First Nations

New Hope Bay park signs end up saying a lot about Saugeen Ojibway Nation’s land and water claim lawsuit

/ findinghopeness / 2 Comments

It may have been August 30 when I first saw the new ‘park boundary’ and ‘no hunting’ signs posted on both sides of Cathedral Drive north of my property at the end of the ‘No Exit’ gravel road. I’d been away on a long trip and took a couple of days to rest up at home before going up that way with the tractor.

My first thought was the signs might have something to do with a possible out-of-court, negotiated settlement of the Saugeen Ojibway Nation (SON) land and water claim lawsuit. I’ve long believed a settlement of the multi-billion-dollar SON lawsuit would have to include a lot of land as well money in compensation, and that Hope Ness is bound to be part of it. The Hope Bay Forest Provincial Park (Nature Reserve) includes 353 hectares (873 acres). Other Ontario Crown land in the Hope Bay-Hope Ness area is of similar size and includes a large swath of Georgian Bay-Hope Bay shoreline.

My first thought was surely too much of a leap I initially told myself; but still, it was worth some research and a few phone calls.

And that’s how I found out, yes, there have been tentative talks at least; or, as a reliable source told me only, “there have been a few meetings.”

I was also surprised to discover that a three-judge, Ontario Court of Appeal panel has finished their deliberations regarding SON’s appeal of the initial Superior Court trial decisions two years ago. The appeal court decisions were published on the courts website August 30. That’s two weeks ago as I write this, and as far as I know, the news media has not picked up on and covered this important news.

The non-indigenous, local community has especially been kept in the dark over the years as the lawsuit has been slowly making its way through the legal process. Meanwhile, little has been done to prepare people for a day, and a negotiated settlement, that may be coming soon.

Late last year, a newsletter sent out to members of the two SON First Nations under the heading ‘Negotiations’ spoke of an intention to reach out to the two main defendants in the lawsuit.

“While we are pursuing our appeals, there may be a chance to start negotiations with Canada and Ontario to settle our claims.” In the past little progress was made, “but now we have a finding from the court in the treaty claim that the Crown behaved dishonourably towards us … We are reaching out to Canada and Ontario to invite them to begin those negotiations,” the newsletter said.

The appeal court also dealt with issues raised by municipal defendants who have not already settled with SON, including the Northern Bruce Peninsula and Southern Bruce Peninsula.

For example, the court has decided local municipalities are not responsible for financial damages SON may stand to get in connection with former Saugeen land now taken up by municipal roads. Under a treaty signed in 1854 surrendered land was to be surveyed, including into 100-acre farm lots, and the money put into trust funds for the benefit of the Saugeen first nations. But no provision was made for land that became road allowances under municipal jurisdiction.

The Ontario appeal court again denied the larger Aboriginal Title to the waters around the peninsula, as far as the U.S. border in Lake Huron; but in an unusual move the court has invited SON to seek title to a smaller area. That would most likely be an area known to the Saugeen Ojibway in the Anishinaabe language as Nochemowenaing, translated to English as ‘Place of Healing.’ That location is on the Georgian Bay side of the peninsula in the Hope Bay area.

A view of Hope Bay from the lookout in the Hope Bay Forest Provincial Park (Nature Reserve). Dow Chemical would have built a large shipping facility on the shore below.

Justice Wendy Matheson, who presided over the initial Ontario Superior Court trial, did not decide in favor of the larger Aboriginal Title; but she was much impressed by the cultural and spiritual evidence presented by elders from both First Nations that make up the Saugeen Ojibway Nation. They are the Chippewas of Nawash First Nation, with their home community beside Hope Bay, and the Saugeen First Nation beside the Saugeen River on the Lake Huron side.

“Joanne Keeshig testified about the role Anishinaabe women carry out with respect to water,” Justice Matheson wrote in her decision. “Like Karl Keeshig, she is a Third Degree Midewin and a member of a Midewin Lodge. She testified about the resurgence of the Midewin Lodge beginning in the 1970s. I found her evidence about her faith deserving of significant weight.

