land claims

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.

Parks Canada says national park name changes about reconciliation

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The decisions to start referring to the Bruce Peninsula as the Saugeen Peninsula, and to soon begin formal public consultations possibly leading to a name change for the Bruce Peninsula National Park itself, are not connected to a judgement coming soon in the Saugeen Ojibway land-claim lawsuit, Parks Canada says.

Instead, the name changes are Parks Canada’s ongoing effort to support the reconciliation of Canada and the Indigenous people who live within the country’s boundaries. “The identities and cultures of Indigenous peoples are rooted in land, and honouring connections to place is an important part of Parks Canada’s commitment to reconciliation,” the agency says in a statement responding to written questions from this writer.

“‘Wedokododwin’ (the Anishinaabe word for ‘working together’) begins with small steps. In this spirit Parks Canada team members use the Anishinaabe word ‘Saugeen’ referring to the Saugeen (Bruce) Peninsula informally and regularly,” the statement says. “A recent letter to partners signaled the intent to extend the use of this language more broadly,” it adds.

That is a reference to an email recently sent to operational ‘partners’ by John Haselmeyer, superintendent of the Bruce Peninsula and Fathom Five Marine National Parks on the upper peninsula in the Tobermory area.

“Going forward, we will be changing how we refer to the Bruce Peninsula.  Instead, we will be referring to the peninsula where our two parks are located as the ‘Saugeen Peninsula,’” Haselmeyer said in the email, a copy of which was obtained by this writer. The email also referred to a public consultation process leading to a possible name change for the Bruce Peninsula National Park itself.

When contacted last week for further clarification and comment, Haselmeyer said he was not authorized to speak to the media and requested written questions. Several questions were submitted last week. Parks Canada’s statement and written answers were received a week later.

In the public interest an initial article was written, based on the contents of the email. The article, published last week under the heading, ‘Name change in the works for national park,’ also noted the coincidental timing of the national park-related name changes, and the current status of the long-standing Saugeen Ojibway Nation’s (SON) land-claim lawsuit. A judgement is imminent, following the conclusion of a trial last fall.

In response to a written question about a possible connection to the SON lawsuit and its possible outcome, Parks Canada offered the following answer:

“How Parks Canada refers to the broader peninsula area, and the consultation that will take place to engage Canadians in a discussion about the related name of the park itself are not connected to any litigation.”

The SON lawsuit was filed in Ontario Superior Court of Justice in 1994. The trial began in April, 2019, and ended with final arguments last fall. It is now up to the presiding judge, Justice Wendy Matheson, to make a ruling for or against SON’s claims.

The case centers around Treaty 72, signed in 1854, resulting in the two First Nations that now comprise SON surrendering most of what remained of their territory on the Saugeen Peninsula, as it was then named. SON claims the Crown failed, through the actions of its representatives, in its fiduciary (trust) duty to protect the interests of the First Nations, as promised in an earlier 1836 treaty.

If the judgement is in favor of SON, the next phase of the case in court would be a determination of the amount and method of compensation owed to the two First Nations, the Chippewas of Nawash and the Saugeen First Nation.

The Parks Canada statement has more to say about the possible renaming of the Bruce Peninsula National Park: “There is strong recognition of the ‘Bruce Peninsula’ park’s existing name, including public interest among residents, the business community, and visitors to the region. Parks Canada will undertake public consultations before making any formal changes to its name.”

The statement adds upcoming management planning for the two national parks on the upper peninsula will include formal public consultations, “and there will be many opportunities for Canadians, partners, and stakeholders to provide feedback and guidance over the coming months. This process will include important considerations around names and languages.”

 One of the written questions submitted to Parks Canada asked for a definition of ‘partners’ and examples of who they are. Parks Canada’s answer follows, slightly edited:

“The Agency works with partners in local communities to develop new and sustainable ways to manage visitation in popular areas, ecological protection, and regional tourism issues. In this setting, partners refer to the businesses, groups or organizations that Parks Canada works with in the region, examples of which will be the Saugeen Ojibway Nation, government organizations such as the Municipality of Northern Bruce Peninsula, Bruce County Tourism, or RTO7; local tourism providers such as tour boat and dive boat companies; and non-government organizations such as the Bruce Peninsula Biosphere Association or the St-Edmund’s Property Owners Association. Many of these have a seat on the park’s Park Advisory Committee.

Another written question asked why a notice about the name changes wasn’t sent to the general public, considering the process has effectively already begun. Following is Parks Canada’s answer:

“A new management plan for Bruce Peninsula National Park and Fathom Five National Marine Park is in development. The plan guides management decisions and actions for the parks, and serves as a key accountability document to the public. The process to meet legal and policy obligations while reflecting the interests and input of Canadians unfolds over many months and creates several opportunities for Canadians, partners and stakeholders to provide feedback, guidance and to weigh in on proposed direction, themes and changes. Strategic in nature, management plans outline a long-term vision and include measurable objectives and targets to achieve results.

