Keewatin v. Minister of Natural Resources

Part 9. Credibility of the Experts 145[700] Generally speaking, where the evidence of Von Gernet differed from Lovisek's evidence,I have preferred Lovisek's. I have also tended to prefer Chartrand's evidence to Von Gernet's.The Historical & Political WitnessesMilloy[701] In my view, Milloy is/was a very knowledgeable and reliable historical witness onmatters within his area of expertise. He holds a doctorate from the University of Oxfordspecifically with respect to the development of British Imperial Policy for Canadian Indiansbetween the 1750s and 1860s, including the policy of conciliation and civilization after 1830. Igenerally accept his evidence, including on the development of Indian policy, the reasons for thefederal government's assumption of s. 91(24) jurisdiction over Indians and Indian lands andrelevant to Morris' mention of "taking up by the Dominion of Canada" in the Treaty 3 HarvestingClause.2011 ONSC 4801 (CanLII)[702] However, I found his evidence on the Boundary Dispute to be of little assistance, as hehad not studied it in detail and, like Von Gernet and Chartrand, was without legal expertise.[703] I have preferred Milloy's evidence to Von Gernet's with respect to the placement ofs. 91(24), the transfer of jurisdiction over Indians to Ontario culminating in 1860 and Ontario'sjurisdiction over Indians from 1860 onwards. On Euro-Canadian historical matters, I haveconcluded that Milloy has greater depth and historical expertise than Von Gernet, whose primaryexpertise is with respect to First Nations.[704] Similarly, I have accepted Milloy's evidence on Canada's priorities in 1873, including hisevidence that Canada considered it more important to assimilate the West than to assimilate theTreaty 3 Ojibway.[705] Counsel for Ontario also made much of Milloy's answers in cross-examination aboutCanada's/Department of Indian Affairs' lack of involvement in administering off-reserve lands inthe Disputed Territory after 1894 and in Keewatin after 1912.[706] In posing questions about federal involvement in Ontario's authorization of land uses,counsel for Ontario focused on exercises of Ontario's ownership jurisdiction and not on exercisesof Canada's s. 91(24) jurisdiction to protect Harvesting Rights. The questions ignored the realityof intersecting jurisdictions. I found those questions and Milloy's attempts to answer themunhelpful.[707] Counsel for Ontario also made much of answers given by Milloy that he was not awarewhether Canada had been involved when Ontario had patented and licensed land in Ontario.Under ss. 92 and 109, apart from the Treaty, Ontario had the right to grant patents and issuelicenses. I would not have expected Canada to be involved in the licensing and patenting processunder s. 109 UNLESS s. 91(24) interests were involved, i.e., when there was a conflict orperceived conflict between Ontario's proprietary interests and Canada's s. 91(24) interests. In anyevent, by 1894 Canada had legislated away its own right/obligation to authorize or refuse to