Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 123Q. 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 talkingabout 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.[585] Chartrand conceded in cross-examination on January 19, 2010 that the TreatyCommissioners understood they had been appointed by the federal government and were takingdirection from the Department of Indian Affairs. They understood that under the Constitution,the Dominion Government had powers and duties distinct from the provincial governments. TheDominion Government was responsible for making treaties, for the general welfare of theIndians and for paying the costs of fulfilling the Treaty promises out of the Dominion treasury.[586] Saywell said (April 6, 2009, p. 52) that while the Commissioners appreciated Canada hadan undivided Crown, they understood it had divided governments. It was important for thepolitical players to know what governments had the power to deal with which issues. They knewthat particular governments were responsible to fulfill and pay for particular commitments. Itwas very important to identify the government responsible for honouring each commitment.2011 ONSC 4801 (CanLII)[587] 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 practicalmatter it was in the Governor General, advised by the Committee of the Privy Council, thatexercised 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 tothe federal government and not to any provincial government. (Saywell, April 6, 2009 at pp.250-254; Chartrand read-ins, Ex. 33, tab 2.)[588] Counsel for the Plaintiffs challenged Chartrand's approach of counting the number ofMorris' references to the Queen, and looking at the "preponderance" of references. He submittedit is necessary to look at the timing of Morris' references to the Queen. While Morris initiallybelieved tying his authority to the Queen would assist Canada (given the positive perception theOjibway had of the Queen flowing out of the Imperial policy of conciliation since theProclamation of 1763), part-way through the negotiations, he realized that by doing so he wasweakening Canada's bargaining position. He realized the Ojibway believed the Queen's powerand charitableness were unlimited. If she had bestowed all her powers on him, he could givethem whatever they wanted. Therefore, he had to make it clear the Commissioners wererepresenting the Canadian government, a Government that did not have all the power andauthority of the Queen.[589] 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 atthe time that Morris did change tack during the negotiations, did distance himself from the