Hearing Set for Residential Development Near Native Burial Sites

A long-simmering dispute on the Bruce Peninsula over residential development on private property in the vicinity of native burial sites is the subject of a lengthy hearing set to begin this coming Tuesday before the Ontario government’s new Environmental Review Tribunal.

At issue specifically is the Niagara Escarpment Commission’s refusal last fall to approve development permits for two lots of record in a provincially approved subdivision. That was despite a staff report recommending approval, and despite the fact the NEC two years earlier permitted development on two other lots in the same subdivision. The people whose applications were denied appealed.

But there are broader issues, like the implications for the current state of relations between the aboriginal and non-aboriginal communities in this area. Or the lack of them. As I’ve said before in this space, it seems to me the two communities have grown apart in recent years. Over almost three decades I’ve watched the Saugeen Ojibwa, whose traditional territories once included all of what’s now called Grey-Bruce, awaken to a renewed sense of their national identity. Any non-aboriginal person who has lived in this area for any length of time, or wants to, should make the effort to learn something about the history of the area and in particular what happened to its First Nation people; how they were tricked, coerced and deceived into signing treaties that surrendered all but a few small corners of their territories in return for promises that weren’t kept. There is anger in the aboriginal community here, and no doubt in many other parts of Ontario and Canada, for good reason. The wonder is there hasn’t been more violence. But, for all its faults – and its historic treatment of aboriginal people is one of the big ones – Canada is a country that provides people with opportunities for peaceful resolution of problems, through the courts and the democratic process. Court decisions in recent years have done much to advance aboriginal rights. Here in Grey-Bruce the Saugeen Ojibwa recovered their priority right to a commercial fishery in Lake Huron and Georgian Bay waters as a result of a 1993 provincial court decision that stood. A multi-billion-dollar Saugeen Ojibwa land-claim lawsuit filed more than 10 years ago is still working its way through the court system. How it will ever get settled remains to be seen. But anyone who thinks there are simple answers to aboriginal issues is seriously mistaken. The idea of “one law” for everyone, for example, is dangerous nonsense. First Nations have always had a special relationship with the Crown, especially when they signed treaties in good faith and trust that their interests and rights would be protected.

But, that being said, I have to add that I have often been disheartened by the extent to which aboriginal people often seem to regard non-aboriginal people, especially those of us of European descent, as lesser beings. There’s a word for that; it’s called racism; and despite everything I’ve just said above about the historic injustices aboriginal people have suffered, it can’t be justified. It’s also dangerous.

I think it’s high time everyone, aboriginal and non-aboriginal, started treating each other with more respect and understanding. We may have vastly different cultural backgrounds, but we’re all human beings in every sense of what that means. And one thing it means is that, to one degree or another, we can fall in love, with people, and with beautiful places.

I still well remember the day 25 years ago when I approached a traveler who, finding he had time to spare, had pulled off the highway on an impulse and found his way to Lion’s Head Harbour. I saw him standing and staring out across the water at the spectacular Niagara Escarpment cliffs at Gun Point. Mr. Newman said he was born and raised in Yorkshire, England where famous “white cliffs” rise above the English Channel. The scene reminded him so much of home that there and then he changed his travel plans. He had intended to take the ferry across to Manitoulin Island and the North Shore of Lake Huron. “But I’m not going any farther. I’m staying here,” he told me.

Lots of people have had the same sort of heartfelt – some might say spiritual – reaction after discovering one of the many special places along the peninsula’s storied shoreline.

I don’t doubt for a moment that experience is thousands of years old. Nor do I doubt it applies to the property that’s the focus of the upcoming appeal hearing.

I’ve been there. I know exactly where it is. In fact, I’ll reveal here and now that I may even have what some might consider a conflict of interest. When I first moved to the Lion’s Head area 27 years ago I did a little grunt work for the landowner/developer trying hard to get his subdivision plan approved, and jumping through all the known hoops in the process. I haven’t been there for quite a while. But it was then, and I imagine it still is, a magical place.

Lots of other people also know exactly where it is, because they’re members of the Chippewas of Nawash First Nation community (one of the two Saugeen Ojibwa First Nations), or they live not too far away, or they’re local municipal officials, or because they noticed the relatively little press coverage the situation has received in recent years; I mentioned it myself in an earlier column.

But this time I’m going to avoid revealing the exact location and the names of the individuals involved, including the landowner/developer. Why? I’m not sure, to tell you the truth. But I think it might have something to do with wanting to leave the place and the spirits that inhabit it in peace for a while. They’ve been through enough, both the long-ago as well as the recently deceased. They need a break. The issues that trouble the living have moved elsewhere to be sorted out, or not. So be it.

The essential background facts pertaining to the appeal hearing are as follows:

In 1981 a 12-hectare (30 acre), 25-lot subdivision was approved by the Ontario Ministry of Municipal Affairs and Housing. From 1989 to 2004 archaeological investigations discovered evidence of aboriginal occupation dating back to the 17th Century. Four burial sites were discovered in one area of the subdivision.

In 1999 the provincial Registrar of Cemeteries issued a Cemeteries Declaration for a portion of the subdivision including part of two lots and a portion of a roadway.

The NEC approved development permits for lots 1 and 2 in December 2003, with the condition that additional archaeological assessment be done on lots 1 to 8, and lot 21.

In June 2004 the Ontario Ministry of Culture, based on additional archaeological assessment, issued clearances for lots 1 to 8 and 21, and a drainage ditch between lots 8 and 9.

In December 2004 and May 2005 applications for development permits for lots 8 and 4 were submitted to the NEC. It deferred decisions on those and any future applications “pending a more comprehensive resolution of the issues on these lands,” said a recent pre-hearing report. The NEC wrote the federal and provincial ministers responsible for Aboriginal Affairs and encouraged the governments to “reopen dialogue into the unresolved issues at this site with a view to settlement.”

A previous effort to come up with a mediated negotiated settlement several years ago failed after the municipality refused to sign an agreement that would have seen the property become Chippewas of Nawash First Nation territory. In August 2005 the province said the issues had to be settled through existing processes, including the Niagara Escarpment Plan. There is no indication in the pre-hearing report of the federal reaction, if any, to the NEC letter.

Last October, the NEC refused the most recent applications for development permits, after hearing objections from Chippewas of Nawash representatives. Among other things they said, “residential development in such close proximity to the known burial and ceremonial sites was inconsistent with the great spiritual importance of the site,” according to the pre-hearing report.

The applicants appealed the decision.

The hearing is set to begin May 2, 2006, with a total of seven days set aside for the various participants to present evidence. They include the NEC, the landowner-appellants, the Chippewas of Nawash, the municipality, the Coalition on the Niagara Escarpment (CONE), and other interested individuals. The Nawash witness list is long and includes Chief Paul Nadjiwan, former Chief Ralph Akiwenzie, University of Toronto law professor and Nawash band member Darlene Johnston, archaeologist Bill Fitzgerald and several elders.

Originally published in The Sun Times in 2006.


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