Keewatin v. Minister of Natural Resources

Part 9. Credibility of the Experts 138[660] I have already referred to Nolin's note written on October 3 in response to a Chief'sdemand that they must have the privilege of travelling through the country. Chartrand ignoredthe Nolin note in interpreting the Harvesting Clause (January 21, 2010 at p. 40) and assumed thatthe Ojibway accepted Morris' proposal made on October 1 limiting their Harvesting Rights untilthe lands were wanted. He refused to acknowledge that Nolin's note made on October 3 recordedan October 3 discussion about Harvesting Rights. (January 26, 2010 at pp.7-10.) Chartrandinterpreted the Chief's demand literally, i.e., he took the English translation at its face eventhough McKay and Nolin both seem to have understood the Chief's demand to relate to beingable to continue harvesting on the seasonal round. He opined that the Chief's demand that "theIndians must have the privilege of travelling through the country" was literally related totravelling and did not, as Lovisek suggested, relate to a right to harvest, to continue the Ojibwaytraditional way of life/traditional harvesting. (January 26, 2010 at pp. 7-10.) He conceded thattravelling was understood to involve harvesting but refused to acknowledge that Nolin's note onOctober 3 related to a discussion about Harvesting Rights that took place on October 3, 1873(January 26, 2010 at pp. 7-10.) He opined that the most plausible explanation for Nolin's entry onOctober 3 was Nolin's sudden recollection of Morris' October 1 statement that they could huntand fish on ceded lands until the lands were wanted. He said referring back to the October 1statement was preferable because it required him to "make fewer assumptions" (January 25, 2010at p. 138) than the alternative explanation. He said a reference to hunting and wild riceharvesting that omitted fishing was "ethno-historically problematic" although he wasn't troubledthat Nolin had referenced wild rice harvesting and Morris had not mentioned it on October 1. Healso referred to the fact that it was inconsistent with Morris' statement on October 1, withoutsufficiently considering that Morris may have changed his position after October 1 (January 25,2010 at pp. 141-2.)2011 ONSC 4801 (CanLII)[661] I found Chartrand's hypothesis that Nolin's note on October 3 was not a note of what wassaid on October 3 but was Nolin's sudden attempt (coincidentally at exactly the time when thediscussion about travelling about the country was occurring) to recall what Morris had said twodays earlier, to be implausible [but helpful if accepted in supporting Ontario's position that theNolin note did not record a promise of perpetual Harvesting Rights made on October 3 thatsuperseded Morris' earlier, more limited promise on October 1, 1873.][662] Chartrand, having earlier conceded that Morris was aware of the content of Nolin's note,later waffled on the point.[663] Initially, Chartrand seems to have accepted as a given that Ontario's ownership of landswould give it exclusive rights. There are numerous passages in his main report to that effect.Chartrand opined in chief that when the 1874 Provisional Agreement was signed, Canada andOntario understood that the determination of Ontario's boundaries would resolve which level ofgovernment would have jurisdiction to "take up" the Treaty 3 lands under the Treaty; "resolvingthe location of the boundary would simultaneously determine who had jurisdiction over whatlands." He appears not to have considered the effect of valid intersecting of jurisdictions. Heseemed to assume that this case was all about ownership rights. Like Ontario, he assumed that"taking up" was an ownership right, or was related strictly to use by the owner, not authorizationby Canada of uses incompatible with Harvesting Rights.