Keewatin v. Minister of Natural Resources

Part 10. Findings of Fact Part I 172[873] I find the Commissioners were able to make the Ojibway understand that they did nothave all the Queen's power. They were representing the Government, the Council at Ottawa. TheOjibway had been dealing with Dawson as a representative of the Government of Canada on aregular basis since 1868. Dawson had met with their Grand Council repeatedly. Chartrandconceded in cross-examination (January 21, 2010, pp. 77-78) that it was very possible thatduring one of the early Council meetings, Dawson had explained the nature of his authority tooversee the Route and may very well have made a reference to the Government of the Dominionof Canada. The Ojibway understood that Canada was building the Dawson Route and thatDawson was an employee of Canada. They had been dealing with Pither as a representative ofthe federal Department of Indian Affairs since 1870. They had seen Canadian troops crossingtheir lands on their way to quell the insurrection at the Red River. There were ways in which thesense of the Government at Ottawa could be conveyed. They knew that Pither and Provencherwere employees of Canada. They knew that Canada was building the CPR. They appreciated thatthe security of the Dawson Route and the building of the CPR and its security were the mostpressing reasons for the Treaty from the perspective of the Commissioners.2011 ONSC 4801 (CanLII)[874] In short, they knew the Commissioners were from Canada. They were dealing withCanada. Canada was promising to implement and enforce the Treaty. They were content withthat.[875] From a review of the various contemporaneous records of the negotiations, it is clear thatMorris did frequently refer to the Queen at the start of the 1873 negotiations. He knew theOjibway perceived Her Majesty favourably because they believed that Indians in Britishterritories had been well treated relative to their counterparts in the United States. At thebeginning of the negotiations, Morris was clearly hoping to benefit from that positive perception.Chartrand opined that, initially, Morris was trying to achieve his negotiation goal by alluding toOjibway historic understanding that the Queen was noble, generous, kind and protective (January22, 2010 at p. 84.)[876] However, I find, just as the Manitoba Free Press correspondent noted in his report thatduring the negotiations on October 2, 1873, Morris made a deliberate decision to make it clearwhat he obviously knew, that they were dealing with and he was deriving his authority from theCanadian government.[877] I find that on October 2, 1873, Morris decided to abandon his earlier approach and optedto clarify what he had earlier said.[878] Because Morris changed tack, Chartrand's reference to the "preponderance" of referencesto the Queen does not hold water. It is necessary to look at what was said during the criticalphase of the negotiations on October 2 and 3.[879] On October 3, he repeatedly mentioned and explained not only that the Council at Ottawawould be implementing the Treaty but also that the ear of the Queen's government would alwaysbe open. The Treaty promises would be enforced.