“Joanne Keeshig’s evidence also spoke of the Creator,” Justice Matheson wrote. “The Creator gave Anishinaabe women the primary responsibility to care for water. Anishinaabe women perform water ceremonies. In Joanne Keeshig’s view, if the Anishinaabe did not conduct water ceremonies, they would become disconnected from their purpose in life.

“Nochemowenaing was a very significant place from the Indigenous perspective, both as of 1763 and in more modern times. The waters at Nochemowenaing were and are believed to have healing qualities.”

The Court of Appeal judges took serious note of Justice Matheson’s written comments about Nochemowenaing, and also her inability to go further without a submission from SON during the trial. However, the court noted “SON asks this court to remit this alternative claim to the trial judge ‘for a judgment, after further evidence and submissions, on the question of Aboriginal title to a portion of the Aboriginal title area claimed.’”

The appeal judges agreed. “SON should not have to begin a new proceeding to determine this issue. The trial judge in this case is uniquely qualified to assess this request because of her long familiarity with the evidence and issues. The trial judge can devise a procedure that is fair to both sides, including further pleadings, discovery, and hearings that she deems necessary” to meet the legal test based on precedence.

Meanwhile, “the concerns of some of the parties and interveners about Aboriginal title to submerged lands and the public right of navigation cannot be addressed until the extent of Aboriginal title, if any, is determined.”

The multi-billion-dollar lawsuit was first filed in Ontario Superior Court in 1994. Initially, it focused on issues related to the way SON’s ancestors were pressured into signing a treaty that surrendered most of their remaining territory on the then Saugeen, now Bruce, Peninsula. Saugeen leaders were given one day to comply, or not, while Crown agents said they could no longer keep non-Indigenous squatters out of the territory. Just 18 years year earlier other Crown negotiators had promised to protect the integrity of the Saugeen territory on the peninsula if the ancestors signed a first treaty in 1836 that surrendered an even larger area.

The claim for Aboriginal Title to the waters around the peninsula was added later to the lawsuit.

After years of ‘discovery’ the Superior Court trial began April 2019. It ended July 2021 with Justice Matheson’s 200-page decision partially in favor of SON, in that it agreed the ‘Honour of the Crown’ had been brought into disrepute by the behavior of Crown representatives at the treaty negotiations; but Justice Matheson did not find in favor of the Aboriginal Title claim, and she also did not agree the Crown had a fiduciary (trust) duty that had been violated. SON appealed those decisions to the Ontario Court of Appeal.

Here is a link to that court’s decision: https://coadecisions.ontariocourts.ca/coa/coa/en/item/21689/index.do#_Toc144139795

Readers might want to jump to Part VI near the end of the document under the heading ‘Dispositions’ before tackling the rest.

And what of those signs that sent me on my quest for information?

The Hope Bay Forest Provincial Park, designated a Nature Reserve, now comes under the management of the Ontario Environment Ministry. It was previously the Ministry of Natural Resources responsibility. The park was created in 1985.

The Ontario government acquired about 2,000 acres in the former farm homestead community of Hope Ness after Dow Chemical decided not to go ahead with a plan to develop a huge quarry to mine the limestone bedrock for its magnesium content. In the mid-1960s Dow offered Hope Ness farmers $5,000 for their 100-acre farms. At the time “there was a farm on every hundred acres,” I was told when I came to live in Hope Ness in the spring of 1979. I bought one of the few houses that survived the Dow takeover because the farmer who owned it at the time refused the Dow offer. Most went for it, though it caused much bitterness in some families. Houses and barns were demolished, and families had to move.

The house and barns on the property where I live now on Cathedral Drive were saved because Dow had its on-site testing and research base here. And the Butchart family that had owned the farm were able to stay. They continued to live here after the farm became Ontario Crown land. Wilma Butchart (Tucker) and her son Cliff went to the Natural Resources office in Owen Sound to see if there was any way they could get title back to the farm. Eventually, they were able to get ownership of 5.9 acres and the house and barn and other outbuildings. The Hope Bay Forest Provincial Park/Nature Reserve now surrounds that piece of private property. What does the future hold? I wonder.

