Keewatin v. Minister of Natural Resources

Part 9. Credibility of the Experts 137Canada, I questioned whether his reluctance to acknowledge communications between the Treaty3 Ojibway and the Ojibway in Manitoba from whom the Treaty 3 Ojibway might have gleanedthe existence of another level of government in Canada was the basis for his otherwiseunexplained sensitivity.[652] In a different context, Chartrand gave evidence about another possible source of Ojibwayknowledge of another level of government in Canada, albeit in trying to explain why it was notnecessary for Morris to be more fulsome in his explanations during the negotiations as to whatthe Ojibway were being asked to give up.[653] Chartrand posited that it was not necessary because McKay may have earlier providedthe needed explanations.[654] Morris had sent McKay, a member of the Manitoba Legislature, to the Treaty 3 area topromote the Treaty three times in the period immediately leading up to the 1873 negotiations. Hewas present throughout the 1873 negotiations, attended at least part of the Council meeting heldovernight on October 2, 1873 and at Morris' request was at the Council meeting that preceded therecommencement of the negotiations on the morning of October 3. Chartrand explained thatMcKay, a Red River Metis, by reason of his background and Euro-Canadian education was ableto act as a cultural intermediary and may have explained concepts, options, practicalconsequences, benefits and detriments of a Treaty to the Ojibway. It was McKay whom Morristasked to explain the Treaty "in Indian" just before it was signed.2011 ONSC 4801 (CanLII)[655] Chartrand agreed that McKay would have been able to explain the differences betweenCanada and the provinces and their respective jurisdictions. He would have understood theconcept of a province. He had experience with government structures. He was aware of theevents that had transpired at the Red River leading ultimately to the formation of the Province ofManitoba.[656] McKay had been present at the 1871 negotiations of Treaties 1 and 2 where Ex. 31,containing the note that "provinces cannot change the Treaty" was apparently prepared andperhaps discussed.[657] Therefore there was some evidence that McKay could have explained to the Ojibway thatthere was more than one level of Queen's government in Canada and the implications arisingtherefrom.[658] After Morris's statement on October 1 that the Ojibway would be able to hunt and fish onthe lands being ceded until the lands were wanted, Chartrand said the Ojibway didn't questionMorris on October 2 or during the remainder of the 1873 negotiations about "taking up" of land.In the absence of questions, Morris had had no reason to further explain the provision. Chartrandsuggested it was not necessary for the Commissioners to explain the taking up clause during thenegotiations because the Ojibway already understood that lands could be "taken up."[659] Chartrand took the position that the only reference during the negotiations to the "takingup" clause was on October 1.