Keewatin v. Minister of Natural Resources

Part 9. Credibility of the Experts 143effect, trading a horse for the use of a horse. I have found the Robinson and Old Crossingrepresentations and circumstances may have informed the Treaty 3 Ojibway understanding of thegeneral implications of treaty-making.[687] Von Gernet seemed palpably reluctant to express any opinion that might be at odds withOntario's overall position in this litigation. For example, he disagreed, "as a general statement,"that local governments were peopled by men whose interests, especially concerning lands, wereusually in conflict with those of the First Nations. He would only agree on December 2, 2009 atp. 21 that the statement "does hold some truth, but not as a generalization."[688] He "somewhat" disagreed with Lovisek's statement that the Ojibway were a hunting andtrapping people, saying it was "unfair to characterize them as being primarily hunter gatherers oreven to emphasize that part of their subsistence." (Von Gernet, December 2, 2009 at p. 30.)[689] Von Gernet opined that the Ojibway believed they were dealing not with Canada but withthe Queen. While he virtually conceded that the Ojibway understood that both the Dominion ofCanada and the Province of Ontario existed in Canada, he opined that that understanding was notrelevant or important to them. He maintained they were not concerned about "jurisdictionalissues," despite their insistence on probing the extent of the authority of the TreatyCommissioners on October 2, 1873. For reasons outlined elsewhere, I have not accepted that theOjibway were unconcerned about jurisdictional issues.2011 ONSC 4801 (CanLII)[690] With respect to the Ojibway understanding of selling lands and willingness to do so, VonGernet relied on a statement he attributed to Chief Blackstone in a letter in English dated August30, 1872 written on Blackstone's behalf by Antoine Tremblay containing the following:[w]e have been willing and still are to treat upon fair, reasonable terms and dispose of our interest orrights to lands between the height of land and Manitoba …'[i]nstead of three ($3) dollars per head,'we wish and require that we should be paid twenty ($20) per head yearly forever … If theGovernment consent to our … request we will surrender everything and give up all rights to the landsexcept that we shall have to have a Reserve for ourselves, which we will select …[691] Blackstone could not speak English. Dawson challenged portions of that letter because hefelt that they were defamatory. He believed that Tremblay, a tavern owner, had a motive todefame him because of his known opposition to taverns. Dawson asked an officer of the PublicWorks Department to meet with Blackstone to probe whether he had actually made thecomments about Dawson contained in the letter. Blackstone said that various passages aboutDawson in the letter did not accurately represent his views. Nevertheless, despite that history,Von Gernet relied heavily on other portions of the same letter, suggesting to this Court thatBlackstone's disavowal of some parts of the letter actually bolstered the credibility of the parts ofthe letter he had not specifically disavowed. I note that Blackstone had only been asked about thetruthfulness of the portions of the letter relating to Dawson.[692] I found Von Gernet's assertion that he considered the unredacted portions of Blackstone'sletter to be even more credible than they would have been if the redacted portions had not beenchallenged, unconvincing to say the least. The whole letter is patently suspect in my view. Thetruth of the redacted portions had been specifically questioned because they related specifically