario submitted that because Her Majesty the Queen in Right of Ontario  
holds the beneficial ownership in all non-reserve lands ceded under Treaty 3, Ontario can  
exercise its proprietary right to authorize uses and dispositions of lands within Ontario as it sees  
fit like any other fee simple owner, unconstrained by the division of legislative powers under the  
Constitution. …  
22(c) ii. In authorizing forestry activities on Crown lands off-reserve, Ontario is exercising its  
proprietary powers under s. 109 of the Constitution Act, 1867. The exercise of proprietary power is  
not limited by inter-jurisdictional immunity, only by s. 35 of the Constitution Act, 1982 (and, where  
applicable, the doctrine of federal paramountcy – which is not engaged here);  
 The doctrine of inter-jurisdictional immunity is "too blunt an instrument" to  
accommodate the conflicting interests of Ontario, Canada and the First Nations because it  
"hampers the legitimate interplay between federal and provincial powers, creates serious  
uncertainty as to the delineation of the core of a head of power, risks creating legal vacuums, and  
is generally superfluous." Its application should be restricted to narrow areas critical to giving  
effect to a limited number of federal heads of power.  
 That doctrine does not apply to Ontario in its exercise of its proprietary jurisdiction.  
Ontario qua landowner is free to act in a manner that would otherwise be ultra vires.  
 He cited cited Hogg, Constitutional Law of Canada, supra, at para. 29.2, as follows:  
29.2 … the provincial Legislature may legislate terms as to the use or sale of provincial property  
which it could not legislate in other contexts, for example, a stipulation that timber be processed in  
Canada [footnote: Smylie v. The Queen (1900), 27 O.A.R. 172 (C.A.)], or that no Chinese or Japanese  
labour be employed in cutting timber [footnote: Attorney-General for British Columbia and the  
Minister of Lands v. Brooks-Bidlake and Whitall, Ltd. (1922), 63 S.C.R. 466]. This broad legislative  
power to dispose of a province's own property is consistent with the broad executive power enjoyed  
by the province as proprietor.  
 He also cited the portions of the same text that I have already quoted in the sections of  
these Reasons dealing with the credibility of the experts and with the Constitutionality of the  
Harvesting Clause.  
 Counsel for Ontario submitted that the doctrine of inter-jurisdictional immunity cannot  
apply where Ontario is not relying on its legislative authority under the Constitution, but  
exercising its proprietary rights like any other property owner. Its exercise of provincial  
proprietary jurisdiction is unrelated to the division of powers. Section 109 is regulated by the  
Honour of the Crown [duty to consult and accommodate] and s. 35 [any significant limitation on  
the right must be justified] and not by s. 91(24).  
 The fact that Ontario can also exercise its proprietary rights by way of legislation enacted  
under s. 92(5) does not mean that Ontario is limited by competing federal heads of legislative  
authority under the division of powers. Section 92(5) should not be viewed as an independent  
source of provincial jurisdiction.  
Part 14. The Answer to Question Two  
280  
 Counsel for Ontario submitted that the doctrine of inter-jurisdictional immunity does not  
apply to the exercise of provincial proprietary jurisdiction because that doctrine exists in order to  
maintain an appropriate balance between valid exercises of federal and provincial legislative  
authority under ss. 91 and 92. Inter-jurisdictional immunity has nothing to do with the exercise  
of property rights.  
 In the section of these Reasons headed "Answer to Question One – Step 3," I have  
already mentioned the reference by counsel for Ontario to LaForest on Natural Resources and  
Public Property under the Canadian Constitution. supra, in which the author referred to the right  
of provinces to deal with their property pursuant to the executive powers at pp. 164 and 167 as  
follows:  
Provincial legislative power over its property carries with it the power of administration and control  
by the provincial executive. This means that a provincial government may, without legislation,  
exercise in respect of its property the same rights as a private owner, and consequently attach such  
restrictions as it deems fit when it makes grants by lease or licence. …  
 Counsel for Ontario referred to St. Catherine's Milling as an illustration of the "extremely  
narrow scope of federal power relative to provincial jurisdiction under s. 109."  
 He cited Brooks-Bidlake and Smylie as authority for the proposition that provincial  
proprietary power is not constrained by federal legislative power. Brooks-Bidlake at p. 457.  
Sect. 91 reserves to the Dominion Parliament the general right to legislate as to the rights and  
disabilities of aliens and naturalized persons; but the Dominion is not empowered by that section to  
regulate the management of the public property of the Province, or to determine whether a grantee or  
licensee of that property shall or shall not be permitted to employ persons of a particular race. These  
functions are assigned by s. 92, head 5, and s. 109 of the Act to the Legislature of the Province; and  
there is nothing in s. 91 which conflicts with that view.  
[Emphasis added.]  
 Counsel for Ontario submitted the Plaintiffs are seeking to use the doctrine of inter-  
jurisdictional immunity to give the federal government a "supervisory" role over Ontario's  
exercise of proprietary and related legislative jurisdiction in the Keewatin Lands.  
 Counsel for the Plaintiffs submitted that the answer to Question Two is No. In effect,  
because Treaty Rights are also protected under the Honour of the Crown and s. 35, Ontario is  
asking this Court to ignore the protection afforded Treaty Rights under the division of powers.  
 Counsel for the Plaintiffs reiterated that while Ontario can act in its own proprietary  
interest under s. 109 without the federal s. 91(24) interest engaging, it can only continue to do so  
as long as by so acting it does not significantly interfere with federal interests at the core of s.  
91(24), including Treaty Harvesting Rights. Ontario can patent land and issue licenses only up to  
the point of significant interference.  
 Section 35 has not overtaken and replaced the division of powers in the circumstances  
here. The Supreme Court of Canada in Morris has specifically rejected the submission now  
being made by Ontario, holding that the protection provided by s. 91(24)/the doctrine of inter-  
jurisdictional immunity was not withdrawn when s. 35 was passed. The Supreme Court has held  
Part 14. The Answer to Question Two  
281  
that the doctrine of inter-jurisdictional immunity continues to apply to protect treaty rights and to  
render inoperative an otherwise valid provincial law (the Wildlife Act) to the extent of the  
impairment. In that case, the Court did not hold that s. 92(13) was merely confirmatory of the  
province's jurisdiction to legislate in relation to its proprietary jurisdiction. Deschamps and  
Abella JJ. for the majority wrote at paras. 42-43:  
42 In this case, there is no question that the relevant provisions of the Wildlife Act are valid provincial  
legislation under s. 92(13) of the Constitution Act, 1867, which refers to Property and Civil Rights in  
the Province. However, where a valid provincial law impairs "an integral part of primary federal  
jurisdiction over Indians and Lands reserved for the Indians" (Four B Manufacturing Ltd. v. United  
Garment Workers of America, [1980] 1 S.C.R. 1031, at p. 1047), it will be inapplicable to the extent  
of the impairment. Thus, provincial laws of general application are precluded from impairing  
"Indianness". (See, for example, Dick v. The Queen, [1985] 2 S.C.R. 309, at p. 326.)  
43 Treaty rights to hunt lie squarely within federal jurisdiction over "Indians, and Lands reserved for  
the Indians". As noted by Dickson C.J. in Simon, at p. 411:  
It has been held to be within the exclusive power of Parliament under s. 91(24) of the  
Constitution Act, 1867, to derogate from rights recognized in a treaty agreement made with the  
Indians.  
This Court has previously found that provincial laws of general application that interfere with treaty  
rights to hunt are inapplicable to particular Aboriginal peoples. (See, for example, Simon, at pp. 410-  
11; Sundown, at para. 47.) Where such laws are inapplicable because they impair "Indianness",  
however, they may nonetheless be found to be applicable by incorporation under s. 88 of the Indian  
Act.  
[Emphasis added.]  
 In Morris, McLachlin C.J.C. and Fish J., while disagreeing with the majority about  
whether hunting after dark is always unsafe and as such is treaty protected, agreed with the  
majority that the doctrine of inter-jurisdictional immunity applies to protect core federal  
legislative competence from inference by governments as follows:  
90. Under the doctrine of inter-jurisdictional immunity, valid provincial legislation is constitutionally  
inapplicable to the extent that it intrudes or touches upon core federal legislative competence over a  
particular matter. Thus, exclusive federal jurisdiction under s. 91(24) protects "core Indianness" from  
provincial intrusion: Delgamuukw, at para. 177. Valid provincial legislation which does not touch on  
"core Indianness" applies ex proprio vigore. If a law does go to "core Indianness" the impugned  
provincial legislation will not apply unless it is incorporated into federal law by s. 88 of the Indian  
Act.  
91. Indian treaty rights and Aboriginal rights have been held to fall within the protected core of  
federal jurisdiction: Simon at p. 411; Delgamuukw, at para. 178. It follows that provincial laws of  
general application do not apply ex proprio vigore to the hunting activities of Indians that are  
protected by a treaty.  
[Emphasis added.]  
 The law is settled that provincial laws of general application cannot impair treaty rights at  
the core of Canada's s. 91(24) jurisdiction.  
 While most of the relevant cases have involved provincial regulation of treaty rights,  
counsel for the Plaintiffs submitted that in Saanichton Marina, the British Columbia Court of  
Appeal enjoined the construction of a marina that was adversely affecting fish habitat and treaty  
Part 14. The Answer to Question Two  
282  
fishing by the Tsawout people under the Douglas Treaty. See also White; Bartleman; Simon;  
Sundown.  
 Counsel for the Plaintiffs distinguished the cases relied on by counsel for Ontario in their  
attempt to support their contention that Ontario can exercise its proprietary rights without regard  
to the division of powers. He submitted that Smylie, decided before Canadian Western and  
Morris, did not involve provincial rights that conflicted with a core federal jurisdiction. Inter-  
jurisdictional immunity does not apply to the federal trade and commerce power as it is not a  
person, place or thing. Indians are federal persons. Treaty Harvesting Rights are at the core of  
the federal s. 91(24) jurisdiction over Indians. In Smylie, provincial powers under s. 109 were not  
limited by an interest other than that of the province in the same. There was no such pre-existing  
interest. The licensee in Smylie had no prior right to sell timber across the border. Unlike in  
Smylie, Treaty Harvesting Rights here are protected as an interest other than that of the province  
in the same.  
 Counsel for the Plaintiffs submitted that the reasoning in Brooks Bidlake has been  
overtaken, as it was decided before Canadian Western. Were Brooks Bidlake to be decided  
today, an inter-jurisdictional immunity analysis would be required. On the facts in Brooks  
Bidlake, a Court using the Canadian Western analysis would probably conclude that the  
limitation involving Japanese and Chinese workers was not at the core of the federal citizenship  
jurisdiction/power under s. 91(25) (see page 457) and for that reason, the doctrine of inter-  
jurisdictional immunity would not apply. [Unlike the case at bar, where the limitation on  
Harvesting Rights involving Indians is at the core and inter-jurisdictional immunity would be  
found to apply.] Had the legislation in Brooks Bidlake contained a general prohibition directed at  
keeping Chinese persons out of the province, inter-jurisdictional immunity would apply. See  
Union Colliery at p. 587. At the same time, post-1982, the limitation in Brooks Bidlake involving  
Japanese and Chinese workers would be held to be unconstitutional.  