Earlier this week I contacted an Environment Ministry spokesperson to ask about the new signs. I was asked to email my questions. Had the park/nature reserve been expanded? Not that long ago in my eight years at the Cathedral Drive farm, I had seen deer hunters in the area recently posted with the new signs. Why now, and why the new signs? And I asked, is it because talks are underway for a possible, negotiated settlement of the SON lawsuit?

The answer came back: there has been no change, and no expansion of the nature reserve. It has always been there since the park was established. Hunting is allowed on other no-park provincial Crown land farther north.

As for talks about a possible negotiated settlement of the SON lawsuit currently underway? No answer. No mention at all.

Part of the Hope Bay Forest Provincial Park (Nature Reserve) on the east side of Cathedral Drive in Hope Ness. Formerly a farm site before the Dow takeover. Note the remnants of the farm fences amid the wild apple trees and other revegetation.

The Saugeen land claim and the ‘path of peace’

/ findinghopeness / 4 Comments

The out-of-court settlement just reached by Bruce County and the Saugeen Ojibway Nation (SON) is the latest indication SON’s long-standing land claim is heading toward similar, land-transfer settlements with the remaining defendants.

Those defendants include the governments of Canada and Ontario, and the three local municipalities on the peninsula that were always most at risk. That’s not only because the ownership of local roads has been at issue since the claim, as a lawsuit, was first filed in an Ontario court; but also because of the large tracts of Crown land on the peninsula held either by the province and/or the federal government, including two national parks. As a result, those settlements when they happen, will more than likely be much bigger.

The Bruce County/SON settlement involves 306 acres (124 hectares) of county forest in two tracts on the peninsula. The full details of the settlement are confidential.

Grey County and SON reached a similar settlement in September 2020 that included the transfer of 275 acres of county forest northwest of Owen Sound in Georgian Bluffs.

SON and Saugeen Shores, a local municipality in Bruce County that includes the towns of Southampton and Port Elgin, announced this past September they had reached a settlement. It included the transfer of four acres (1.7 hectares) of municipal property, financial compensation, and municipal support for housing development.

SON is comprised of two, closely-related First Nations, the Chippewas of Nawash, on the Georgian Bay side of the Peninsula north of Wiarton, and the Saugeen First Nation, on the Lake Huron side, south of Sauble Beach. In 1994 they combined to file a lawsuit in the Ontario Superior Court claiming multi-billion-dollar damages for alleged improprieties committed by Crown before and during negotiations that led to the signing of Treaty 72 in 1854. Under that treaty, SON’s ancestors, under pressure from Crown negotiators, including threats from one, surrendered most of what was then called, the Saugeen Peninsula. They were left with several, relatively small areas of land and hunting grounds on the upper peninsula.

The Grotto, in the Bruce Peninsula National Park

The surrendered land was surveyed into 100-acre farm lots, to be sold, and the money put into trust funds for the benefit of the Saugeen/Nawash people. But, for one thing, no provisions were made in that regard for newly-surveyed road and shore allowances and the land they took up.

The roots of the Treaty 72 claim go back to a treaty signed in 1836, when SON ancestors occupied a much larger area, as far south as present-day Goderich, east beyond present-day Wasaga Beach, and north to the tip of the peninsula. But that territory was being overrun by non-Indigenous squatters. Crown officials said they were unable to keep the squatters out. But they promised, if the Saugeen surrendered the larger, southern part of their territory, they would keep squatters out of the peninsula “forever.”

But, just 18 years later, Crown officials, were again looking for a further surrender of Saugeen land on the peninsula, and saying, yet again, they weren’t able to keep squatters out. One in particular, T.G. Anderson, went so far as to threaten the Saugeen that if they didn’t surrender the peninsula, the Crown would act unilaterally.

The SON lawsuit claimed Crown officials had thus brought the honor of the Crown into disrepute, and also breached the Crown’s Fiduciary (trust) Duty owed to First Nation people. The Supreme Court of Canada, in previous judgements, has recognized both as violations requiring compensation.

