(This update corrects an error in the naming of the two First Nations that comprise the Saugeen Ojibway Nation. It also adds some additional information regarding the status of the case.)
The original version of this blog-post was published in Finding Hope Ness on December 19, 2015. The title then was, Saugeen Ojibway land claim lawsuit may soon be settled, one way or another. At the time there were reasons to think 2018 could be the crucial year for reaching a resolution of the now-almost 25-year-long court action.
But 2018 has come and gone, with no indication to the general public that a negotiated settlement is in the works.
The Saugeen Ojibway Nation (SON) took the unusual step in 1994 of filing a lawsuit in the Ontario Superior Court of Justice to settle long-standing land claims after years frustration with the government-sanctioned process.
The lawsuit’s claims for compensation and damages are enormous: many billions of dollars. It’s obvious that, if and when this case is settled in favour of SON, in or out of court, it will involve payment of compensation and damages in the form of land.
SON includes the Saugeen First Nation and the Chippewas of Nawash First Nation, whose ancestors once inhabited a huge area as far south as present-day Goderich on the Lake Huron shoreline, as far east as the Nottawasaga River near Collingwood, and north to Tobermory. That traditional SON area includes most of present-day Bruce and Grey counties. A treaty with the Crown in 1836 greatly diminished the SON occupation of that area. But the First Nations were promised protection from further intrusion by settlers on their remaining lands on the Saugeen Peninsula, now also known as the Bruce Peninsula. However, that promise was broken, and in 1854, as a result of the controversial signing of Treaty 72, the Saugeen Nations lost control of most of their remaining territory on the peninsula. Treaty 72, and issues related to it, are the subject of the 1994 lawsuit.
The lawsuit names the Canadian and Ontario governments as defendants in the case, as well as Bruce Peninsula local municipalities, and the County of Bruce.
Very little information about the status of the lawsuit has been provided to the general public over the years. Meanwhile, the municipal defendants get closed-door, periodic updates from their lawyers.
Apparently, that approach has succeeded in keeping the topic out of the public mind: among the many questions that were asked at a Municipality of Northern Bruce Peninsula all-candidates’ meeting I attended last fall in advance of the municipal elections, no one asked about the status of the SON lawsuit. Nor did any of the candidates bring it up. I found that astonishing, given the huge socio-economic impact settlement of the lawsuit could have. Meanwhile, members of the SON First Nations appear to be better informed. I learned from a Chippewas of Nawash web site in 2015 that the lawsuits lengthy “discovery” period was largely over, leading to the possible setting of a trial date.
Following the election of a Liberal government in the fall of 2015, Prime Minister Justin Trudeau promised a new and more conciliatory approach to First Nation relations. I wondered at the time if that might have an effect on the settlement of the SON lawsuit.
It was hard to find anyone in the new government who was familiar with it. But I managed to reach the SON’s long-time, land-claim lawyer. If the newly-elected government came up with a “different attitude” toward resolving the then 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.
The federal Ministry of Indigenous and Northern Affairs has been involved in numerous Aboriginal land claims in a settlement-negotiation process that goes back to 1973.
The SON had been involved in years of such negotiations before taking the unusual step of filing a lawsuit. It claims the Crown breached its “fiduciary,” or trust obligations as set out in the 1854 treaty.
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.
Full disclosure here: I own and live on property on the Bruce (Saugeen) Peninsula surrounded by provincially-owned Crown land. Most of that land was previously bought by settlers in the years after Treaty 72 came into effect, including my property.
The SON lawsuit raises other “equitable,” or fairness issues, regarding the circumstances under which the treaty was signed. Foremost among them is the broken promise of 1836.
Prime Minister Trudeau promised First Nations his newly-elected Liberal government would “renew” the country’s relations with them, and that nothing was a higher priority.
He 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.”
“History has shown 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 in early December, 2015.
I predicted there would be a negotiated settlement of the SON land-claim lawsuit before or during 2018. It didn’t happen, but not because the Saugeen Ojibway First Nations weren’t interested. They were.
In August of 2018 I learned the case had progressed to a point where it was ready for a trial date to be set, or a negotiated settlement. I also learned that the Saugeen Ojibway were interested in discussing a negotiated settlement, and had so informed the federal and Ontario governments..
“We are waiting to see if the other governments are interested in entering a negotiation process,” SON’s lawyer, Roger Townshend, told me last August.
Another source with knowledge of the situation thought there could be “an announcement” within “two or three months.”
But spokespersons for the federal, Trudeau government, and the then newly-elected Progressive Conservative government of Ontario had remarkably similar negative comments to my queries about any possible negotiated settlement.
“We prefer to resolve land claim issues through negotiation rather than litigation,” said an Ontario Ministry of Indigenous Affairs spokesperson.
“While the Government of Canada respects the decision of the Saugeen Ojibway Nation to pursue their claims through the courts, Canada believes that the best way to address outstanding issues and achieve reconciliation with Indigenous people is through negotiation and dialogue,” said a federal spokesperson.
In other words, no, to a negotiated settlement of the SON lawsuit.
Where does it stand now? Has a trial date been set? Surely, the general public has a right to know that much at least.
As I mentioned above, members the two First Nations that make up the Saugeen Ojibway Nation appear to be better informed. For example, a community dinner meeting to which members of the Saugeen First Nation are invited, is set for the evening of February 14 at the James Mason Community Centre, beginning at 5 pm. A member of the law firm representing the SON is to present an update on the case. “Come hear the facts and discuss next steps,” says the on-line community notice of the meeting.
It also notes a court date for the case has been set for April 23.