Keewatin v. Minister of Natural Resources

Part 9. Credibility of the Experts 142[681] Von Gernet said he had "never been troubled" by Morris' failure to explain that theGovernment was seeking a surrender or cession of lands. In cross-examination on December 10,2009 he said at pp. 100-101:I've seen the exact same argument and the -- your expression of puzzlement in many other cases.And I agree, it's a good point, there's no question that you're perfectly entitled to express thatpuzzlement that this is not the subject of discussion in any of these treaties. But my response hasalways been the same, and that is, if something is axiomatic, then there is no real need to discuss it.It's only negotiables that are not axiomatic.[682] He "did not find it surprising" that Morris did not expressly discuss a sale of lands or agiving up of resources at any time during the 1873 negotiations. The Commissioners did notneed to mention the implications of surrender during the negotiations because the Ojibwayalready understood, based on experience of other Aboriginal people elsewhere, that surrender/thecession of lands/opening up to settlement, etc. was the raison d'être of treaties. It is"inconceivable" that the Ojibway did not understand they were giving up their lands in somefashion or another.2011 ONSC 4801 (CanLII)[683] His evidence about the raison d'être of treaty-making was based on generalisedcircumstances I have found were largely absent in the Treaty 3 area. While "surrender of land"may have been the raison d'être for government negotiators in areas where the land was neededprimarily for development, I have found on the circumstances here that it was not theCommissioners' primary motivation. Certainly it was not a motivation for the Ojibway.[684] I do not accept his evidence in chief that the Treaty 3 Ojibway understood, by reason ofinformation transmitted via the "moccasin telegraph," that Treaty 3 would involve giving upresources on their lands.[685] Von Gernet attached significant weight to the Upper Canada treaties in offering hisopinion that the Ojibway already understood the implications of the Treaty, despite the fact thatthe circumstances surrounding Treaty 3 and early Upper Canada treaties were very dissimilarand despite the fact that the linkage between the cession of land and the cession of HarvestingRights had diminished by the time Treaty 3 was signed. In cross-examination, Von Gernetacknowledged the differences between the circumstances in Upper Canada and in the Treaty 3area. The former generally involved smaller parcels of land. Treaties in Upper Canada generallywere negotiated in anticipation of imminent settlement. The Aboriginal parties understood theland was about to be occupied and developed. The early Upper Canadian treaties did not includeright to harvest clauses. In the case of Treaty 3, I have found that apart from the Dawson Routearea, significant development and agricultural settlement were NOT anticipated.[686] Between the signing of the early Upper Canadian treaties and Treaty 3, the RobinsonTreaties and Old Crossing Treaties had intervened. At both negotiations, governments maderepresentations to the Aboriginal parties that may well have affected the understanding of theTreaty 3 Ojibway with respect to Harvesting Rights. During the Robinson negotiations,Commissioner Robinson represented that the Indians could retain their hunting rights and weregiving up nothing but a "nominal" title; during the Old Crossing negotiations, CommissionerRamsey represented that the Chippewa were essentially giving up nothing, as they were, in