 In Northwest Falling, the Court allowed federal interference with provincial proprietary  
interests where provincial jurisdiction could have adverse effects on federal heads of power.  
 In a number of cases, the Supreme Court of Canada has held that s. 91(24) covers two  
distinct heads of powers: "Indians" and "Lands reserved for the Indians." While most important  
in the context of Aboriginal title cases, this distinction is significant here in understanding the  
continuing federal interest in lands in Keewatin that are not "Lands reserved for the Indians."  
Treaty Rights other than Aboriginal title fall under the subject matter of "Indians." Indians can  
have treaty rights tied to lands that may not amount to Aboriginal title/rights to the exclusive  
possession of the lands. [I have already cited the reasoning of Lamer C.J.C. on this point in  
Delgamuukw at paragraph 176.]  
(2) Are Traditional Harvesting Rights Under the Treaty at the Core of the Federal s. 91(24)  
Power?  
 Counsel for Ontario submitted the doctrine of inter-jurisdictional immunity is restricted  
in its application to narrow residual areas that are critical to give effect to a limited number of  
 
Part 14. The Answer to Question Two  
283  
federal heads of power. Care must be taken to distinguish between the scope and the core of the  
s. 91(24) jurisdiction over Indians. With respect to scope, the federal government can legislate  
on any subject matter in relation to Indians (subject to the Constitutional justification protection  
granted by s. 35). Section 91(24) re: "Indians" covers subject matters relating to Aboriginal  
identity and activities, often characterized as "Indianness" (or regulating Indians qua Indians, or  
Indians in their Indianness.) The core of Indianness under s. 91(24) is narrower, related to central  
elements of Indian identity.  
 While counsel for Ontario conceded that the core of the Indians' branch of s. 91(24)  
protects some aspects of Treaty Rights, including Treaty Harvesting Rights, from provincial  
impairment, he submitted that not all aspects of Treaty Harvesting Rights necessarily come  
within the core. The majority in Morris, for example, left open the question of provincial  
Constitutional capacity to interfere with commercial Treaty Harvesting Rights. Questions of  
public safety and resource conservation also leave scope for provincial laws. Geographic  
restrictions on where Treaty Harvesting Rights can be exercised at any given point in time,  
resulting from the effect of provincial proprietary and related legislative jurisdiction, do not  
impair the core of s. 91(24). Even though Ontario cannot access the "taking up" clause in the  
Treaty, the substantive bargain of the Treaty was that lands could be developed and Treaty  
Rights could be geographically restricted.  
 Counsel for the Plaintiffs submitted that while jurisdictional overlap will generally not  
result in a provincial law being found to be ineffective, in certain circumstances, including when  
the doctrine of inter-jurisdictional immunity applies, it will. The Supreme Court of Canada has  
made it clear that with regard to "Indians and Lands reserved for the Indians," there is an  
unassailable core of federal jurisdiction immune from impairment by the operation of provincial  
laws, even if those laws are of general application.  
 Counsel for the Plaintiffs submitted that the substantive bargain was not as alleged by  
Ontario. In making the submission that the core was not affected and that the substantive bargain  
was that lands could be developed by the generic government, including Ontario, and that Treaty  
Rights could be geographically limited once that happened, Ontario is effectively urging this  
Court to ignore the mutual intention of the parties, the deliberate insertion of the process clause  
by the Commissioners to protect Treaty Rights and the plain and ordinary meaning of the  
Harvesting Clause.  
(3) Does Inter-jurisdictional Immunity apply to Indirect Interferences?  
 While conceding that the regulation of Treaty Harvesting Rights is within the exclusive  
jurisdiction of the federal government (subject to very narrow exceptions for safety and  
conservation), counsel for Ontario submitted that in passing the Crown Forests Sustainability  
Act, Ontario was not directly regulating, nor proposing to directly regulate, Treaty Harvesting  
Rights.  
 Licensing of Crown lands for forestry purposes would only remotely and indirectly affect  
Treaty Harvesting Rights by limiting where those Rights can be exercised at a given point in  
 
Part 14. The Answer to Question Two  
284  
time. Because the impact of the provincial legislation here is indirect, it will not impair the core  
of the federal s. 91(24) power as it relates to Treaty Harvesting Rights, so long as the Mikisew  
test is met, i.e. a meaningful ability to exercise those rights remains. The effect is more remote  
than the indirect effect involved in Irwin Toy, where the provincial advertising restriction at issue  
was nevertheless found not to impair federal broadcasting undertakings. At p. 958:  
Do the provisions nevertheless have the effect of impairing the operation of a federal undertaking?  
The interveners adduced evidence showing the importance of advertising revenues in the operation of  
a television broadcast undertaking and that the prohibition of commercial advertising directed to  
persons under thirteen years of age affected the capacity to provide children's programs. This is not a  
sufficient basis on which to conclude that the effect of the provisions was to impair the operation of  
the undertaking, in the sense that the undertaking was "sterilized in all its functions and activities."  
[test now changed]The most that can be said, as in Kellogg's (at p. 225), is that the provisions "may,  
incidentally, affect the revenue of one or more television stations." Nor can it be said that the  
provisions have the potential to impair the operation of a broadcast undertaking.  
(See also Canadian Western Bank at para. 49.)  
 Counsel for Ontario acknowledged that this Court is bound by Morris, but submitted that  
that case is distinguishable. Morris did not raise the issue of provincial capacity to limit Treaty  
Harvesting Rights by authorizing the "taking up" of lands. It did not consider the extent to which  
such exercises of provincial jurisdiction would be consistent with the internal geographical  
limitations on the Harvesting Rights contained in those treaties.  
 Counsel for the Plaintiffs submitted that the Supreme Court rejected any distinction  
between direct and indirect effects/interference in Canadian Western at para. 49, holding that the  
same test applies to both. He disagreed with Ontario's submission that Irwin Toy supports the  
proposition that inter-jurisdictional immunity does not apply to indirect effects of provincial  
legislation/regulation, submitting that in Irwin Toy, the Court did not refuse to apply the doctrine  
of inter-jurisdictional immunity because the effect of the provincial legislation/regulation was  
indirect. Rather, it refused to apply the doctrine on the ground that there was not enough  
evidence to conclude that there had been an impairment.  
 Counsel for the Plaintiffs submitted that in making this argument, Ontario was in essence  
submitting that an indirect effect does not constitute an impairment/does not significantly  
interfere with Harvesting Rights. Spies J. has already held that impacts, including effects of the  
particular statutes and statutory instruments on the Treaty Rights of the Plaintiffs, are not to be  
determined during this stage of the litigation. The argument about indirect versus direct effects is  
thus not open to Ontario during this stage.  
 During the next stage of the trial, Ontario will be at liberty to submit that its activity does  
not constitute an impairment or significantly interfere with Harvesting Rights on the ground and  
that the effect of its activity is only indirect.  
Part 14. The Answer to Question Two  
285  
Conclusions  
1. Is Division of Powers Analysis Appropriate Here? Is Ontario Unconstrained by the  
Division of Powers? Are Treaty Rights Protected only by s. 35 and the Honour of the  
Crown?  
 I have earlier given reasons for rejecting the submissions of Ontario that St. Catherine's  
Milling stands for the proposition that after a valid surrender, Canada has no further s. 91(24)  
jurisdiction and also for rejecting Canada's submission that Smith stands for the same  
proposition.  
 In St. Catherine's Milling, Canada asserted a proprietary interest in the land, based upon  
the theory that the Treaty 3 surrender had conveyed legal title from the Treaty 3 Ojibway to the  
federal government. The JCPC rejected Canada's arguments and held that Ontario, not Canada,  
had proprietary rights in lands in Ontario under s. 109. At issue were ownership rights, not  
Harvesting Rights.  
 In my view, a solid evidentiary basis exists in this case upon which I have concluded that  
Canada's founding fathers, centralists and provincial autonomists alike, and later Morris in 1873,  
understood Canada could act under s. 91(24) to protect the Harvesting Rights of its wards "the  
Indians," and that in so doing Canada could adversely affect provincial proprietary rights and  
that s. 109 rights could be limited by Treaty Harvesting Rights reserved to the Indians under the  
Treaty by Canada exercising its s. 91(24) powers.  
 I have already opined that the JCPC did not conclude in either St. Catherine's Milling or  
Seybold that the title was free and clear of any Indian interest, but that it was free and clear of  
any interest except the harvesting interest mentioned in the Treaty. Canada's s. 91(24) interest  
was continuing. I have noted that at the end of the judgment in St. Catherine's Milling, Lord  
Watson specifically reserved judgment with respect to "questions that may be behind the right to  
determine to what extent, and at what periods, the disputed territory, over which the Indians still  
exercise their avocations of hunting and fishing, is to be taken up for settlement or other  
purposes …" [Emphasis added.]  
 Counsel for Ontario submitted that when exercising its proprietary rights and not subject  
to the division of powers, Ontario has powers akin to those of a fee simple owner. He cited  
Hogg, Constitutional Law of Canada, supra, at para 29.3, as follows:  
29.3 … The federal and provincial governments have full executive powers over their respective  
public properties. It is neither necessary nor accurate to invoke the royal prerogative to explain the  
Crown's power over its property. As a legal person, the Crown in right of Canada or the Crown in  
right of a province has the power to do anything that other legal persons (individuals or corporations)  
can do. Thus, unless there are legislative or constitutional restrictions [footnote 11] applicable to a  
piece of public property, it may be sold, mortgaged, leased, licensed or managed at the pleasure of the  
responsible government, and without the necessity of legislation.  
[Emphasis added.]  
 I have already noted the content of footnote 11, as follows:  
   
Part 14. The Answer to Question Two  
286  
An example of constitutional restriction would be lands reserved for the Indians, which although  
owned by the province, are subject to federal legislative power under s. 91(24).  
 I have also noted that paragraph 29.4 of the same book on Legislative power and  
Proprietary Interests, contains the following:  
Some of the implications of the distinction between legislative power and proprietary interests are  
less obvious. The exercise of legislative power over, say, fisheries, may severely limit the owner's  
enjoyment of the property…such a law is valid notwithstanding its incidental effects on proprietary  
rights… the provincial power over property is limited by the existence of federal powers.  
[Emphasis added.]  
 I have rejected the submission of Ontario that Treaty Harvesting Rights cannot adversely  
affect provincial proprietary rights.  
 I am of the view that had Brooks Bidlake been decided today, the Court would likely  
have scrutinized the provision involving Japanese and Chinese workers, and used an inter-  
jurisdictional immunity analysis and would have found that the doctrine did not apply because it  
was not at the core of the citizenship power.  
 Were Morgan being decided today, the Court would likely use an inter-jurisdictional  
immunity analysis. It would consider whether the provincial law limiting ownership of certain  
types of property in P.E.I. goes to the core of the federal citizenship power.  
 In my view the Smylie case is not helpful to this Court in deciding the issues here.  