“This public planning and consultation about the future of the park is also a great time to speak about the name of the park itself. Parks Canada is launching the public engagement process in the near future. Parks Canada hopes that many Canadians will choose to become involved and provide their thoughts about the future of the park.”

The reader can decide if that answers the question.

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Name change in the works for Bruce Peninsula National Park

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The Grotto, one of the most popular destinations at the Bruce Peninsula National Park

Calling it a “small, but important change,” Parks Canada has changed the name of the Bruce Peninsula to the Saugeen Peninsula in its ongoing communications with operational “partners” who were recently sent an email message about the new policy.

For the time being the name of the Bruce Peninsula National Park remains the same; but Parks Canada intends to begin a formal public consultation process leading to a possible change of name recognizing the park’s presence in the traditional territory of the Saugeen Ojibway Nation

“As valued partners of Parks Canada, I am writing this morning to let you know about a small, but important, change at Bruce Peninsula National Park and Fathom Five National Marine Park. Going forward, we will be changing how we refer to the Bruce Peninsula.  Instead, we will be referring to the peninsula where our two parks are located as the “Saugeen Peninsula,” Bruce Peninsula and Fathom Five parks superintendent, John Haselmeyer said in the recent email.

Additional information about a lengthy public consultation process beginning soon to change the name of the national park comes near the end of the email message.

“Please note that the name of the park remains ‘Bruce Peninsula National Park.’ A name change for the park itself requires a longer process of public consultation, which we will be undertaking in tandem with our upcoming management planning consultations,” the message says.

These developments come as an Ontario court judgement regarding the merits of the Saugeen Ojibway Nation’s (SON) long-standing, land-claim lawsuit is imminent.

In 1994 SON took the unusual step of filing the claim as a lawsuit in Ontario Superior Court. After 25 years of ‘discovery’ the trial finally began in April, 2019. It ended last fall, with closing arguments. It is now up to Justice Wendy Matheson, the judge who presided over the trial, to decide for or against the SON multi-billion-dollar claim for damages. Key elements in the SON case largely focus on the circumstances surrounding a treaty signed in 1854. Under the terms of Treaty 72 the two First Nations that comprise SON, ‘surrendered’ most of what remained of their territory on the peninsula. At the time it was called the Saugeen, or Indian, Peninsula.

That treaty followed another one signed in 1836 that surrendered the largest part of the SON territory south of the peninsula, on the promise that the Crown would protect the Saugeen Peninsula from further incursion by non-indigenous squatters. However, in 1854 the Crown’s British colonial negotiators again said they were unable to control the squatting which had continued on the peninsula. SON produced evidence during the trial that appeared to show that was a lie.

The traditional territory of the Saugeen Ojibway Nation included a large area in southern Ontario before 1836.

“SON’s claim is that this was a breach of the Crown’s fiduciary duty. What SON is seeking is a declaration the Crown breached this duty. If successful, in a later phase of this claim, SON will be looking for recognition of its ownership interests in lands on the Saugeen (Bruce) Peninsula that are still owned by Ontario or Canada or have not been bought and paid for by third parties (so, municipal roads, for example), as well as compensation,” SON’s law firm, Olthius, Kleer, Townshend LLP, says on its website where a large body of information about the case is publicly available. In contrast, the non-indigenous government defendants in the case have been publicly secretive over the years about the progress of the case.

In a phone interview peninsula national parks superintendent Haselmeyer asked this reporter to submit written questions about the timing and reasons for the name changes, including the plan to begin a formal process to change the name of the Bruce Peninsula National Park.

One of the questions asks if the timing of the changes has anything to do with the SON land-claim case, with an important judgement now imminent. And if not that, then another question asks what else prompted the changes at this time.

Another question sought more information about the ‘partners’ who received the email message. Another asked why peninsula residents weren’t also notified of the name changes, including the name of the national park. The point was made that informing ‘partners’ that a formal process to change the name of the Bruce Peninsula National Park is planned effectively started the process; and, therefore, peninsula residents should have been notified at the same time.

As of this writing the additional information from Parks Canada in answer to written questions was not yet available. There will be a follow-up story when it is.

A judgement in favor of the SON claim will lead to a second phase in the court process in which the amount and method of compensation for SON’s damage claims will be determined. Grey County — previously named as a defendant along with Bruce County and Bruce Peninsula local municipalities, as well as the federal and provincial governments — reached a settlement with SON last fall when it agreed to transfer ownership of a county forest to SON.

Based on that precedent, if the initial judgement is in favor of SON it appears likely compensation could include transfer to the two First Nations of property currently owned by government entities, including provincial and federal Crown land.

Full disclosure here: this reporter lives on a property surrounded on three sides by the Ontario Parks’ Hope Bay Nature Reserve south of Lion’s Head.

Under the sub-heading, “why are we doing this?’ the Parks Canada email explained that the Bruce Peninsula, after it ceased to be the Saugeen Peninsula was “named after James Bruce, a British colonial administrator who was Governor of Jamaica, Viceroy of India, and, from 1847 to 1854, Governor General of the Province of Canada.  James Bruce never visited the peninsula that now bears his name.

