Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 126[600] When Morris said, "I did not say yesterday that the Queen had given me all power. WhatI told you was that I was sent here to represent the Queen's Government ... when you send one ofyour braves to deliver a message, he represents you; that is how I stand with the Queen'sgovernment," he was tying his authority back to the Queen's Government. Chartrand initiallysuggested that Morris' references to the Council at Ottawa were related to treaty implementation,not the source of the Commissioners' authority. Later Chartrand conceded in cross-examinationthat some of the matters to which Morris referred on October 3 were in relation not just toimplementation but to the source of his authority. In other words, he conceded Morris did refer tothe Queen's Government at Ottawa not only as the power that would be implementing some ofthe terms of the Treaty, but also as the power that was providing the Commissioners' power andauthority.[601] At trial by the end of his cross-examination, Chartrand had conceded that the Ojibwayhad "an underlying cognition" that they were dealing with sovereigns through variousrepresentatives in Canada (January 25, 2010.)2011 ONSC 4801 (CanLII)[602] Chartrand conceded that the most likely term used to translate the English word"Government" into Ojibwe was the Ojibwe word for "Council."[603] Von Gernet gave the following evidence on December 10, 2009 in cross-examination:Q. And I suggest to you that the whole reason for him bringing up the discussion of Council is tomake it clear that that is a body that has a role in making the rules for a treaty, and I suggest,governing the great Dominion?A. Well, he says that: "-- there is another great council that governs a great Dominion, and they holdtheir councils the same as you hold yours."And that he himself is a servant of the Queen and that he can't do his own will, he must do hers. Soagain, I think it's a combination of both. He's trying to impress upon the Ojibway that they -- that theyshould not consider him to have the power to give all that they want, that he is -- his power is limitedto the Queen and her Council. Now, the analogy is not perfect. Because while the Ojibway have theequivalent of the Council, they do not have the equivalent of the Queen. …Q. …I would suggest that the fact that Morris goes out of his way to draw this analogy between thegovernment and the council suggests that he was intending to impress upon the Ojibway the idea thatthere was a government that governed the great Dominion; isn't that fair?A. I think that's what he's trying to do. He's trying to show that there is a -- I mean, as you say, hecould have limited it to just simply saying, you know, the Queen ... is the one that's limited mypowers. But, you know, a better analogy is to say, well, it's not just the Queen but the Queen'scouncillors, because a council is something that the Ojibway can identify with, much more readily interms of their own day-to-day practice and in their own political system.[Emphasis added.][604] On December 10, 2009, Von Gernet said that by the end of the negotiations the Ojibwayunderstood that the Council to which Morris referred was in Ottawa, at pp. 154-155:Q. And I suggest to you at this point in time the Ojibway have, on a number of occasions, been madeaware of the fact that that's a government in Ottawa, correct?A. Yes.Q. And that that's the government that's come to treat with them, correct?A. Well, their understanding would have been that the -- they're treating with the Queen through herrepresentatives --…