Keewatin v. Minister of Natural Resources

Part 9. Credibility of the Experts 144to Dawson. The truth of the portions unrelated to Dawson had not been specifically questioned.Their truthfulness had not been confirmed by Blackstone.[693] I have already referred to Von Gernet's comments that representations to the effect theywould be able to continue traditional harvesting, made by government officials in the course ofattempts to convince the Robinson and Old Crossing Indians to enter into treaties, were notrelevant because the Ojibway would not have believed them.[694] At least in Canada, the Honour of the Crown requires government representatives to betruthful when they make representations to the First Nations. Courts are to assume thatgovernments intend to keep their promises. Aboriginal parties are entitled to rely on promisesmade.[695] Von Gernet conceded in cross-examination that Morris was aware of the BoundaryDispute in 1873. However, he opined that Morris' awareness of the Boundary Dispute did notenter into the treaty-making process/was "not a live issue" for Morris during the Treatynegotiations. While I accept that he reviewed Morris' writings and speeches and found noreference to the Boundary Dispute, I question how his ethno-historical expertise qualified him togive such an opinion. [Chartrand did concede that Morris' reactions to the existence of theBoundary Dispute involved legal and Constitutional considerations about which he had noparticular expertise.] I found Von Gernet's evidence regarding Morris' consideration of theBoundary Dispute to be of little assistance given his lack of legal and Constitutional expertise.2011 ONSC 4801 (CanLII)[696] Similarly, Von Gernet's expertise on Canada West's jurisdiction over Indians after 1860,based as it was on a simple review of a number of historical documents, was less extensive,informed and nuanced than Milloy's.[697] His opinion with respect to the Old Crossing Treaty, based as it was on a simple reviewof a few documents and not undertaken as part of a comprehensive comparative contextualanalysis, was less helpful to me than Lovisek's on that Treaty.[698] I found unpersuasive Von Gernet's conclusion that the Ojibway had knowledge of thescope of the Treaty 3 land cession, based as it was on the fact that the Shorthand Reporter had ametes and bounds description before the Treaty was signed. Whether or not the Manitoban was"the organ" of the Manitoba government (and by extension subject to direction from Morris, assubmitted by the Plaintiffs), Morris and the Shorthand Reporter travelled to the North WestAngle from Winnipeg together, and waited for several days before the negotiations began. I amof the view that the Reporter's access to the metes and bounds description used by theCommissioners in the Treaty does not prove that the Ojibway had similar access, or would haveunderstood a metes and bounds description even if they had.[699] In short, Von Gernet had/has no particular expertise on the Treaty 3 Ojibway or theircircumstances in 1873. While I accept that he is a qualified expert in other aspects ofanthropology, for the reasons given above, I do not accept the submission of counsel for Ontariothat his opinion is "more balanced" than Lovisek's.