Because it involved the federal trade and commerce power and not a federal "person, place or  
thing" power, the doctrine of inter-jurisdictional immunity would not apply. Under s. 109, the  
licensee had no prior right to sell timber across the border, and therefore there was "no interest  
other than the interest of the province in the same," such as the Treaty Harvesting Rights here.  
 I note that LaForest wrote at p. 170: "In Smylie, Brooks Bidlake and Fisheries, we saw  
that provincial legislation respecting its property may incidentally affect matters falling within s.  
91 of the British North America Act. But such legislation … cannot invade the federal sphere."  
[Emphasis added.]  
 I do not accept the submissions of counsel for Ontario that Ontario is free to exercise its  
proprietary rights like any other landowner.  
 At p. 179, LaForest wrote: "Reasons have already been advanced in support of the view  
that the right to hunt and fish is an interest preserved by s. 109."  
 I have not accepted Ontario's submission that Ontario is not subject to Treaty Rights  
under s. 109. Pre-existing rights protected under s. 109 have always included Treaty Harvesting  
Rights. Ontario is now ignoring that Harvesting Rights are an interest "other than that of the  
province in the same" pursuant to s. 109.  
 In St. Catherine's Milling at p. 52, the JCPC did not conclude that Ontario's s. 109 rights  
were free of Harvesting Rights.  
Part 14. The Answer to Question Two  
287  
 In Seybold, Lord Davey for the JCPC affirmed that the surrender did not leave the federal  
government without any s. 91(24) jurisdiction, at p. 79:  
… prior to the surrender Ontario had a proprietary interest in the land, under the provisions of s. 109  
of the British North America Act, 1867, subject to the burden of the Indian usufructuary title, and  
upon extinguishment of that title by the surrender the province acquired the full beneficial interest in  
the land subject only to such qualified privilege of hunting and fishing as was reserved to the  
Indians in the treaty.  
[Emphasis added.]  
 Ontario's argument virtually ignored Morris and the statements of the Supreme Court of  
Canada in Sparrow, Delgamuukw and Haida Nation among others concerning limitations on the  
scope of s. 109 powers, quoted earlier in these Reasons supporting the view that Ontario took its  
proprietary interest subject to Treaty Rights. Its proprietary rights are subject to pre-existing  
Harvesting Rights, an interest other than that of the province in the same.  
 I have already mentioned the reasons of Lamer C.J.C. in Delgamuukw at paragraph 175  
and the reasoning of the Court in Haida Nation at paragraphs 58 and 59.  
 I do not accept Ontario's submission that when exercising its proprietary rights, Ontario is  
not subject to the division of powers. In Morris the Supreme Court of Canada held that s. 109  
rights are subject not only to s. 35 rights, but are also constrained by the exercise of federal  
power under s. 91. Treaty Rights are protected by s. 91(24) as well as by s. 35 and the Honour of  
the Crown. Section 35 supplements Treaty Rights already otherwise protected under s. 109. It  
does not adversely affect them. In Morris, the Supreme Court of Canada did not hold that s.  
92(13) of the Constitution Act merely confirms the provinces' jurisdiction to legislate in relation  
to their proprietary jurisdiction.  
 I do not accept Ontario's submission that treaty protection should be limited to s. 35 and  
the Honour of the Crown. As Lamer C.J.C. in Delgamuukw held at paras. 176-178, "to separate  
jurisdiction over Indians from jurisdiction over their lands" and from the jurisdiction over "other  
Aboriginal rights in relation to land" would create an injustice.  
 The Supreme Court of Canada made it clear in Delgamuukw that s. 35 and the Honour of  
the Crown are not the only limitations on s. 109 proprietary rights. The doctrine of inter-  
jurisdictional immunity/division of powers can limit s. 109 powers as well.  
 I do not accept the submissions of Ontario that Ontario can use its proprietary jurisdiction  
to partially extinguish Treaty Rights. Only Canada could extinguish Treaty Rights before 1982  
and only Canada could justifiably infringe Treaty Rights post-1982.  
 I note that in Delgamuukw, where an NDP government in British Columbia had  
withdrawn a general extinguishment argument but was continuing to advance a partial  
extinguishment argument similar to the one being made by Ontario here (i.e., that using its  
proprietary powers, British Columbia could make fee simple grants and thereby extinguish  
Aboriginal title piece by piece.) Lamer C.J.C., after rejecting that contention at paragraph 175,  
added at paragraph 176:  
Part 14. The Answer to Question Two  
288  
176 I conclude with two remarks. First, even if the point were not settled, I would have come to the  
same conclusion. The judges in the court below noted that separating federal jurisdiction over Indians  
from jurisdiction over their lands would have a most unfortunate result -- the government vested with  
primary constitutional responsibility for securing the welfare of Canada's Aboriginal peoples would  
find itself unable to safeguard one of the most central of native interests — their interest in their  
lands. Second, although the submissions of the parties and my analysis have focussed on the question  
of jurisdiction over Aboriginal title, in my opinion, the same reasoning applies to jurisdiction over  
any Aboriginal right which relates to land. As I explained earlier, Adams clearly establishes that  
Aboriginal rights may be tied to land but nevertheless fall short of title. Those relationships with the  
land, however, may be equally fundamental to Aboriginal peoples and, for the same reason that  
jurisdiction over Aboriginal title must vest with the federal government, so too must the power to  
legislate in relation to other Aboriginal rights in relation to land.  
[Emphasis added.]  
Delgamuukw at para. 176; Adams at para, 30; Cote at para. 39.  
 In short, Ontario is constrained by the division of powers. Ontario is not free to exercise  
its proprietary rights without regard to the division of powers. Canada, using its s. 91(24)  
jurisdiction, can make treaty promises that may affect Ontario's proprietary interests, including  
promising Treaty Harvesting Rights.  
2. If Ontario is Constrained by the Division of Powers, Does Inter-Jurisdictional Immunity  
Apply?  
 Delgamuukw made it clear, among other things, that if not allowed to do so under the  
Treaty itself, Ontario cannot extinguish Treaty Rights at the core of federal jurisdiction. Lamer  
C.J.C. noted at paras. 177 that "s. 91(24) protects a 'core' of Indianness from provincial intrusion,  
through the doctrine of inter-jurisdictional immunity" and at para. 178 that "the core of  
Indianness encompasses the … practices, customs and traditions which [may or may not be] tied  
to land…Provincial governments are prevented from legislating in relation to both types of  
Aboriginal rights."  
 I accept the submission of counsel for the Plaintiffs that inter-jurisdictional immunity  
applies here.  
 While the Supreme Court of Canada has recently limited the applicability of the doctrine  
of inter-jurisdictional immunity in Canadian Western because of the fundamental federal  
responsibility for a thing or person (here Indians), the Court specifically reaffirmed that inter-  
jurisdictional immunity continues to apply, in the case of s. 91(24), to protect the core of  
Indianness. Binnie and LeBel JJ. wrote:  
61 In some cases ... the Court has found a vital or essential federal interest to justify federal  
exclusivity because of the special position of Aboriginal peoples in Canadian society or, as Gonthier  
J. put it in the National Battlefields Commission case mentioned earlier, "the fundamental federal  
responsibility for a thing or person" (p. 853). Thus, in Natural Parents, Laskin C.J. held the  
provincial Adoption Act to be inapplicable to Indian children on a reserve because to compel the  
surrender of Indian children to non-Indian parents "would be to touch 'Indianness', to strike at a  
relationship integral to a matter outside of provincial competence" (pp. 760-61). Similarly, in  
Derrickson, the Court held that the provisions of the British Columbia Family Relations Act dealing  
with the division of family property were not applicable to lands reserved for Indians because "[t]he  
right to possession of lands on an Indian reserve is manifestly of the very essence of the federal  
 
Part 14. The Answer to Question Two  
289  
exclusive legislative power under s. 91(24) of the Constitution Act, 1867" (p. 296). In Paul v. Paul,  
[1986] 1 S.C.R. 306, our Court held that provincial family law could not govern disposition of the  
matrimonial home on a reserve. In these cases, what was at issue was relationships within Indian  
families and reserve communities, matters that could be considered absolutely indispensable and  
essential to their cultural survival. [Emphasis added.]  
 I note that Mr. Penner, counsel for Canada, in argument on April 30, 2010 submitted that  
part of the protective component of s. 91(24) (as confirmed by Canadian Western) is inter-  
jurisdictional immunity and that during argument on May 3, 2010, counsel for Ontario conceded  
that generally speaking, Treaty Harvesting Rights do relate to Indianness and that Treaty hunting  
and fishing rights are at the core of the s. 91(24) jurisdiction.  
 On the facts here, I have concluded that Treaty Harvesting Rights are at the core of the  
federal s. 91(24) jurisdiction. For the purposes of this litigation, the Plaintiffs are not claiming  
that they have ongoing Aboriginal title. [However, it seems clear that before the Treaty, the  
Ojibway had Aboriginal title to all of the Treaty 3 lands. Before the Treaty was signed, the  
Treaty 3 Ojibway exercised exclusive control over the Treaty 3 territory and exercised their  
Harvesting Rights. As I found on the facts, as LaForest noted in his book and the JCPC noted in  
St. Catherine's and Seybold, Harvesting Rights were reserved to the Ojibway under the Treaty.]  
 Only the federal government, pursuant to its jurisdiction over Indians and consistent with  
the Chief Justice's description of Harvesting Rights in Delgamuukw, has power over Treaty  
Harvesting Rights. Treaty Harvesting Rights are Constitutionally protected. They burden the use  
of the land under s. 109. In this case, based on my conclusions about the importance of  
Harvesting Rights to the Treaty 3 Ojibway, I am strongly of the view that their traditional  
hunting rights are at the core of the federal s. 91(24) jurisdiction/central to the Indianness of the  
Treaty 3 Ojibway and worthy of federal protection under the doctrine of inter-jurisdictional  
immunity.  
 For all the reasons outlined elsewhere in these Reasons, I do not accept Ontario's  
submission that the "substantive bargain" allowed Ontario to remove Treaty Rights by "taking  
up" lands. I have found that the "substantive bargain" was that the lands could not be developed  
in a manner that would significantly interfere with Harvesting Rights. Ontario's rights to  
authorize uses of land were limited by the Treaty to authorizing uses of land that did not  
significantly interfere with Harvesting Rights. I have already held that only Canada could "take  
up" lands under the Treaty/extinguish Treaty Rights. Treaty Harvesting Rights were intended by  
Canada and the Ojibway to be enforceable substantive rights to be protected, not to be interfered  
with without the specific authorization of the Dominion of Canada. Although the Plaintiffs do  
not contest Canada's rights as defined by the Treaty, they do contest any right of Ontario under  
the Treaty to remove or ignore the burden of the Harvesting Rights and I have so held in  
answering Question One.  
 As Treaty-protected Harvesting Rights are at the core of the federal government's s.  
91(24) jurisdiction, Ontario cannot interfere with them unless allowed to do so under s. 88 of the  
Indian Act.  
Part 14. The Answer to Question Two  
290  
3. Does Inter-Jurisdictional Immunity Apply?  
 While many of the decided cases on inter-jurisdictional immunity have involved  
provincial attempts to directly regulate Treaty Rights, I am of the view that the doctrine applies  
in any situation where there is prima facie infringement of a core federal interest, whether direct  
or indirect. In my view, even an indirect interference with Treaty Harvesting Rights could  
significantly adversely affect those rights/constitute an infringement of those rights.  
