Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 113To put it bluntly, George McPherson, who up to this point has, by all accounts, been doing a good jobin keeping up with the discussions, we have -- we have different wording between sources, but, Imean, 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 commissionersand told them "of course, I told them so".A. Well, why would McPherson not interpret in English the discussion taking place between McKayand the Ojibway?Q. Well, that's only problematic, I suggest to you, if you take the comment about travelling about thecountry to be quite literalistic, that it's only a question about walking about or snowshoeing about orcanoeing about the country. If we take the alternate hypothesis that I put to you that it's a reference tobeing 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 notgeneral 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 thereknew that … travel for these people was intimately tied up with using their lands. This was no secretto Morris or Dawson or Provencher, was it?A. No, I certainly agree with that proposition.[534] Chartrand continued to posit that on October 3, Nolin was recording a statement made byMorris two days before. Nolin did not write down any answer McKay gave because at that pointhe was "recalling a very important promise made on October 1 and this is what he was trying tojot down to the best of his ability."2011 ONSC 4801 (CanLII)[535] Chartrand maintained on January 25, 2010 that his assumption that Nolin was referring toMorris' 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 betweenMcKay and the Ojibway, and McKay and Morris… It allows us to have Nolin record a harvestingpromise for which we have two independent records indicate it was made on October 1 st …."At p. 143:A. … the hypothesis that I put forth … allows a reconstruction of the different records, and areconciliation at an explanatory level that…involves …the fewest assumptions about what transpiredbetween the parties prior to October 3 entering that specific exchange.[536] 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 atpage 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 youthen 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 howMcKay would go about referencing the harvesting clause in Treaty 3. …We're wrestling with anEnglish-language statement that is at odds with what the text of Treaty 3 says, and is at odds withavailable accounts of how Morris alluded to the harvesting promise on October 1st. …[Emphasis added.][537] Chartrand initially agreed that Morris saw Nolin's Note. He was aware of Nolin's entrythat the Indians "would be free as by the past in their hunting and wild rice harvest." He attachedthe Notes, without comment, to his Official Report dated October 14, 1873. The content of theNolin Note was not a secret to government officials (January 25, 2010 at pp 110-111).