Keewatin v. Minister of Natural Resources

Part 8. Analysis of Historical Evidence as it Relates to the Parties' Interests 130Q. … I'm actually putting I think what's a simple question to you: Ethnohistorically, there is noevidence whatsoever that the Ojibway ever agreed that the government of Ontario could interferewith their rights?A. No, there's no specific evidence because the issue was simply not raised.Q. There's no evidence, period. Is there?A. There's no evidence that the issue was raised.I'm sorry if I'm running around in circles. But as an ethnohistorian, that's an important matter. If theOjibway had no concept of multiple governments operative in Canada and no one had bothered toexplain that to them, then we're dealing with a subject matter that the Ojibway could not have raisedat the time.Q. And could not have objected to at the time?A. Or agreed to or done anything because there was no basis for the Ojibway to be in a position todeal with the issue. And so, you know, would it have mattered to them is a question that is not anethnohistorical question at the time because there was no basis for the Ojibway, in my opinion, to bein a position to understand to attach a significance to that.[Emphasis added.][619] After he had again virtually conceded that the Ojibway knew they were dealing with aQueen's government in Canada, he opined that the issue of which government they were dealingwith was of secondary importance to the Ojibway. Chartrand's report (Ex. 60) contains thefollowing at pp. 133-4:The fact that none of the treaty negotiation records allude to Ojibway concerns regarding this matter,suggests that the identity of the party or parties responsible for administering provisions, was a matterof secondary importance to the Ojibway relative to having secure knowledge that they had negotiatedan agreement with "the Queen."[620] At another point during his evidence, Chartrand said on January 26, 2010, p. 82, what theOjibway understood about the Queen's government is at the core of the issue. Counsel forOntario conceded in argument that the Ojibway understood that they were dealing with theQueen's government. They recognized there was a government operating in Canada.2011 ONSC 4801 (CanLII)[621] Chartrand gave evidence that Morris presented the Queen's Government as a unitarybody. During the Treaty negotiations neither he nor any of the other Commissioners suggested tothe Ojibway that any Government other than the Government at Ottawa could or would have anyrole in fulfilling or administering the Treaty promises. Morris never explained what he clearlyknew, that there was an ongoing dispute between Canada and Ontario over ownership of a largeportion of the Treaty 3 lands where Harvesting Rights were being promised. When he promisedthat the Ear of the Queen's Government would always be open, he did not explain that Canadamight have trouble ensuring that all of the Queen's servants would do their duty in a propermanner. He did not explain that he could direct some but not all of the Queen's servants."Instead, he suggested that the Queen's Government would address their concerns as they arose.Chartrand's evidence of January 19, 2010:Q: So he never says, … it may turn out that some of these lands belong to this other group -- is underthe control of this other group of Queen's servants, the government of Ontario?A: Correct.Q: … when you come and talk to the Queen's government, … we won't be able to help you out …?A: No. There are no allusions to dual or distinct governments. In fact, there are no allusions toOntario specifically --…