 Indirect interference could sufficiently adversely affect the core of the federal jurisdiction  
for inter-jurisdictional immunity to apply. See Canadian Western. However, whether the indirect  
effects/impacts of the provincial activities/legislation under consideration here are sufficiently  
significant to constitute infringement is an issue to be determined later in these proceedings.  
4. Does s. 88 of the Indian Act Apply?  
 If a provincial law is found to impair "Indianness," it may nevertheless be held to apply if  
allowed to do so by s. 88 of the Indian Act, which reads as follows:  
88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application  
from time to time in force in any province are applicable to and in respect of Indians in the province,  
except to the extent that those laws are inconsistent with this Act or any order, rule, regulation or by-  
law made thereunder, and except to the extent that those laws make provision for any matter for  
which provision is made by or under this Act.  
[Emphasis added.]  
 Assuming that Ontario's legislation or acts adversely interfered with Harvesting Rights so  
as to constitute a prima facie infringement of Treaty 3 Harvesting Rights, could it or they be  
saved by the operation of s. 88 of the Indian Act?  
 In Morris, Deschamps and Abella JJ. wrote at para. 45:  
[45] But as the opening words of this provision demonstrate, Parliament has expressly declined to use  
s. 88 to incorporate provincial laws where the effect would be to infringe treaty rights. And this Court  
held in Côté at para. 86, that one of the purposes of s. 88 is to accord "federal statutory protection to  
Aboriginal treaty rights". Thus, on its face, s. 88 cannot be used to incorporate into federal law  
provincial laws that conflict with the terms of any treaty.  
[Emphasis added.]  
 The dissenting minority took the same position on the effect of s. 88 as follows:  
96 The Court clarified the effect of s. 88 of the Indian Act in Dick v. The Queen, [1985] 2 S.C.R.  
309. The Court noted that for the purposes of s. 88 there are two categories of provincial laws: (1)  
laws which can be applied to Indians without touching their Indianness; and (2) laws which cannot  
apply to Indians without regulating them qua Indians (pp. 326-27). The first category of provincial  
laws applies to Indians without any constitutional difficulty. The second category cannot apply to  
Indians by reason of the doctrine of inter-jurisdictional immunity. It is to this second category of  
provincial legislation that s. 88 of the Indian Act is directed. Thus, s. 88 incorporates provincial laws  
of general application that are otherwise constitutionally inapplicable to Indians — laws that are  
precluded from applying to Indians by the doctrine of inter-jurisdictional immunity because they  
affect core Indianness, a matter under federal jurisdiction.  
   
Part 14. The Answer to Question Two  
291  
97 However, as may be readily observed from its text, s. 88 does not incorporate all provincial laws  
that are otherwise inapplicable by reason of the doctrine of inter-jurisdictional immunity. Section 88  
operates, inter alia, "[s]ubject to the terms of any treaty". In other words, s. 88 cannot incorporate a  
provincial law that conflicts with a treaty right.  
[Emphasis added.]  
 Both the majority and the minority concluded that the trigger for application of the  
protective opening words of s. 88 of the Indian Act is prima facie infringement. Deschamps and  
Abella JJ. wrote for the majority in Morris:  
54 The protection of treaty rights in s. 88 of the Indian Act applies where a conflict between a  
provincial law of general application and a treaty is such that it amounts to a prima facie  
infringement. Where a provincial law of general application is found to conflict with a treaty in a way  
that constitutes a prima facie infringement, the protection of treaty rights prevails and the provincial  
law cannot be incorporated under s. 88.  
55 Where a prima facie infringement of a treaty right is found, a province cannot rely on s. 88 by  
using the justification test from Sparrow and Badger in the context of s. 35(1) of the Constitution Act,  
1982, as alluded to by Lamer C.J. in Côté, at para. 87. The purpose of the Sparrow/Badger analysis is  
to determine whether an infringement by a government acting within its constitutionally mandated  
powers can be justified. This justification analysis does not alter the division of powers, which is  
dealt with in s. 88. Therefore, while the Sparrow/Badger test for infringement may be useful, the  
framework set out in those cases for determining whether an infringement is justified does not offer  
any guidance for the question at issue here.  
 In these circumstances, the provincial law cannot displace Treaty Rights. Section 88 of  
the Indian Act can have no application.  
5. The Answer to Question Two  
 In my view, the doctrine of inter-jurisdictional immunity clearly applies here. Treaty  
Harvesting Rights are at the core of the federal 91(24) jurisdiction. Provincial attempts to  
infringe Treaty Rights are ineffective due to a combination of Canada's s. 91(24) jurisdiction  
over Indians and the special protection afforded to Treaty rights under s. 88 of the Indian Act.  
Provinces cannot significantly infringe rights at the core of s. 91(24). Significant infringements  
of Treaty 3 Harvesting Rights by the province can have no force or effect.  
 Section 88 of the Indian Act and the doctrine of inter-jurisdictional immunity together  
operate to render ineffectual any provincial action that constitutes a prima facie infringement of a  
Treaty Harvesting Right. [Morris at para. 55.]  
 In 1873, Morris was obviously not aware of the doctrine of inter-jurisdictional immunity.  
However, its effect accomplishes exactly what I have found he and the other Treaty  
Commissioners intended to do in drafting the Harvesting Clause in the Treaty. Morris was able  
to protect Harvesting Rights against significant interference by Ontario even without legislation.  
 The answer to Question Two is No.  
 
Part 15. The Effect of the Answers to Questions One and Two  
292  
15. THE EFFECT OF THE ANSWERS TO QUESTIONS ONE AND TWO  
 Counsel for Ontario submitted in argument that to answer the questions as this Court has  
done would "be contrary to balanced, cooperative federalism," "be inconsistent with Ontario's  
proprietary jurisdiction under s. 109, "dramatically change the balance of Canadian federalism as  
it applies in the Keewatin Lands and has been so applied for over a century;" "represent a  
marked, massive and unwarranted incursion into provincial proprietary and legislative  
jurisdiction" and "exclude Ontario from the bargaining table." He urged this Court to give  
Ontario "sufficient scope to fulfil its Constitutional obligations, exercise its Constitutional rights,  
and be at the table in any discussion affecting its interests."  
 In my view, the answers to Questions One and Two will not result in Ontario being  
excluded from the bargaining table. They will result in Ontario being required to respect the  
Harvesting Rights Clause in the Treaty as found by this Court as mutually intended by the parties  
to the Treaty.  
 Citing Mikisew, Ontario agrees that under the Honour of the Crown, it is already required  
to consult with the Ojibway whenever it is contemplating forestry uses that may adversely affect  
Harvesting Rights. [I have earlier commented on the applicability of the Mikisew standard here.]  
Although I have held that Ontario cannot access the "taking up" clause under the Treaty, Ontario  
can exercise its Constitutional powers under s. 109 to authorize land uses that do not  
significantly interfere with Treaty Harvesting Rights. Its right to patent and license land up to the  
point of significant interference involves a concomitant duty to assess in advance the impacts on  
Treaty Harvesting Rights of any activities it is being asked to patent or license.  
 These Answers to Questions One and Two do not "deprive Ontario of important rights  
that were part of the Confederation bargain." Since Confederation, s. 109 rights have been  
subject to interests other than interests of the province in the same. They have been subject to  
interference by valid federal legislation. They do not put Ontario behind "the Constitutional  
baseline" but at it, just as the Treaty Commissioners intended. In answering Questions One and  
Two, this Court has not determined that the activities of Ontario that precipitated this litigation  
do or did amount to prima facie infringement of Treaty Harvesting Rights. It has answered the  
questions it was ordered to answer in order to focus the issues and the evidence to be called  
during the next stage of these proceedings.  
 Whether or not the activities Ontario was purporting to authorize would significantly  
interfere with the Treaty Harvesting Rights has not been directly addressed in the evidence  
before this Court to date. Evidence must be adduced going beyond the fact that there was Euro-  
Canadian activity in the Keewatin Lands, and addressing the impact of that activity on Treaty  
Harvesting Rights.  
 The next stage of this litigation will involve a complicated impact assessment. During  
cross-examination on January 18, 2010, Chartrand explained at pp. 56-69 the myriad  
 
Part 15. The Effect of the Answers to Questions One and Two  
293  
considerations that will need to be taken into account. These include but may not be limited to:  
the practical effect of the proposed land use on Harvesting Rights; the consultation, or lack  
thereof, between Ontario and the Ojibway; the ability of the Ojibway and Ontario to  
simultaneously use the land; the scope of the area affected; how the use would affect particular  
families; the length of time involved in Ontario's proposed use of the land; the scale of the work;  
whether accommodations and benefits to the Ojibway are built in; where within Keewatin, the  
use is taking place; the depletion caused to resources, in particular regions within Keewatin, and  
the area as a whole. I have repeatedly emphasized herein that the Ojibway understood in 1873  
they would derive benefits from sharing their resources with the Euro-Canadians, including  
wages and other advantages that might alleviate or offset otherwise detrimental effects.  
 Throughout these Reasons, I have recognized the uniqueness of the circumstances under  
which Treaty 3 was negotiated. Just as the circumstances in Keewatin were extraordinary when  
the Treaty was made, they continue to differ greatly from those in other, more developed areas  
today. Keewatin remains largely virgin territory, most of which continues to be held as Crown  
lands.  
 The fact that Ontario has been exercising its s. 109 jurisdiction for many years in  
Keewatin without litigation in my view speaks volumes, not (as asserted by Ontario) about  
Ojibway agreement in 1873 to allow progressive extinguishment of their Harvesting Rights, but  
(as asserted by the Plaintiffs) about the unusual characteristics of the Treaty 3 area and the high  
level of compatibility between Harvesting Rights and Euro-Canadian land uses in Keewatin.  
From the largely undeveloped state of Keewatin today, it appears that adequate consultation and  
accommodation would go a long way towards ensuring continuing compatibility between  
Harvesting Rights and Euro-Canadian uses. Just as the circumstances of Treaty 3 were unusual  
in 1873 and provided a unique rationale for the extraordinary promises made, it appears that the  
circumstances in Keewatin today continue to provide a unique opportunity for cooperation and  
reconciliation.  
 Ontario by and large already has the ability to control the way in which future forestry  
development will occur and to pursue the objective of promoting compatibility and/or preventing  
or minimizing interference with Treaty 3 Harvesting Rights. In my view, pursuing that objective  
can only further reconciliation.  
 Counsel for Ontario agreed that it is already required to consult with the Treaty 3  
Ojibway with respect to how and where cutting will be allowed. He advised that forestry  
licenses are hundreds of pages thick. They contain very detailed plans respecting how much and  
when cutting will be allowed, what trees will be left, what replanting must be done, etc. Ontario  
already does have the power to require its licensees to take steps to avoid or minimize  
interference with Harvesting Rights. It already has the power to scope its licensing instruments to  
ensure that Harvesting promises in the Treaty are honoured.  
