Keewatin v. Minister of Natural Resources

Part 9. Credibility of the Experts 140[670] In contending that Morris did not consider the Boundary Dispute in drafting theHarvesting Clause, Chartrand said Morris did not mention the Boundary Dispute in his 1880book, even though the Board of Arbitrators had in 1878 already decided in Ontario's favour (i.e.,had held that Canada did not own the Disputed Territory.) Chartrand concluded that Morris'failure to mention the Boundary Dispute in his book meant that Morris was still of the view in1880 that the Disputed Territory would be found to be in Canada. His evidence contains thefollowing:January 21 at p. 132:Q. … you're saying this was written with knowledge of the outcome of the … arbitration decision,correct?A. With knowledge of the arbitration decision.Q. So by the time that … Morris writes this book, he's fully aware now that there's a good likelihoodthat the lands are going to be in Ontario, the southern lands?A. Actually, I would say the opposite. I would say that Morris continued to consider that the landswere contained within the Northwest Territories in law.2011 ONSC 4801 (CanLII)January 21 at p. 134Q. … Morris, in writing his book in full awareness of the arbitration decision [made in 1878] takesno occasion to say, oh, well, if it should turn out that this land is in Ontario, we didn't really mean thisDominion Government business in the taking up clause, does he?A. No, he doesn't.Q. He has the opportunity to make it clear then and there that there's something in the treaty that'snot quite right, and he doesn't do it, does he?A. He doesn't make any allusion to the boundary dispute.January 22 at p. 5…a totality of body of available documents regarding the making of the treaty that do not allude tothe boundary dispute, that do not refer commissioners to it as a factor to be integrated into the makingof the treaty. And the reverse, the mirror image of this is also true.…The development of the dispute between 1871 up to and including 1878 does not factor in the treatyor the making of the treaty. And it's clear that in terms of what is being primarily addressed, beingthe boundary question, it's clear that the parties are at that time subsuming the question of jurisdictionwithin the question.[Emphasis added.][671] When confronted with an inconsistency between Morris' awareness of the BoundaryDispute and his assertion that Morris assumed that the Treaty 3 lands would always be in theNorthwest Territories and thus Canada would always be the owner of the Disputed Territory,Chartrand said he was "not certain that Ontario's entire body of research was known to allparties" and later said he simply "cannot posit whether the federal government understood theexact geographical extent of Ontario's claim." (January 22, 2010 at pp. 6 and 7.)[672] Even though Chartrand agreed a plausible explanation for the mention of the Dominionin the Harvesting Clause was Canada's role in respect of treaties and its ongoing s. 91(24)responsibility under treaties to deal with grievances, he opined that Canada's s. 91(24) role andresponsibility were "subsumed" by the fact that the Commissioners understood that the landswere in the Northwest Territories and by their knowledge of Canadian responsibility for Indians.