Keewatin v. Minister of Natural Resources

Part 9. Credibility of the Experts 133her that Walmark had actually written that the Ojibway associated Simpson with the HBC, notthe Crown.[634] Lovisek gave evidence that since the Ojibway had a politically ranked society, theyunderstood and appreciated that there were larger (higher ranked) and smaller (lower ranked)Euro- Canadian powers. For example, they viewed the HBC as a "small power." The point shewas making in that evidence was that the Ojibway wanted to deal with an entity with sufficientpower and authority to make and fulfill the Treaty promises.[635] Chartrand conceded in cross-examination on January 25, 2010 that the Ojibway conceptof power was very complex:At pp. 31-32:Q. But even for the Ojibway, there is a component to this of expressing the idea that within Euro-Canadian society there are greater powers and lesser powers?A. Yes. And -- but, you know, again, it's very important to understand that …our culture thinks ofpower as being a thing, that is, it's objective, it's fixed. To the Ojibway, everything is situational. SoI agree with you to the extent that we have here a chief making a relational allusion to power.And so, you know, again, in terms of this ranking, it's important to understand that fundamentally,power is a situational variable and that, in fact, can very rarely be properly known with certainty.Q. And …in this case what's important about the situation is that when it came time to talk abouttheir rights and their future and the making of a treaty, they expected to deal with a power that wasgreat enough to address those matters?A. I think I've made that point a number of times.2011 ONSC 4801 (CanLII)At p. 37:Q. And, again, what I'm going to suggest to you is what we see coming out of this is a sense that theOjibway understood that within Euro-Canadian society, you didn't just deal with anybody, but thatthere were different ranks of officials for different purposes?A. In general terms, yes.[636] Given that Lovisek's comment was focused on Ojibway perceptions of ranking, onSimpson's relatively lowly status as an HBC trader and not on the particular emanation of theCrown that was the source of Simpson's authority, and given that Simpson was acting under aCommission issued by the Dominion Government, in my view the criticism that Lovisek wasbeing an expert advocate in incorrectly citing Walmark's opinion was unduly harsh.[637] Counsel for Ontario criticized Lovisek for emphasizing the importance of statementsmade by Dawson (Ex. 1, Vol. 14, tab 630) post-Treaty during the 1880s and 1890s about hisrecollections of the Treaty negotiations, including representations made by the Commissioners tothe Ojibway that they would forever have the right to fish, to induce them to enter into theTreaty, without also mentioning Dawson's pre-Treaty comments about Ojibway awareness thatthe Dawson Route could have negative impacts on their hunting and fishing. I do not accept thatcriticism as valid. I note that in her evidence, Lovisek did mention that the Ojibway didunderstand that there could be negative impacts upon their fishing in the vicinity of the DawsonRoute. She said that is why they asked for inclusion of their sturgeon fishing areas in theirreserves. Before 1873, Dawson did recommend that Ojibway concerns could be ameliorated,inter alia by incorporating their sturgeon fishing areas into reserves to be set aside for their