 The April 26, 2010 transcript contains the following at p. 24:  
Part 15. The Effect of the Answers to Questions One and Two  
294  
MR. STEPHENSON: My point is that there are tools available, you know, to the Ontario government  
in order to honour its treaty obligations and make sure that some recipient of an instrument with  
respect to Crown land [has] not an ability to validly and unduly entrench upon harvesting rights.  
 While Harvesting Rights on lands where uses inconsistent with their Harvesting Rights  
have been authorized have not been legally extinguished, the practical effect on the ground of the  
finding that the Ojibway and Canada did not agree that the geographic area where the Ojibway  
could hunt could be decreased as land use was authorized without the authorization of Canada  
may not be as significant as might appear at first blush. The Supreme Court of Canada has held  
that all treaties must be construed so as to include a prohibition against unsafe hunting. Fobister  
and counsel for the Plaintiffs both acknowledged that the Plaintiffs are committed to hunting  
safely.  
 These answers to Questions One and Two do not apply in the more developed portions of  
the Treaty 3 lands that constituted the Disputed Territory. They only apply to the Treaty 3 lands  
in Keewatin because Keewatin was and is unaffected by the 1891 Legislation.  
 Even today in Keewatin, it appears that the Plaintiffs' traditional harvesting activities are  
largely compatible with Euro-Canadian activities. They do not contend that all or even most  
Euro-Canadian land uses in Keewatin are or will be incompatible with Treaty 3 Harvesting  
Rights.  
 An infringement of Treaty Harvesting Rights will be found only if the activity is  
unreasonable or arbitrary and if it places a significant burden on their exercise or otherwise  
significantly interferes with them. Deschamps and Abella JJ. for the majority of the Court in  
Morris wrote at para 50:  
Insignificant interference with a treaty right will not engage the protection afforded by s. 88 of the  
Indian Act. This approach is supported both by Côté and by Nikal, where Cory J. rejected the idea  
that "anything which affects or interferes with the exercise of those rights, no matter how  
insignificant, constitutes a prima facie infringement" (para. 91 (emphasis added [by Deschamps and  
Abella JJ.])). Therefore, provincial laws or regulations that place a modest burden on a person  
exercising a treaty right or that interfere in an insignificant way with the exercise of that right do not  
infringe the right.  
(See also Côté at paras. 77-80 and Nikal, at paras. 98-102.)  
 Were Ontario's laws, regulations or licenses held to place only a modest burden on the  
exercise of Treaty Harvesting Rights or were they held to interfere in an insignificant way with  
the exercise of those Rights, they would not be constrained by inter-jurisdictional immunity.  
 I have already noted that impact assessment must involve both positive and negative  
factors. Potentially negative aspects of particular Euro-Canadian land uses can be addressed by  
ensuring that the Ojibway will benefit from the economic activity being proposed.  
 Although I have held that Ontario cannot unilaterally legislate or act in a manner to  
significantly interfere with hunting and fishing rights in Keewatin without authorization from  
Canada, there is nothing preventing it from conferring and cooperating with the Treaty 3  
Ojibway and with Canada.  
Part 15. The Effect of the Answers to Questions One and Two  
295  
 Post-1982, it is clear that the First Nations should be involved in matters that vitally  
affect them. I fail to see how allowing them to seek benefits from activities that would otherwise  
significantly adversely affect their livelihood, would undermine or interfere with balanced,  
cooperative federalism.  
 In my view, requiring prima face infringement/significant adverse impact before the  
doctrine of inter-jurisdictional immunity and s. 88 apply, and tolerating insignificant  
interferences with Harvesting Rights, strikes a balance among Ontario's s. 109 proprietary  
interest, the Treaty Rights of the Plaintiffs and Canada's power to make and enforce Treaty  
Rights and to legislate qua Indians. It serves to reconcile provincial powers over Ontario assets  
qua assets with federal powers over Indians qua Indians.  
 Because it cannot access the Treaty or pass legislation to infringe Harvesting Rights,  
Ontario does not have the power to significantly adversely impact the Treaty Harvesting Rights  
if, after consulting, the effect of its actions would be to significantly adversely impact Harvesting  
Rights. Under the Treaty, before that could happen, Canada, the historical guardian of Indians  
and their lands under the Constitution, would have to authorize that adverse impact/Treaty  
infringement and satisfy the Sparrow test.  
 Ontario is therefore restricted either to acting within the confines of the Treaty by  
avoiding significantly affecting the right (possibly by agreeing to mitigation measures with the  
Ojibway) or turning to Canada to enable it to significantly affect the right without the consent of  
the Ojibway.  
16. THE HONOUR OF THE CROWN  
 In 1982, a solemn commitment was made to recognize and affirm treaty rights (see  
Sparrow at pages 1108-1109.) Section 35 of the Constitution Act 1982 Constitutionalized the  
protection of treaty rights. Treaties define Aboriginal rights guaranteed by s. 35. McLachlin  
C.J.C. said at paragraph 20 of Haida Nation that s. 35 represents a promise of rights recognition.  
 Since 1982, the Supreme Court of Canada has made it clearer and clearer that, in the  
process of reconciliation, Canadian governments must respect treaty rights, interpret ancient  
treaties liberally and in context, having regard to the manner in which they would have been  
understood by the Indians. Words imposing limitations on treaty rights should be narrowly  
construed. Governments must uphold the highest standards in treaty implementation, an  
important element of the "rededication" of the commitment to Canada's Aboriginal people.  
 In Sparrow, after governments submitted that an Aboriginal right to fish had been  
extinguished prior to 1982 as a result of progressive restriction and detailed regulation, Dickson  
C.J.C. and LaForest J. emphasized that s. 35(1) of the Constitution Act, 1982 recognizes and  
affirms treaty rights and pointedly referred to Canada's past failures to uphold the Honour of the  
Crown at pp. 1103-1105; 1108:  
... there can be no doubt that over the years the rights of the Indians were often honoured in the  
breach ... As MacDonald J. stated in Pasco v. Canadian National Railway Co., [1986] 1 C.N.L.R. 35  
 
Part 16. The Honour of the Crown  
296  
(B.C.S.C.), at p. 37: "We cannot recount with much pride the treatment accorded to the native people  
of this country."  
For many years, the rights of the Indians to their Aboriginal lands -- certainly as legal rights -- were  
virtually ignored. The leading cases defining Indian rights in the early part of the century were  
directed at claims supported by the Royal Proclamation or other legal instruments, and even these  
cases were essentially concerned with settling legislative jurisdiction or the rights of commercial  
enterprises. For fifty years after the publication of Clement's The Law of the Canadian Constitution  
(3rd ed. 1916), there was a virtual absence of discussion of any kind of Indian rights to land even in  
academic literature. By the late 1960s, Aboriginal claims were not even recognized by the federal  
government as having any legal status. Thus the Statement of the Government of Canada on Indian  
Policy (1969), although well meaning, contained the assertion (at p. 11) that "Aboriginal claims to  
land . . . are so general and undefined that it is not realistic to think of them as specific claims capable  
of remedy except through a policy and program that will end injustice to the Indians as members of  
the Canadian community." … It took a number of judicial decisions and notably the Calder case in  
this Court (1973) to prompt a reassessment of the position being taken by government.  
In the light of its reassessment of Indian claims following Calder, the federal government on August  
8, 1973 issued "a statement of policy" regarding Indian lands. By it, it sought to "signify the  
Government's recognition and acceptance of its continuing responsibility under the British North  
America Act for Indians and lands reserved for Indians", which it regarded "as an historic evolution  
dating back to the Royal Proclamation of 1763, which, whatever differences there may be about its  
judicial interpretation, stands as a basic declaration of the Indian people's interests in land in this  
country". ... [Underlining emphasis added by Dickson C.J.C. and LaForest J.]  
It is obvious from its terms that the approach taken towards Aboriginal claims in the 1973 statement  
constituted an expression of a policy, rather than a legal position ... As recently as Guerin ... the  
federal government argued in this Court that any federal obligation was of a political character.  
It is clear, then, that s. 35(1) of the Constitution Act, 1982, represents the culmination of a long and  
difficult struggle in both the political forum and the courts for the constitutional recognition of  
Aboriginal rights. ... Section 35(1), at the least, provides a solid constitutional base upon which  
subsequent negotiations can take place. It also affords Aboriginal peoples constitutional protection  
against provincial legislative power.  
…The relationship between the Government and Aboriginals is trust-like, rather than adversarial, and  
contemporary recognition and affirmation of Aboriginal rights must be defined in light of this historic  
relationship.  
 In Haida Nation McLachlin C.J.C. wrote:  
19  
The honour of the Crown also infuses the processes of treaty making and treaty interpretation.  
In making and applying treaties, the Crown must act with honour and integrity ...  
20  
Where treaties remain to be concluded, the honour of the Crown requires negotiations leading  
to a just settlement of Aboriginal claims: R. v. Sparrow, [1990] 1 S.C.R. 1075, at pp. 1105-6.  
Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and  
to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982. Section 35 represents a  
promise of rights recognition, and "[i]t is always assumed that the Crown intends to fulfil its  
promises" (Badger, supra, at para. 41). This promise is realized and sovereignty claims reconciled  
through the process of honourable negotiation. It is a corollary of s. 35 that the Crown act  
honourably in defining the rights it guarantees and in reconciling them with other rights and  
interests. This, in turn, implies a duty to consult and, if appropriate, accommodate.  
Part 16. The Honour of the Crown  
297  
...  
25  
Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never  
conquered ... the honour of the Crown requires that rights be determined, recognized and respected.  
...  
27  
...  
The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests.  
32  
... Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing  
from rights guaranteed by s. 35(1) of the Constitution Act, 1982. This process of reconciliation flows  
from the Crown's duty of honourable dealing toward Aboriginal peoples, which arises in turn from  
the Crown's assertion of sovereignty over an Aboriginal people and de facto control of land and  
resources that were formerly in the control of that people. As stated in Mitchell v. M.N.R. at para. 9,  
"[w]ith this assertion [sovereignty] arose an obligation to treat Aboriginal peoples fairly and  
honourably, and to protect them from exploitation" [Emphasis added by McLachlin C.J.C.].  
 On the same day as Haida Nation was released, McLachlin C.J.C.'s reasons in Taku River  
were also released. In that case, she characterized a province's submission that it only had a duty  
of fair dealing before the determination of litigation as an impoverished view of the Honour of  
the Crown and all that it implies.  
 Last autumn, the Supreme Court also released Beckman. Deschamps J. made the  
following observation about the relationship between treaties and the Honour of the Crown at  
para. 106:  
For the treaty to have legal value, its force must be such that neither of the parties can disregard it.  
 Since 1982, the Courts have consistently emphasized the legal and enforceable nature of  
treaty rights when interpreting the will of Parliament in enacting s. 35.  
 Since 1982, the Supreme Court of Canada has repeatedly referred to the Honour of the  
Crown in iterating and reiterating that treaties are solemn, sacred and legally enforceable  
covenants. It has emphasized that treaty promises were not made out of simple Crown  
benevolence, but as consideration for benefits it received. [See the survey of Professor Leonard  
Rotman in "Marshalling the Principles from the Marshall Morass" (2000) 23 Dalhousie L.J. 5 at  
24-29.]  
