Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 112A. I believe -- I've always read and interpreted the -- this flow of reporting in The Manitoban accountas 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 questiondealing with a different issue altogether. And so presumably McKay's statement, "Of course, I toldthem 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 seenMcKay explain to the commissioners something in English that presumably gets interpreted back intoOjibwe and presumably as a satisfactory answer…[Emphasis added.][530] Counsel for the Plaintiffs submitted, based on Lovisek's evidence, that McKayunderstood the Chief's demand to mean, "We must have the right to make a living fromresources." Nolin recorded McKay's response made in Ojibwe, "You will be free as by the pastfor your hunting and rice harvest," (as recorded by Nolin.) McKay then said to theCommissioners in English, "Of course, I told them so." In other words, McKay on behalf of theCommissioners in their presence and with their knowledge, responded to the demand with anunqualified assurance that they would be able to carry out their subsistence harvesting as in thepast.2011 ONSC 4801 (CanLII)[531] Chartrand agreed in cross-examination that "hypothetically," on October 3 Nolinrecorded a different discussion about traditional harvesting than the one that had taken place onOctober 1. However, despite his concession (January 25, 2010 at p. 113) that the sequence of thematters covered in Nolin's Notes almost perfectly matched the sequence of agreed-uponpromises on October 3, he maintained (January 25, 2010 at p. 125) that when the Ojibway Chiefsaid, "We must have the privilege of travelling about the country," no one provided him with ananswer because Nolin was busily recording Morris' October 1 statement (using a reference towild rice when Morris had not mentioned wild rice on October 1.) Rather than responding to theChief's demand, McKay turned to the Commissioners and said, "Of course I told them so."[532] 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 wouldbe able to use the country as they had before to make a living from harvesting, and if McKay hadresponded using the words recorded by Nolin in his Notes, "the Indians will be free as by thepast for their hunting and wild rice harvest" in Ojibwe to the Ojibway, then said to theCommissioners in English, "Of course I told them so," there would have been nothing more inEnglish for McPherson the translator to translate or for the Shorthand Reporter to record.[533] 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 happeningbetween 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 intoEnglish.