Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 122[579] The ethno-historians disagreed about whether Morris decided during the negotiations toexplain that he was not literally representing the Queen/not literally taking his instructions fromher, but if so, why, and then how and whether he was able to make the Ojibway understand thathe was actually deriving his authority from the Government of Canada and only from theGovernment of Canada, and then, as to whether the Ojibway understood they would be relyingon Canada and only Canada to implement and enforce the Treaty promises.[580] Counsel for Ontario submitted that from the mention of Her Majesty the Queen in theTreaty text, the fact that the Treaty Commissioners at least initially represented that they wereacting on behalf of the Queen, and the preponderance of references to the Queen during thenegotiations, 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 Ojibwaywould have understood they were dealing with the Queen. (January 14, 2010 at pp. 110-111.) Heopined the Ojibway were ultimately relying on the Queen to ensure the Treaty promises werefulfilled.2011 ONSC 4801 (CanLII)[581] He submitted the Queen's Government in Canada was/is not limited to the Government ofCanada but also includes the governments of the provinces, including Ontario. The Ojibway didnot understand they were treating with the Government of Canada to the exclusion of otherQueen's governments in Canada. As an emanation of the Crown, Ontario should be considered aparty to the Treaty and be allowed to "take up" lands under the Treaty. To allow Ontario to do sowould not violate the Honour of the Crown or the spirit of the Treaty.[582] The experts all agreed that when Morris referred to the Queen and the Queen'sgovernment during the negotiations, he did not intend to refer to the Queen in her personalcapacity or any Queen's government other than the Government of Canada. His references to theQueen 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. Heknew Canada is a federal state with separate executives accountable to separate legislatures [thefederal (or Dominion) government, accountable to the federal Parliament, the provincialgovernments accountable to their respective local legislatures.] He understood that each level ofgovernment has its own distinct powers and duties, its own treasury, its own property andanswers to a distinct electorate. Morris and the other Commissioners appreciated that theGovernment of the Dominion of Canada was separate and distinct from the Government ofOntario and the Government of the United Kingdom.[583] 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 andunambiguous meaning to the Commissioners. To them, "the Queen's Government" was theDominion Government.[584] 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 Ojibwayheading 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.