 From the beginning of opening arguments until the end of the case, counsel for Ontario  
chanted the phrase 'Honour of the Crown' almost like a mantra, as if the reassuring cadence of its  
repetition would salve any concerns this Court might otherwise have about its failure to honour  
Treaty Rights in the past.  
 Counsel for the governments repeatedly assured this Court that they are aware of their  
duties to uphold the Honour of the Crown and that they can be expected to respect the Treaty  
promises. Post Haida Nation and Mikisew, Ontario acknowledges that they are legally obligated  
to respect Treaty Rights under the doctrine of the Honour of the Crown.  
 However, Ontario's present assurances came with a significant caveat. Ontario wants to  
honour the Treaty promise as Ontario narrowly interprets it.  
Part 16. The Honour of the Crown  
298  
 While acknowledging that it must act honourably, in an attempt to support an  
interpretation having the effect of limiting Treaty Harvesting Rights, Ontario sought to benefit  
(to the disadvantage of the Ojibway) from reliance on the technical concept of indivisibility of  
the Crown.  
 I have earlier observed, based on its submissions in earlier litigation including but not  
limited to the Annuities Case, and statements made by representatives of Ontario quoted in the  
evidence, that Ontario's position in this litigation that it is bound to respect Treaty Rights is  
newfound, not long held. It does not reflect the stance taken by Ontario in the years more  
proximate to the time the Treaty was made, and for at least 100 years thereafter. It therefore  
cannot fairly be said to reflect Ontario's intention at the time the Treaty was made (not that  
Ontario claimed to be a party to the Treaty in 1873.) Parties are free to change their legal  
positions but the relevant time for the determination of intention here is 1873.  
 Ontario's approach to this litigation, while pleasantly civil, was strongly adversarial.  
Always focusing on its own proprietary rights, it downplayed the plain and clear reference in the  
Harvesting Clause to Canada. It characterized as a "mistake" what I have found to be Morris'  
deliberate attempt to protect the Harvesting Rights of the Ojibway (by referring to Canada so  
Canada could manage the situation/ensure its promises were kept, in the event Canada lost the  
Boundary Dispute.)  
 Here, Ontario was asking this Court to interpret the Harvesting Clause in a manner  
contrary to the plain meaning of the Treaty words, to benefit itself by expanding its s. 109 rights  
while restricting Ojibway rights validly conferred under s. 91(24).  
 Ontario alleged a "mutual" intention that its own experts, including Chartrand, virtually  
conceded on cross examination did not exist, by agreeing that the Commissioners, acting on  
behalf of Canada, intended the reference to Canada in the Harvesting Clause to be to Canada  
and only to Canada, i.e., not to the Queen or the Crown.  
 Ontario attempted to use traditional Euro-Canadian common law property principles to  
support the relief it was seeking, despite the evidence of Chartrand called by Ontario that  
Ojibway concepts were vastly different (e.g., they did not have a concept of buying and selling  
land.)  
 In this litigation, counsel for Ontario continued to rely on an argument that the policy of  
the Canadian government was to agriculturalize the Indians, yet its actions circa 1914-1915  
largely deprived the Ojibway of the opportunity to benefit from agriculture and forced them to  
rely more on traditional harvesting.  
 On the one hand, Ontario insisted on being at the table so that it can fulfill its  
Constitutional obligations. On the other, by insisting it has exclusive rights over lands in Ontario,  
it sought to exclude Canada and by extension the Ojibway, from enjoying the same privilege.  
[Had Ontario been held to have the right to "take up" lands in Ontario under the Treaty, the  
Courts would have had no jurisdiction to protect Harvesting Rights in respect of those lands.]  
Part 16. The Honour of the Crown  
299  
 Counsel for Ontario maintained that all "taking up" of land within Ontario is exclusively  
within Ontario's jurisdiction, whether or not "taking up" by Ontario would significantly interfere  
with Treaty Harvesting Rights. On its interpretation of the Treaty, Ontario would have unilateral  
control over lands "taken up" while the Ojibway would have no rights in connection with those  
lands.  
 I have already referred at length to Ontario's submissions on Mikisew, where the mutual  
intention of the parties at the time the treaty was made was held to be different from the mutual  
intention here. Ontario relied heavily on Mikisew in submitting that involving Canada in  
authorizing "taking up" would serve no useful purpose because Canada's and Ontario's duties to  
the Ojibway in respect of "taking up" are identical. Counsel for Ontario stated in argument on  
April 26, 2010 at p. 38: "That is it. And that's why we say that bringing Canada in as a third  
party at the table really doesn't add anything, because that's not part of their trusteeship  
obligation either historically or in law."  
 Ontario did not recognize any difference between a duty to honour Treaty Rights and a  
duty to protect Treaty Rights or any possibility that on the facts here, Canada's duties might be  
held to be more onerous than they were held to be in Mikisew.  
 I have already commented that Ontario's acceptance of the Mikisew standard, given the  
differences between the facts in Mikisew and the facts here, was questionable.  
 Binnie J. noted in Mikisew that there was, in the Minister's argument, a strong advocacy  
of unilateral Crown action that not only ignored the mutual promises of the treaty, both written  
and oral, but were also the "antithesis of reconciliation and mutual respect." I note that Ontario's  
primary argument here in connection with both Questions One and Two was similar.  
 Canada submitted in this Court that it has no continuing role in protecting Treaty  
Harvesting Rights in Keewatin. All its responsibility in that regard has devolved to Ontario.  
 In the past, as noted in Sparrow, governments have vigorously resisted the notion that  
they could owe legally enforceable duties under the Treaty. Counsel for the Plaintiffs contended  
that in substance they were still doing so here. As in Marshall, he suggested that the conduct of  
the Defendants here has put the Honour of the Crown to the test.  
 During argument, I tested the Plaintiffs' submission with all counsel.  
 I probed whether there might be a disconnect between the conduct required of the Crown  
under the Honour of the Crown, and the governments' approach to the issues here.  
 These inquiries were not directed at counsel personally, who behaved civilly,  
competently and professionally throughout. They arose out of a sincere effort on my part to try to  
reconcile the requirements of honourable Crown behaviour, as articulated by our Supreme Court,  
with the approaches to the issues being taken before this Court.  
Part 16. The Honour of the Crown  
300  
 I recognized on the one hand that every litigant should be able to put its best foot  
forward. On the other hand, I questioned whether the conduct of the Crown parties was geared  
sufficiently to complying with recent case law emphasizing the need to affirm and recognize  
Treaty Rights, regard Treaty promises as "sacred covenants," give treaties a broad and liberal  
interpretation and bear in mind the perspective of the Aboriginal signatories.  
 I grappled with how governments can be expected to promote reconciliation, yet test the  
limits of their liability in the same way as other litigants are entitled to do.  
 My inquiries about Honour of the Crown duties canvassed with counsel during argument  
were not a factor in my fact-finding process. My factual determinations herein were made after  
reviewing, comparing and analyzing all of the evidence and without regard to considerations  
involving the Honour of the Crown.  
 Had I found the facts as the governments urged me to find them, they could have  
supported the interpretation of the Treaty that the governments were seeking.  
 The governments have been afforded the opportunity to present a version of the facts  
which, if accepted, could have supported the legal conclusions they were asking this Court to  
reach.  
 That being said, I have now rejected much of the evidence on mutual intention and  
understanding relied upon by the governments in support of their narrow interpretation of the  
Harvesting Clause.  
 On the facts as I have found them, I am of the view it would violate the Honour of the  
Crown were Ontario to now continue to ignore the process clause that I found was deliberately  
inserted by the Commissioners to protect Treaty Harvesting Rights. Having been unsuccessful, I  
am firmly of the view that they should now, to use the words of Binnie J. in Mikisew at  
paragraph 63, "get on with performance."  
 The Honour of the Crown requires not only a fulfillment of Constitutional responsibilities  
and Treaty obligations, but also genuine openness and commitment to achieving reconciliation.  
Part 16. The Honour of the Crown  
301  
17. THE NEXT STAGE OF THIS LITIGATION  
 During the next stage, counsel will call evidence with respect to whether the forestry  
activity Ontario is proposing to authorize is nevertheless allowable because it does not/will not  
significantly interfere with Treaty Harvesting Rights.  
 As already noted, the Plaintiffs and the Defendants take differing positions on the impact  
on harvesting of the forestry activities that Ontario is being asked to license. The Plaintiffs  
contend that they would significantly interfere with Harvesting Rights under the Treaty. Ontario  
submits they would not.  
 It will be necessary for the Court to make the complex type of impact assessment not  
undertaken during this stage of the trial. The Court will consider the types of factors  
acknowledged by Chartrand, Von Gernet and Lovisek to be appropriate in making such an  
assessment.  
 If the forestry activities under consideration will not significantly interfere with Ojibway  
Harvesting Rights, the federal s. 91(24) interest will not engage, and Ontario will be free to  
licence such activities without federal authorization.  
 If they will significantly interfere, Canada must be involved in authorizing the proposed  
activity. I emphasize that it will be necessary to assess not only the detriments but also the  
benefits that would accrue to the Ojibway as a result of any proposed forestry activity. The  
Ojibway agreed to share the use of the resources so long as they also shared the benefits arising  
out of those uses. Therefore, if proposed forestry activities would benefit the Ojibway, they  
would be less likely to be held in breach of the Treaty.  
18. FINAL OBSERVATIONS  
 Because I recognize that this judgment is lengthy, while re-iterating that I have felt it  
necessary to detail my Reasons as I have, the following summarizes the heart of the matter:  
General Concern About Framing of the Issues  
 Ontario has framed the issues here in terms of its own property rights. The Plaintiffs are  
not disputing that Ontario has title to lands in Ontario. However, Ontario's argument understates  
the importance of Harvesting Rights to the Ojibway and virtually ignores intersecting s. 91(24)  
and s. 109 jurisdictions. Harvesting Rights were crucial to the Ojibway in 1873 and continue to  
be in 2011.  
Findings of Fact and Law re 1873-1912/Answers to Questions One and Two  
 Canada needed the Treaty more than the Ojibway did in 1873 in order to build the CPR  
railway and secure the Dawson Route. Both were vitally necessary to the overall development of  
       
Part 18. Final Observations  
302  
the West and Canada. Canada knew the Ojibway could walk away from the 1873 negotiations  
without reaching an agreement. Indeed, they had done so after the two previous attempts.  
 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 consideration  
for the Ojibway.  
 On October 2, the negotiations did not go well. Overnight on October 2, or early on  
October 3, the tide changed.  
 On the morning of October 3, the Chiefs returned to the negotiations. In the  
Commissioners' presence and with their knowledge, McKay assured them they would "be free as  
by the past for [their] hunting and wild rice harvest." I have found that this was the mutual  
intention of the parties. On October 3, Canada promised the Ojibway that after the Treaty was  
signed they would be able to make a living harvesting resources throughout the Treaty 3 area as  
in the past.  
 I have found as a fact that the Ojibway were unaware that Ontario could affect their  
Harvesting Rights. They were relying on Canada/the Queen's Government at Ottawa to  
implement and enforce the promises. The relationship with the Queen's Government at Ottawa  
was important to the Ojibway.  
