Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 118[559] On January 22, 2010, Chartrand was referred in cross-examination to Ex. 4, Spragge'sJune 23, 1873 memo written six days after the Commission upon which the witness was relyinghad been issued:At p. 37:Q. And then we also see, subsequent to the appointment of the commission, a separaterecommendation being made by the most senior bureaucrat in the Indian administration about whoshould carry out those negotiations?At p. 39Q. So on June 16th, in the order in the Privy Council report found at page 212, we see a separatePrivy Council decision being made to reopen the Treaty 3 negotiations and setting terms for thosenegotiations, 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.2011 ONSC 4801 (CanLII)At p. 40:Q. Right. And on June 23rd, [Spragge] obviously is of the view that these negotiations are notalready in their hands. Otherwise, this recommendation would be superfluous, wouldn't it?A. The negotiations of terms.[Emphasis added.][560] While Chartrand initially resisted (January 22, 2010 at pp. 44-47), he eventuallyconceded that the Commission on which he was relying, which referred to the NorthwestTerritories, 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 myunderstanding 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 oftreaties, that Spragge, on June 23rd, is now, upon receipt of information on terms, recommending thatthe negotiations of a specific treaty be put in the hands of that Board, then I completely agree.[Emphasis added.][561] Counsel for the Plaintiffs submitted that it is not clear that the Commission actuallyappointing the Treaty 3 Commissioners in 1873 mentioned the Northwest Territories.[562] Chartrand also conceded on January 22, 2010 at pp. 60-62 that Spragge's proposal forterms of treaties to be negotiated in the Northwest Territories, contained in his memorandumdated 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 therecommendations 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 Treaty3, and a different set of recommendations for them -- in front of them for treaties to be negotiated inthe Northwest Territories. And they approve them both, correct?A. Yes.Q. They don't approve the same terms for those two sets of treaties?