Keewatin v. Minister of Natural Resources

Part 9. Credibility of the Experts 141He conceded it was beyond his expertise to say whether both were in the minds of theCommissioners (January 22, 2010 at pp 74-77.)[673] Chartrand cautioned that certain of the references in the documents, which mightotherwise lead this Court to the conclusion that the Ojibway understood that they were dealingwith the Dominion Government, should be downplayed. For example, in referring to Dawson'sletter to Langevin dated December 19, 1870 (Ex. 1, Vol. 4, tab 103), mentioning that the Chiefshad expressed themselves to be quite open to treat with the Dominion Government, hevolunteered that Dawson's statement might not have reflected an Ojibway awareness that theywould be treating with Canada but rather Dawson's assumption on the point. (January 15, 2010 atp. 27.)[674] Chartrand resisted the suggestion that Ontario had shirked its responsibilities in the past.For example, until he was taken to the pleadings in the Annuities Case [Ex. 4, p. 18], Chartrandcould not recall that Ontario had taken the position in that litigation that it was not a party toTreaty 3 (January 22, 2010 at p. 123.)2011 ONSC 4801 (CanLII)[675] It was not until he was being cross-examined on April 22, 2010 at p. 17 on his two replyreports prepared in response to Lovisek's reports, that he clarified that he considered them to beless authoritative than his main report. Until then, he had not acknowledged that their preparationhad involved less review and analysis than had his primary report.[676] At this trial Chartrand admitted during cross-examination on January 26, 2010 that he hadreviewed a copy of the Plaintiffs' argument filed in the costs motion in 2006, and had written acommentary to assist counsel for Ontario.[677] While any of these examples on its own might not have guided me to a conclusion thatChartrand's evidence was less balanced than Lovisek's, I am of the view that taken together withother examples contained here and elsewhere in these Reasons, they do support that conclusion.[678] While this is a minor consideration, it is nevertheless worth noting that unlike Lovisek,who has been retained by governments and First Nations, Chartrand has only been retained bygovernments (Ex. 59.)[679] Generally speaking, I prefer the evidence of Lovisek to that of Chartrand.Von Gernet[680] In my view, much of Von Gernet's general evidence is not particularly helpful to thisCourt in deciding the issues here, as it was not related specifically to the circumstances of theTreaty 3 Ojibway in 1873. For example, his evidence that reserves were intended to facilitate ashift from hunting and gathering mode to an agricultural mode was inapplicable here. If it wereintended to suggest that the Commissioners expected these Ojibway to forsake hunting and relyon agriculture after the Treaty was signed, I reject it.