 Canada enforced the Treaty Rights, as Morris promised, for several years while the CPR  
was being constructed.  
 In the eyes of Morris and Canada, it was pivotal that the Ojibway remain content while  
the 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 be  
kept, 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, referring  
to the Dominion in the Harvesting Clause. For all the reasons previously set out, I have no  
reservation in concluding Morris tailored the wording of the Treaty to ensure that the  
Government of Canada could stand between the local government and the Indians, where  
necessary, just as the Imperial Government had done earlier.  
 Being of the view that the provisions of the treaties must be carried out with the "utmost  
good faith," I have found that Morris would not have drafted Treaty terms that would deprive  
Canada of its power to ensure that that was done. In mentioning Canada, he was properly  
exercising his jurisdiction under s. 91(24).  
 Morris was familiar with the Canadian Constitution. He did what was constitutionally  
open to Canada – to protect Indian and indirectly national interests.  
Part 18. Final Observations  
303  
 The 1891 Legislation was intended to apply only to the Disputed Territory, the portion of  
the Treaty 3 territory affected by St. Catherine's Milling. The 1891 Legislation was not intended  
to apply, and did not apply, to areas unaffected by St. Catherine's Milling, such as those at issue  
here. There is no "evidence of a clear and plain intention on the part of the government to  
extinguish treaty rights" (Badger at para. 41) either by the 1891 or the 1912 Legislation.  
 The 1912 events did not alter Treaty 3 Harvesting Rights in Keewatin.  
Implications of This Decision  
 While Canada does not have title to land in Ontario, Canada has jurisdiction under s.  
91(24) and the Treaty to limit Treaty Harvesting Rights. Ontario does not. This decision does not  
put Ontario behind the Constitutional baseline but at it – precisely as the Commissioners  
intended in 1873. Reference to Canada in the Harvesting Clause was not colourable but  
Constitutional.  
 The Honour of the Crown must be fulfilled on a continuing basis. The Commissioners  
promised to implement and enforce Treaty Rights. In light of the findings of fact and the other  
matters outlined in these Reasons, they should now "get on with performance" of their  
obligations.  
19. DISPOSITION  
 The answer to Question One is No.  
 The answer to Question Two is No.  
 Counsel have asked to make submissions before any further order is made.  
 I am prepared to hear further submissions immediately on the content of the formal order  
to be issued herein.  
 Counsel should immediately make arrangements for a conference call to discuss any  
matters that need to be addressed in the immediate future.  
______________________________  
M.A. SANDERSON J.  
Released: August 16, 2011  
   
Appendices  
304  
APPENDICES  
Appendix A. Summary Describing Procedural Background and History of this Litigation  
 From Agreed Procedural and Forestry Narrative: In April of 2000, three Grassy Narrows  
members – Willie Keewatin, Andrew Keewatin Jr. and Joseph William Fobister – commenced  
an application for judicial review against the Minister and Abitibi (the "Application"), seeking  
relief including the following:  
[a] A declaration or declarations that each of the Applicants are beneficiaries under  
Treaty 3 and as such have rights to fish and hunt within the provincially defined  
Whiskey Jack Forest Management Unit;  
[b] A declaration that the Minister of Natural Resources (the "Minister") or his  
delegate had no authority to approve any Forest Licences, Forest Management Plans,  
work schedules or other approvals or authorizations for forest operations, within those  
lands subject to Treaty 3 that were added to the Province of Ontario by virtue of The  
Ontario Boundaries Extension Act, S.C. 1912, c. 40, (the "Keewatin Lands") so as to  
infringe, violate, impair, abrogate, or derogate from, the rights to hunt and fish  
guaranteed to the Applicants by Treaty 3;  
[c] A declaration that within the Keewatin Lands, the Government of the Province of  
Ontario, its Ministers or delegates, have no power or jurisdiction to "take up" lands for  
lumbering within the meaning of Treaty 3, since this power is exclusively reserved to  
the Government of the Dominion of Canada;  
[d] A declaration that within the Keewatin Lands, the Government of the Province of  
Ontario, its Ministers or delegates, have no power or jurisdiction to do or permit any  
activity that infringes, violates, impairs, abrogates or derogates from, the Applicants'  
rights to hunt and fish pursuant to Treaty 3;  
[e] A declaration that the activities carried out by Abitibi-Consolidated Inc. pursuant  
to Sustainable Forest Licence 5442253, the 1999-2019 Forest Management Plan for  
the Whiskey-Jack Forest Management Unit, and any work schedules or other  
approvals and authorizations issued by the Minister or his delegate to Abitibi-  
Consolidated Inc. for its forest operations within the Whiskey Jack Forest  
Management Unit, infringe, violate, impair, abrogate, or derogate from, the rights to  
hunt and fish guaranteed to the Applicants by Treaty 3;  
[f] A declaration that Sustainable Forest Licence 5442253, the 1999-2019 Forest  
Management Plan-for the Whiskey Jack Forest Management Unit and any work  
schedules or other approvals and authorizations of forest operations, insofar as they  
apply to the Keewatin Lands, are void and of no effect;  
[g] An order quashing the Minister or his delegate's decision to approve Sustainable  
   
Appendices  
Forest Licence 5442253, the 1999-2019 Forest Management Plan for the Whiskey  
305  
Jack Forest Management Unit and any work schedules or other approvals and  
authorizations of forest operations related to that Plan, insofar as they apply to the  
Keewatin Lands;  
[h] An order prohibiting the Minister or his delegate from approving any forest  
licences, forest management plans, work schedules or other approvals and  
authorizations of forest operations related to the Whiskey Jack Forest Management  
Unit, insofar as they apply to the Keewatin Lands;  
[i] An order granting an interim stay of the operation of Sustainable Forest Licence  
5442253, the 1999-2019 Forest Management Plan for the Whiskey Jack Forest  
Management Unit, and any work schedules or other approvals and authorizations of  
forest operations pursuant to that Plan insofar as they apply to the Keewatin Lands, or  
such other interim order as this Honourable Court considers proper, pending the final  
determination of this application.  
Emphasis added.  
 The Application was quashed by Then J. on application of both the Minister and Abitibi  
(Keewatin v. Ontario (Minister of Natural Resources) (2003), 66 O.R. (3rd) 370 (Div Ct)), with  
leave to bring an action raising the same issues. Then J. reasoned as follows:  
[35] However, the relief sought belies this submission. In paragraph (a), the applicants request a  
declaration that they are beneficiaries under Treaty 3 and have a right to hunt and fish in the  
provincially defined Whiskey Jack Forest Management Unit. This Court cannot grant the relief  
sought for two reasons. First, this declaration is not related to the exercise of a statutory power.  
Second, what the applicants are requesting in this paragraph is a finding of fact, and establishing this  
fact is the basis for the application. The finding of facts is a key aspect of this case, but is not  
something that the Divisional Court is designed to do on judicial review. The making of such a  
determination will require an extensive review of history, experts, and documents. Even if it is  
assumed that the applicants have these rights, there are other important factual determinations that are  
raised by these declarations that must be resolved before the declarations can be considered – for  
example, the question of whether or not these rights have been infringed by the moving parties.  
[45] Unlike Masters, supra, the motion record places sufficient material before this Court to  
determine that there are significant facts in dispute that require an extensive review of the evidence,  
including considerable expert evidence. The adjudication of the issues raised by this application  
requires consideration of a wide range of historical, anthropological, ecological, biological and  
economic evidence in addition to evidence concerning the course of dealings between the applicants,  
their First Nation, the Ontario Ministry of Natural Resources and Abitibi over a considerable period  
of time. The complexity and volume of this evidence is compounded by the challenges posed by the  
special evidentiary dimensions of Aboriginal and treaty rights cases. In these circumstances, it is  
imperative for the material facts to be found on the basis of direct exposure to evidence tendered at  
trial.  
[46] It is also likely that many material facts will be disputed. The applicants identify a number of  
grounds supporting their request for relief. The Minister disputes many of the factual assertions or  
assumptions on which the applicants' case appears to be premised – i.e. the fact that the logging  
activities are infringing the applicants' Treaty 3 rights. It is also possible that a number of factual  
issues will have to be examined in detail in order to decide issues relating to the justifiable  
Appendices  
306  
infringement of the applicants' treaty rights. Where there is an evidentiary dispute with respect to  
facts that are material to the issues to be resolved and the inferences to be drawn from those facts, a  
summary application is not the appropriate vehicle for determining such issues: Energy Probe, supra  
at 470; City of Burlington, supra at 589; Seaway Trust, supra at 533; Moyle v. Palmerston Police  
Services Board reflex, (1995), 25 O.R. (3d) 127 at 131 (Div. Ct.); R. v. Jetco Manufacturing Ltd.  
reflex, (1987), 57 O.R. (2d) 776 at 781 (C.A.).  
[47] Much of the evidence necessary to address the issues raised by this application will be expert  
opinion evidence. This type of evidence requires particularly close judicial scrutiny, especially if  
there are conflicting expert opinions. The additional opportunity for assessing credibility afforded by  
viva voce evidence is particularly important in the Aboriginal and treaty rights context (Delgamuukw  
v. British Columbia 1993 CanLII 4516 (BC C.A.), (1993), 104 D.L.R. (4th) 470 at 560-561  
(B.C.C.A.).  
[59] A great deal of evidence, including expert evidence will be called by the parties on a number of  
disputed facts and issues, and it is inappropriate to deal with these disputes of material fact by way of  
summary application: Renegade, supra. Some of the disputed issues include: (a) the proper  
interpretation of the applicable provisions of Treaty 3; (b) inferences to be drawn from the applicable  
legislative history; (c) the adverse effects, if any, of logging operations on wildlife resources; (d) the  
nature and extent of benefits generated by logging activities in the area in question for both the  
general public and First Nations members; and (e) the nature and extent of consultations and  
discussions between the applicants, their First Nations community, and the respondents concerning  
the conduct of the logging operations in question.  
 In January of 2005, the three Applicants commenced this action as Plaintiffs. Prior to the  
filing of Statements of Defence, they brought two motions before the Case Management Judge,  
Madam Justice Spies:  
[a] A motion for interim costs in any event of the cause; and  
[b] A motion for a representation order, providing authorization for the plaintiffs to  
bring this action on behalf of all Grassy Narrows members, pursuant to Rule 12.08 of  
the Rules of Civil Procedure.  
 On May 23, 2006, a Representation Order was made [on consent] following a Grassy  
Narrows Band Council resolution authorizing this action.  
 After defining the two threshold issues now before me by Order dated June 28, 2006,  
Spies J. granted the Plaintiffs' motion for interim costs, ordering interim costs payable in advance  
on a partial indemnity basis in any event of the cause for the purpose of determining the  
threshold issues. She stayed the balance of the litigation pending the determination of the  
threshold issues.  
 The parties then delivered pleadings in respect of the threshold issues to be tried.  
 After the Minister commenced third party proceedings against the Attorney-General of  
Canada ("Canada"), Canada defended both the third party claim and the main action (that is, the  
main action in respect of the trial of the threshold issues.)  
