Keewatin v. Minister of Natural Resources

Part 9. Credibility of the Experts 132[629] Focusing on Euro-Canadian concepts of ownership and not on Ojibway concepts ofexclusive control before the Treaty and sharing of use after, counsel for Ontario assumed thatafter the Treaty was signed, the Ojibway would have objected to any and all use by Euro-Canadians of Treaty 3 lands. Counsel for Ontario made much of the Ojibway failure to object toevery Euro-Canadian use and of Canada's failure to involve itself in every authorization of landuse within Ontario by Ontario.[630] Lovisek, focusing on Ojibway concepts of resource sharing, said she would not haveexpected the Ojibway to have objected to every post-Treaty Euro-Canadian land use. The usesmutually anticipated by the Commissioners and Ojibway in the Treaty 3 area were expected tobe compatible. Euro-Canadian uses were not expected to interfere significantly with OjibwayHarvesting Rights. The Ojibway understood that after the Treaty was signed, they would nolonger have exclusive use of their lands and resources. The Ojibway agreed to share as long assuch sharing did not significantly interfere with their traditional way of making a living. Inassessing the impact of Euro-Canadian land on their harvesting, they would consider the benefitsthey were obtaining from the Euro-Canadian activity as well as the detriments. (Lovisek, tab 7,pp 77-78.)2011 ONSC 4801 (CanLII)[631] Given the disconnect between the underlying focus and assumptions of counsel forOntario and of Lovisek's (and as I later learned, of Chartrand's) concept of Ojibwayunderstanding of what was happening and what was being promised, I realized that Lovisek'sdifficulty in answering questions posed in cross-examination was understandable. She was beingasked to fit square pegs into round holes. Once I was able to set aside my own reflexive reactionsbased on Euro-Canadian concepts of land ownership and to focus instead on Ojibway concepts,her answers were comprehensible and crucial to understanding the transaction from the Ojibwayperspective. To them, the Treaty was about continuing their way of life. Their focus was onresources to collectively harvest, not on Euro-Canadian preoccupations.[632] In argument on April 27, 2010, counsel for Ontario criticized Lovisek's evidence onseveral bases. He submitted that her evidence that the Ojibway had no European-type conceptsof alienation of individually owned land was inconsistent with her evidence that the Ojibway"did understand that some of the land along the right of way was being transferred to theCrown." I note that she qualified that statement as follows: not as a transfer so much as anallowance for occupancy. I also note that Chartrand, who was called to give evidence by Ontario,conceded the Ojibway had no European-type concepts of purchase and sale of land byindividuals. He commented that when they referred to sale of land during the Palliser and Hindexpeditions, the Ojibway were engaging to some extent in cross-cultural communication, butemphasizing they were refusing to engage in similar practices.[633] Counsel for Ontario submitted that Lovisek was not an objective witness. Hecharacterized portions of her evidence as "expert advocacy." For instance, he referred to theportion of her evidence in chief where she cited Walmark to support her opinion that theOjibway perceived Commissioner Simpson as an HBC trader, not as a representative of theDominion Government and to the portion of the cross-examination where he had pointed out to