Keewatin v. Minister of Natural Resources

Part 9. Credibility of the Experts 139[664] In cross examination, he conceded that as an ethno-historian he was not giving legalopinions and that at root, questions of jurisdiction are "purely legal" matters about which he hasno expertise. He also said that he recognized that Canada continued to have jurisdiction overIndians in Ontario even after Canada lost the Boundary Dispute, but he did not appear to relatethat concession to the meaning of the "taking up" provision or the reference to the Dominion inthe Harvesting Clause (Chartrand, January 22, 2010 at p. 18)[665] In my view, Chartrand's lack of Constitutional and legal expertise explains why heinitially did not question, for example, that after the 1874 Provisional Agreement was signed, all(exclusive) jurisdiction would be either in Ontario or Canada, depending on the result of theBoundary Dispute.[666] Chartrand repeatedly took the position that if something was not mentioned in thedocuments, it did not happen (January 21, 2010 at p. 23.)2011 ONSC 4801 (CanLII)[667] Earlier in his evidence during his examination in chief, Chartrand had not hesitated tointerpret Euro-Canadian legal documents or to ascribe thoughts to Morris. However, he refrainedrepeatedly from so doing during cross-examination. One example occurred during his crossexaminationon January 22, 2010 at pp. 10-11Q. So I'm going to suggest that actually makes our difficulty when we get to Treaty 3 a bit moreintense, because here it suggests that there was actually a choice made to insert a specific reference tothe Dominion Government, correct?A. We're now getting into the mind of Alexander Morris.Q. Well, with the greatest of respect --A. So it's --Q. -- if ever your opinion has involved trying to interpret what was in the minds of thecommissioners and the government -- I mean on this particular point what you give an opinion aboutis what was the intention of the commissioners and the government. That's a question of mental state.So we're into mental states, right?A. To have some idea as to whether there was a choice, I would be on more solid footing to put forthan opinion on the matter if we had a document that we can clearly attribute as being a precursor draftof the Treaty 3 document in which -- in which we see this decision being -- that specific decisionbeing made. …[668] In my findings of fact with respect to the identity of the Treaty parties, I have concludedthat Chartrand failed to give significant weight to the prior dealings of the Ojibway withrepresentatives of Canada, including Dawson and Pither. He said on January 21, 2010 at pp. 122-3, "Knowing that the Route went through their territory under the direction of the Government ofCanada is one thing but there is simply no evidence that the question was… a matter of concernto the Ojibway."[669] Since he had not seen any references to the Boundary Dispute in the Treaty documents,Chartrand concluded "the two phenomena evolved like ships passing in the night" (January 21,2010 at p. 131.) Again, he had simply assumed after Ontario won the Boundary Dispute it wouldhave "exclusive jurisdiction," without considering that Canada might have intersectingjurisdiction under s. 91(24) and that Morris might have considered a loss of the BoundaryDispute in mentioning Canada in the Harvesting Clause.