Appendices  
307  
 In summer 2008, Abitibi (now Abitibi-Bowater Inc.) indicated to the Ministry its interest  
in having discussions regarding the transfer or surrender of its sustainable forest licence for the  
Whiskey Jack Forest. This was the primary tenure underlying the forestry authorizations that the  
Plaintiffs had challenged. Discussions with the Ministry about a formal surrender of the license  
were initiated in September 2008. In April of 2009, Abibiti entered into protection under the  
Companies' Creditors Arrangement Act, R.S.C., 1985, c. C-36, as amended (the "CCAA.")  
 In June of 2009, Gascon J. of the Quebec Superior Court issued an order in the CCAA  
proceedings lifting any stay of proceedings as it applied to Abitibi's participation in this action  
and determining that the stay under the CCAA did not apply in this action as against Ontario and  
Canada.  
 As of September 29, 2009, the Minister accepted Abitibi's surrender of its sustainable  
forest licence for the Whiskey Jack Forest. Counsel for Abitibi withdrew from further  
participation in the trial on November 16th, 2009.  
 In 2009, the plaintiff Willie Keewatin passed away. The title of proceeding and the  
Representation Order were amended accordingly, on consent.  
 No new sustainable forest licence has been issued for the Whiskey Jack Forest. However:  
[a] Some timber harvesting has continued in the Whiskey Jack Forest since Abitibi  
surrendered its sustainable forest licence, on the basis of forest resource licences  
issued by the Ministry of Natural Resources for specific areas (outside of the area  
identified by Grassy Narrows as its traditional land use area);  
[b] Ontario has not taken any steps to remove the Whiskey Jack Forest, or the  
provincial Crown lands identified by Grassy Narrows as its traditional land use area  
(which are within the Whiskey Jack Forest), from the inventory of lands available for  
use or disposition on the basis of provincial authorizations, including authorizations  
that would permit forestry operations;  
[c] The Ministry of Natural Resources continues to explore issuing a new licence or  
licenses for the purpose of authorizing forestry activities in the Whiskey Jack Forest,  
and continues to engage in discussions with Grassy Narrows and others with respect  
to the Ministry's interest in issuing one or more forestry licences for areas within or  
overlapping the area identified by Grassy Narrows as its traditional land use area;  
[d] To date, Grassy Narrows has not agreed to the types of forestry operations  
proposed by the Ministry for that part of the Whiskey Jack Forest that Grassy  
Narrows identifies as its traditional land use area. As noted above, part of the area  
that Grassy Narrows identifies as its traditional land use area, lies within the  
Keewatin Lands.  
Appendices  
308  
Appendix B:  
Agreement regarding Historical Documents  
Court File No. 05-CV-281875 PD-A1  
ONTARIO  
SUPERIOR COURT OF JUSTICE  
B E T W E E N:  
ANDREW KEEWATIN JR. and  
JOSEPH WILLIAM FOBISTER on their own behalf and on  
behalf of all other members of GRASSY NARROWS FIRST NATION  
PLAINTIFFS  
AND  
MINISTER OF NATURAL RESOURCES and  
ABITIBI-CONSOLIDATED INC.  
DEFENDANTS  
THIRD PARTY  
AND  
THE ATTORNEY GENERAL OF CANADA  
AGREEMENT REGARDING PRIMARY DOCUMENTS  
1.  
The primary historical documents introduced at trial (including but not limited to  
those duplicated in Exhibit 1, and the Alexander Morris book marked as Exhibit 9):  
a) Should be presumed to be authentic, subject to a contrary finding by the  
trial judge; and  
b) Can be used by the trial judge as evidence for the truth of their contents,  
recognizing that such evidence is rebuttable, and that the evidence offered  
by any document should be considered in light of evidence provided by  
the witnesses and by other documents.  
2.  
This agreement does not apply to secondary documents, such as the texts and  
journal articles referred to by many of the experts. The usual evidentiary rules apply for  
such documents.  
 
Appendices  
309  
Appendix C: Table of Cases  
Short Form  
Adams  
Citation  
R. v. Adams (1996), 138 D.L.R. (4th) 657  
Annuities Case  
Annuities Case  
(Supreme Court)  
Badger  
Canada v. Ontario, [1910] A.C. 637  
Ontario v. Canada (1909), 42 S.C.R. 1, aff'd [1910] A.C. 637 (P.C.)  
R. v. Badger, [1996] 1 S.C.R. 771  
Bartleman  
R. v. Bartleman (1984), 55 B.C.L.R. 78 (C.A.)  
Bear Island  
Beckman  
Ontario (Attorney-General) v. Bear Island Foundation, [1991] 2 S.C.R. 570  
Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3  
S.C.R. 103  
BNA Act 1867  
Brooks-Bidlake  
Reference re: British North America Act, 1867, s. 108 (Can.) [1898] A.C.  
700. Also referred to herein as the Fisheries Case.  
Brooks-Bidlake and Whittall Limited v. Attorney General for British  
Columbia, [1923] A.C. 450 (P.C.)  
Canadian  
Western  
Canadian Western Bank v. Alberta, 2007 SCC 32, [2007] 2 S.C.R. 3  
("Canadian Western")  
Commanda  
Côté  
Delgamuukw  
Fisheries Case,  
The  
R. v. Commanda, [1939] 3 D.L.R. 635 (Ont. H.C.)  
R. v. Côté, [1996] 3 S.C.R. 139; (1996) 138 D.L.R. (4th) 385  
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010  
Attorney-General for the Dominion of Canada v. Attorneys-General for the  
Provinces of Ontario, Quebec and Nova Scotia, [1898] A.C. 700 (P.C.)  
R. v. George, [1966] S.C.R. 267  
George  
Guerin  
Haida Nation  
Guerin v. The Queen, [1984] 2 S.C.R. 335 ("Guerin")  
Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73,  
[2004] 3 S.C.R. 511  
Ireland  
R. v. Ireland (1990), 1 O.R. (3d) 577 (Gen. Div.)  
Irwin Toy  
Manuel  
Irwin Toy v. Quebec (Attorney General), [1989] 1 S.C.R. 927  
Manuel and others v Attorney, [1982] 3 All ER 786 at 799 (appr'd by the  
Court of Appeal on other grounds in Manuel and others v Attorney General,  
[1982] 3 All ER 822 A.C., leave to appeal to the House of Lords refused at  
832)  
Maritime Bank  
Marshall  
Liquidators of Maritime Bank of Canada v. Receiver General of New  
Brunswick, [1892] A.C. 437 (P.C.)  
R. v. Marshall, [1999] 3 S.C.R. 456; (1999), 177 D.L.R. (4th) 513  
Marshall-Bernard R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220  
Mercer  
Mikisew  
Attorney-General of Ontario v. Mercer (1883), 8 A.C. 767 (P.C.)  
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),  
2005 SCC 69, [2005] 3 S.C.R. 388  
Mitchell  
Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; 71 D.L.R. (4th) 193  
Mitchell v. M.N.R. Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911  
Morgan Morgan v. Prince Edward Island (Attorney General) (1975), [1976] 2  
 
Appendices  
310  
S.C.R. 349  
Morris  
Nikal  
R. v. Morris, 2006 SCC 59, [2006] 2 S.C.R. 915  
R. v. Nikal, [1996] 1 S.C.R. 1013  
Northwest Falling Northwest Falling Contractors Ltd. v. The Queen, [1980] 2 S.C.R. 292  
Nowegijick  
Ontario v.  
Nowegijick v. The Queen, [1983] 1 S.C.R. 29  
Ontario v. Canada (1895), 25 S.C.R. 434  
Canada (1895)  
OPSEU v.  
OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2  
Ontario  
Osoyoos  
Rio Tinto Alcan  
Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85, [2001] 3 S.C.R. 746  
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010]  
2 S.C.R. 650  
Sannichton  
Marina  
Secession of  
Quebec  
Saanichton Marina Ltd. v. Claxton (1989), 36 B.C.L.R. (2d) 79  
Reference re Secession of Quebec (1998), 161 D.L.R. (4th) 385 at 421 [para  
82] also [1998], 2 S.C.R. 217  
Secretary of State R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte  
Indian Association of Alberta, [1982] 2 All E.R. 118 at 132  
Seybold  
(Chancellor  
Boyd's decision)  
Ontario Mining Co. v. Seybold (1899), 31 O.R. 386 (H.C.), aff'd (1900), 32  
O.R. 301 (Div. Ct.), aff'd (1901), 32 S.C.R. 1, aff'd (1902), [1903] A.C. 73  
(P.C.)  
Seybold (J.C.P.C.) Ontario Mining Co. v. Seybold (1902), [1903] A.C. 73 (P.C.)  
Sikyea  
R. v. Sikyea (1964), 43 D.L.R. (2d) 150 (N.W.T. C.A.), aff'd [1964] S.C.R.  
642  
Silver Brothers  
Ltd.  
Attorney General for Quebec v. Attorney General for Canada, [1932] A.C.  
514 (P.C.)  
Simon  
Smith  
Smylie  
Sparrow  
Simon v. The Queen, [1985] 2 S.C.R. 387  
Smith v. Canada, [1983] 1 S.C.R. 554  
Smylie v. The Queen (1900), 27 O.A.R. 172 (C.A.)  
R. v. Sparrow, [1990] 1 S.C.R. 1075  
Spies J. Decision Keewatin v. Ontario (Minister of Natural Resources) (2006), 32 C.P.C.  
(6th) 258 (Ont. S.C.J.)  
St. Catherine's  
Milling  
St. Catherine's Milling and Lumber Co. v. The Queen (1888), 14 A.C. 46  
(P.C.)  
Sundown  
R. v. Sundown, [1999] 1 S.C.R. 393  
Taku River  
Taku River Tlingit First Nation v. British Columbia (Project Assessment  
Director), 2004 SCC 74, [2004] 3 S.C.R. 550  
R. v. Van der Peet, [1996] 2 S.C.R. 507  
Van der Peet  
Union Colliery  
Union Colliery Co. of British Columbia Ltd. v. Bryden, [1899] A.C. 580  
(P.C.)  
Waters Powers  
Reference  
Reference re: Waters and Water-Powers, [1929] S.C.R. 200  
Wewaykum  
Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245  
Appendices  
311  
White  
R. v. White and Bob (1964), 50 D.L.R. (2d) 613, aff'd (1965) 52 D.L.R. (2d)  
481 (S.C.C.)  
312  
CITATION: Keewatin v. Minister of Natural Resources 2011 ONSC 4801  
Court File No. 05-CV-281875PD  
Date: 20110816  
ONTARIO  
SUPERIOR COURT OF JUSTICE  
B E T W E E N:  
ANDREW KEEWATIN JR. and JOSEPH  
WILLIAM FOBISTER on their own behalf and on  
behalf of all other members of GRASSY  
NARROWS FIRST NATION  
Plaintiffs  
- and –  
MINISTER OF NATURAL RESOURCES and  
ABITIBI-CONSOLIDATED INC.  
Defendants  
- and –  
THE ATTORNEY GENERAL OF CANADA  
Third Party  
REASONS FOR JUDGMENT  
M.A. SANDERSON J.  
Released: August 16, 2011  


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