The Saugeen were, and still are, a fishing people active on the waters of Lake Huron and Georgian Bay on either side of the peninsula. In 2004 SON added an additional claim to the lawsuit, calling for a declaration of Aboriginal Title to the land under those waters. That would have been a first-such declaration in Canada.

The trial into the SON claims began under Justice Wendy Matheson on April 23, 2019, and ended October 23 of the same year. In her 211-page judgement released July 7, 2021, Justice Matheson did not find in favor of the claim for Aboriginal Title. She also found SON’s claim that the Crown’s Fiduciary Duty had been breached did not meet the requirements based on Supreme Court precedent.

SON and its lawyers have appealed those judgements.

Justice Matheson did however find the Crown had failed to keep the 1836 Treaty’s promise to keep squatters off the peninsula “forever.” She also found T.G. Anderson’s threats in preliminary negotiations for the 1854 treaty that summer breached the Crown’s honor. “He said that the government had the power to act as it pleased and that he would recommend that ’the whole, excepting the parts marked on the map in red and blue, be surveyed and sold for the good of yourselves and children,’” Justice Matheson said in her judgement.

“To do so would have been contrary to Crown policy, which, at least from the time of the Royal Proclamation of 1763, had required obtaining the agreement of the Indigenous group.”

Laurence Oliphant, the newly appointed Superintendent General of Indian Affairs for Britain’s Canadian colony, travelled from Quebec to take over the 1854 treaty negotiations. After arriving in Guelph, he and a member of the Upper Canada Legislature travelled by horse and buggy to Owen Sound, and from there to the Saugeen Village near the mouth of the Saugeen River. On the way, Oliphant saw the squatter and associated problems first-hand and recorded them in his final report after the treaty was signed. He spoke of “the tide of immigration, the search for ‘wild lands’, gangs of squatters, bloodshed and threats by squatters to settle on Indian Lands in defiance of the government,'” Justice Matheson wrote in her judgement.

During the trial, SON presented evidence to back up the claim that Oliphant lied when, in treaty negotiations, he told the assembled Saugeen/Nawash Chiefs “that squatters were, even then, locating themselves without permission” on the Peninsula. He went spoke of “the extreme difficulty, if not impossibility, of preventing such unauthorised intrusion,” as Justice Matheson later noted.

After Oliphant’s arrival, the treaty negotiations did not begin in earnest until the late afternoon of October, 13, 1854 because the Chiefs were out on their fishing grounds. The discussions went on into the night, until the treaty was signed about 1 a.m.

The next day, back in Owen Sound, Oliphant issued a public notice warning that squatters were not allowed on the peninsula land just surrendered in Treaty 72, thus making it Crown land. He wrote to the sheriff of Grey County, informing him of the surrender and requesting his assistance in “summarily ejecting” squatters. And, finally, Oliphant also wrote to surveyor Charles Rankin, asking him to do everything he could to keep the sheriff informed and help remove squatters.

However, Justice Matheson, did not agree Oliphant lied during the treaty negotiations and, thus, did not breach the honor of the Crown like Anderson. SON has also appealed that decision.

Since it was first filed filed in 1994 the SON lawsuit has claimed damages totalling $90 billion, an amount often cited in news media reports. In legal parlance that is known as a “placeholder,” John Bainbridge, a lawyer with land claim experience, wrote in the Bruce Peninsula Press in August, 2019. “Any litigant who fails to put in a figure for compensation in their Statement of Claim will get zero dollars if they win the lawsuit. If the SON establish that they have a valid claim, a negotiation will begin to determine an accurate figure for compensation that will probably fall far short of $90 billion,” Bainbridge wrote. He noted “the Nunavut Land Claims Agreement is one of the biggest so far in Canada and the compensation they received was $1.4 billion.”

The SON lawsuit is being handled by the Ontario court, as agreed by the participants, as a two-phase process. It’s still in the first stage, to determine the merit, to one degree or another, of the SON claims. If in favor of SON to whatever extent as determined in phase one, the second phase will consider an appropriate amount of compensation and how that will be paid.

In that event, given the fiscal restraints of government coffers, made worse by the current Covid 19 pandemic, a purely financial settlement is unlikely. The stage has been set for settlements based on land transfers, as in the three out-of-court settlements already reached.

