Saugeen Ojibway land claim lawsuit may soon be settled, one way or another

A land-claim lawsuit with potentially major implications for the Bruce Peninsula in particular and the Grey-Bruce area in general is moving slowly towards a trial date “perhaps in 2018,” a lawyer working on the case has told me.

But if Prime Minister Justin Trudeau and his newly-elected Liberal government come up with a “different attitude” toward resolving the 21-year-old lawsuit, “we’ll certainly take that into account,” Roger Townshend said in a telephone interview.

He preferred not to speculate about the possibility that “different attitude” might lead to an offer to negotiate a settlement rather than have the case proceed to trial. He also declined to say if that was indeed something he and his Saugeen Ojibway clients were hoping might happen.

Townshend, who was coincidentally at the Saugeen First Nation offices when he returned my call, noted the federal Justice department has said it is reviewing all the litigation it is involved in; and that no doubt includes the Saugeen Ojibway matter.

The newly-named federal Ministry of Indigenous and Northern Affairs has been involved in numerous Aboriginal land claims in a settlement process that goes back to 1973. Many claims have been settled, but many are still in process across the country.

In this area, the Saugeen First Nation and Chippewas of Nawash First Nation are jointly called the Saugeen Ojibway. After years of negotiations aimed at settling issues stemming from 1836 and 1854 treaties, they took the unusual step in 1994 of filing a lawsuit in the Ontario Superior Court of Justice. It claims the Crown breached its “fiduciary,” or trust obligations as set out in the 1854, Treaty 72, involving the “surrender” of most of the now-former Saugeen Ojibway lands on the Bruce Peninsula, formerly known as the Saugeen Peninsula.

Under the terms of that treaty the surrendered land was to be sold by the Crown and the money put in trust funds for the benefit of the two First Nations.

The lawsuit does not seek to have the treaty quashed, nor does it seek to nullify the sale of land to private owners that took place after 1854. But it does seek compensation for unsold land, including thousands of hectares of road and shore allowances, and other Crown land that was never sold.

Full disclosure here: I own and live on property on the Bruce Peninsula that is surrounded by provincially-owned Crown land. So far as I know most of it used to be privately owned.

The Saugeen Ojibway lawsuit raises other “equitable,” or fairness issues, regarding the circumstances under which the treaty was signed.

The lawsuit claims a whopping $90 Billion in compensation and damages. It’s obvious that, if and when this case is settled in favour of the Saugeen Ojibway, in or out of court, it will involve the payment of compensation in the form of land.

The lawsuit names the Canadian and Ontario governments as defendants in the case, as well as Bruce Peninsula municipalities, and the County of Bruce.

Very little information about the status of this lawsuit has been made public in recent years by all sides. But it is known the municipal defendants get periodic updates from their lawyers.

Prime Minister Trudeau has promised First Nation people who live in Canada his newly-elected Liberal government will “renew” the country’s relations with them. He has said “no relationship is more important” to him. I think he means it.

He has sent all his newly-appointed Ministers of the various federal departments “mandate” letters outlining what he wants them to focus their efforts on as “top priorities.”

In his letter to Carolynn Bennett, Minister of Indigenous and Northern Affairs, Trudeau said, “I expect you to re-engage in a renewed nation-to-nation process with Indigenous Peoples to make real progress on the issues most important to First Nations, the Métis Nation, and Inuit communities – issues like housing, employment, health and mental health care, community safety and policing, child welfare, and education.”

There is no specific mention of land claims in the “top priorities” mentioned in more itemized form. But Trudeau does call on Bennett to undertake “a review of laws, policies, and operational practices” to ensure the government is meeting its constitutional and human rights obligations to indigenous people.

“History has shown that that taking an adversarial approach is not only ineffective – it can be profoundly damaging. Nowhere is this more obvious than in the government’s relationship with First Nations,” Trudeau told the annual meeting of the Assembly of First Nations earlier this month.

It will take time, of course, for the new government to get up to speed on all the files piled up on its overloaded agenda plate. (By the way, the fate of Ontario Power Generation’s still-proposed Deep Geological Repository for low and intermediate radioactive nuclear waste is also up in the air, so to speak, for now.)

But I think we’ll more than likely see the federal and provincial governments make an offer to negotiate a settlement to the Saugeen Ojibway lawsuit before the case goes to trial. That is, before 2018.

Originally published in The Sun Times in 2015.

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