The overall process, as it now stands, may yet take more years. Or there may be a final out-of-court settlement involving the remaining defendants sooner, possibly in 2022. A lot depends on motivation of the two senior defendants, the federal and Ontario governments.

In the spirit of full disclosure, I note here that the province has about 2,000 acres (809 hectares) of Crown land in Hope Ness, just north of Hope Bay on the peninsula. My home and property are surrounded on three sides by it, including the Hope Bay Nature Reserve. That provincial Crown land is a prime candidate for inclusion in a potential Ontario/SON settlement.

Am I worried about that, for my sake, and the sake of my family? Not really. Despite the dishonourable way they were treated, over and over again, since before 1836, the Saugeen/Nawash people chose the path of peace in the courts of their historic oppressor to seek justice. That was, and remains a huge expression of hopeful trust in the current legal processes of the Crown and Canada, as well as the inherent justice of their cause.

And that is a thought worth taking into consideration as everyone on the peninsula waits, and thinks, about how the claim will, or should be, settled.

Sauble Beach and the challenge of Reconciliation

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Sauble Beach is a major summer tourist destination in Ontario, Canada’s most populous province. It stretches for 11 kilometres along the Lake Huron’s eastern shoreline south of the Sauble River.

The tourism economy has stimulated the growth of a resort and year-round community of the same name bigger than some towns in the area of southern Ontario often referred to as Grey-Bruce, after the two counties it includes. Much of the community of Sauble Beach is in the Town of South Bruce Peninsula.

Municipal officials are planning to excavate a portion of sand dunes and expand the parking area along the west side of Lakeshore Blvd. beside and running parallel to the beach. They regard it as a relatively small, road improvement project aimed at making the parking situation safer.

They might have foreseen the extent to which the project would raise concerns from environmentalist. So, for that reason alone, municipal staff and council appear to have fallen into a trap of their own making. They should have known better by now. This week the project was put on hold likely until the spring after an environmental law group threatened to get a court injunction if the project went ahead.

But — and not to downplay the importance of mother nature — there is an even bigger underlying issue: who owns, or in the parlance of governance, who really has jurisdiction over the north section of the beach still being managed by the municipality?

That issue was deserving of more public attention because it is reaching a critical legal point in a lengthy court action.

Indeed, the Saugeen First Nation, which has long included the southern half of Sauble Beach in its territory, regards the outcome as a foregone conclusion: “The lands in question are part of Saugeen First Nation, and while that is not accepted by the South Bruce Peninsula Town Council, it is simply fact. Saugeen and the Government of Canada agree on this and will be taking the Town to court to settle,” Saugeen First Nation Chief Lester Anoquot said this week in a joint public statement issued by the Saugeen First Nation and the Saugeen Ojibway Nation (SON) Environment Office.

Canada is going through an ongoing period of ‘truth and reconciliation’ with First Nation, or Aboriginal, people who live within the country’s boundaries. Between 2004 and 2010, the Supreme Court of Canada ruled in connection with a series of cases that the Crown had a ‘Duty to Consult’ where First Nation constitutional or treaty rights stood to be adversely affected.

Canada is a sovereign country, but still technically a constitutional monarchy under the British Crown. Senior Canadian national and provincial governments are regarded as Crown representatives with a responsibility to uphold the ‘honour’ of the Crown regarding the Duty to Consult.

The details of delegating that legal requirement to municipalities and other ‘third parties’ is still a work in progress, though some local municipalities have already implemented such a policy, including Bruce County, which includes the Town of South Bruce Peninsula.

The Saugeen First Nation has claimed ownership of the north half of Sauble Beach for 30 years. The claim maintains the north-south boundary line of the First Nation reserve was mistakenly drawn after the land was surveyed following the signing of the 1854 treaty involving the Bruce, formerly Saugeen, Peninsula. At the time, Canada was still a British colony.

In August, 2014, Canadian government officials told a packed public meeting at the Sauble Beach Community Centre that the federal government supported the Saugeen claim. They proposed a negotiated settlement that would give the First Nation ownership of the entire beach, but with a co-management agreement with the non-Aboriginal community. That elicited an angry, defiant response from the mostly non-Aboriginal crowd and the idea was soon abandoned. The incumbent town council took a lot of public heat in Sauble Beach and was voted out of office in that fall’s municipal election.

In August, 2019 the Saugeen First Nation brought a motion before Ontario Superior Court for a ‘summary judgement’ regarding its Sauble Beach claim.

Motions for summary judgment are brought when one side believes its case is overwhelmingly strong. But if it fails, a regular trial process, as advocated for by South Bruce Peninsula since 2015, would still be left to resolve the dispute.

The First Nation is supported in that action by the Canadian government. The Town of South Bruce Peninsula opposes the motion, and is supported by the Ontario government, South Bruce Peninsula mayor, Janice Jackson, said in an interview.

SON and the Saugeen First Nation strongly maintain it should be consulted by the Town regarding the Lakeshore Blvd. project before any work is done. Municipal and Saugeen representatives met on-site in late November and early December after the First Nation raised concerns about the lack of consultation and offered a “reasonable consultation process” proposal, the First Nation and SON said in the Dec. 8, 2020 joint statement.

That followed the results of a special town council meeting Dec. 7 when council voted to carry on with the project, without consulting with the First Nation. In an interview the town’s mayor, Janice Jackson, said there was no informal agreement with the First Nation for consultation before that vote. “It was always going to be up to council,” she said.

On her Mayor’s Facebook page following the council decision, Jackson spoke of the town’s actions to gain approval from other agencies before there was any contact with the First Nation: “After lengthy collaboration with the Ministry of Environment, Conservation and Parks (MECP) and the Grey Sauble Conservation Authority, we were given the green light to move forward. We didn’t expect the Saugeen Ojibway Nation (SON) to demand consultation, as we have never previously consulted them on roadside work on Lakeshore Boulevard,” Jackson said in the Dec. 8 Facebook post.

Jackson said the First Nations have “cited the land claim as the reason we must consult.” She added, “our legal team strongly advised us to carry on with this project as we have no legal obligation to consult and that doing so would be precedent-setting and potentially cause harm to our land claim litigation.”

“We proposed a reasonable process to work towards consent on this project,” Chief Anoquot said, “and, without even reviewing the consultation plan, the town has unanimously decided to go ahead without our consent, without any consultation and without an opportunity for our staff to analyze the information and make informed recommendations that would resolve the issues at hand (parking and safety) and minimize to the greatest extend possible, any impacts to the environment,”

In all the circumstances, including long past, and recent history, the town should have consulted with its First Nation neighbor in a respectful, good-neighbour manner. It could have been done ‘without prejudice,’ a legal term that could have prevented the consultation from being used against the town in the ongoing litigation.

I am confident the Saugeen First Nation leadership would have honored the spirit of such wording, no matter what the lawyers might say.

And where was the Ontario government regarding its obligation to honor its Duty to Consult, and/or advise the municipality?

The Lakeshore Road Blvd project is not just small-scale, road-maintenance, not when such important, underlying issues affecting the peaceful future of the country are at stake. Every possible gesture of reconciliation is precious.

Imagine the difference it could make.

We must learn how to live, and love, together.

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She’s looking right at you with that questioning look, deep into your heart and mind. What will you say and, more importantly, do in reply?

It’s one thing to talk reconciliation, between Indigenous people and other Canadians; it’s another thing to make it happen. We’re being reminded of that lately on an almost daily basis as many in the country celebrate this brave, and relatively new experiment in multicultural living called Canada. Continue reading →

A good year to speak and do truth

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150th

I admit my initial reaction to the criticism heaped on Canada’s Governor-General David Johnston for referring to Indigenous people as “immigrants” in a CBC-radio interview was that he had walked into a thorny patch of political correctness.

But a moment of reflection soon set that knee-jerk reaction aside as I realized the absurdity of what the Governor-General had said on the recent the weekly episode of The House:

“We’re a country based on immigration, going right back to our, quote, Indigenous people, unquote, who were immigrants as well, 10, 12, 14,000 years ago.” Continue reading →