“Using the name ‘Saugeen’ better acknowledges the connection of the Saugeen Ojibway Nation to the Saugeen Peninsula. Some partner organizations in the region have already adopted this practice, the email said.

“Saugeen is the anglicized version of the Anishnaabemowin word ‘Sauking’ meaning river mouth. It is the traditional name for this peninsula, and was still in common usage well into the 1970’s.”

Big day coming soon for the Bruce, formerly Saugeen, Peninsula

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In the garden with granddaughter Jorden

(Full disclosure: I am a non-indigenous, property owner of land in an area that is liable to be affected by a court decision in favor of the Saugeen Ojibway Nation claim.)

Not that long ago a people now often referred to in Canada as ‘First Nation’ used to walk freely for ages on the 5.9 acres (2.4 hectares) of land I now call home here in Hope Ness, north of Hope Bay, on the Bruce (Formerly Saugeen) Peninsula.

They’ve been on my mind a lot, those First Nation people who trusted the British Crown enough for a time to fight and crucially help protect Canada from U.S. invasion during the war of 1812; who fought honorably for Canada and the Crown in disproportionately large numbers in two world wars; and who now continue to fight, peacefully and honorably in Canadian courts, for justice.

So, let us non-Aboriginal Canadians, locally and across Canada, first learn and think about things like that before we get all hot and bothered about the prospect of a court decision in favor of the Saugeen Ojibway Nation (SON) in their long-standing, land-and-water claim lawsuit. Because, make no mistake, they have a good case. Final arguments are done, the trial is over, and case has been adjourned as the Justice presiding over the case considers a judgment. That will surely come in 2021, and likely early at that.

Yes, a judgement in SON’s favor could be highly consequential, leading to either court-ordered compensation for 160-plus years of heart-breaking loss and injustice, or a negotiated settlement. Or it could be appealed, perhaps as far as the Supreme Court of Canada. More years could go by. Some of us, myself included, could be gone by then. But be careful what you say to your children and your grandchildren: don’t leave them with a burden of fear and anger to sort through, or not, and the bitter consequences that come from that.

The Saugeen Peninsula was named after the First Nation people whose territory it was long before the controversial signing of Treaty 72 in 1854. As a result of that treaty, most of the peninsula was ‘surrendered’ by the Saugeen First Nations in trust to the Crown and opened up for settlement by non-Aboriginal newcomers. A people whose territory just 18 years earlier had encompassed an area of two million acres, were left with a few small reserves and hunting grounds.

Then, within a few more years, the Chippewas of Nawash First Nation were forced out of their community, called Newash, to make way for the expanding new non-Aboriginal town of Owen Sound. Another reserve at Colpoy’s Bay north of Wiarton was lost, with some people from there going to the new Nawash reserve, at Cape Croker, some going to the Chippewas of Saugeen reserve near Southampton, and others to Christian Island, near Penetanguishene on the other side of Georgian Bay.

The Chippewas of Saugeen reserve is on the Lake Huron shore, near the mouth of the Saugeen River, north to Chief’s Point at the mouth of the Sauble River. The north-south boundary of the Saugeen reserve, and thus the ownership of Sauble Beach, is currently also the subject of a land-claim before an Ontario court.

The two distinct but related First Nations, the Chippewas of Nawash, and the Chippewas of Saugeen, together call themselves the Saugeen Ojibway Nation (SON). Since the time of ‘contact’ when Europeans began to show up in this part of North America some 400 years ago, they have been called by various names, including Chippewa, Ojibway, Odawa, Pottawatomi. They identify themselves as Anishinaabe. They speak a dialect of the same language spoken by other Anishinaabe people in the Great Lakes area; and they share many cultural traditions, including a deep spiritual connection to their territorial land, and waters.

Under the Saugeen Ojibway Nation name the two First Nations have worked together for decades to successfully re-affirm their Aboriginal rights.

An Ontario Court (Provincial Division) judgement in 1993 was a landmark case. In dismissing provincial overfishing charges against two Nawash fishermen it affirmed the two First Nations’ “priority” right to fish commercially fishery in the waters around the peninsula.

In 1994, frustrated by the lack of progress in land-claim talks Canadian government offcials, SON took the momentous step, unprecedented in Canada, of filing a land-claim lawsuit in Ontario Superior Court.

That action alleges the Crown violated its Fiduciary, or trust, duty in the allegedly improper and deceitful circumstances and events leading up to, and during, the signing of Treaty 72.

Canada was still a British colony in 1854. It became a self-governing Dominion in 1867, and like many other former British colonies remains a Constitutional Monarchy to this day, with Queen Elizabeth II its formal Head of State.

The Canadian Encyclopedia describes the ‘Law of Fiduciary Obligation’ in part as “special relationships … that entail trust and confidence and require that fiduciaries act honestly, in good faith, and strictly in the best interests of the beneficiaries of such relationships

The defendants named in the SON lawsuit are the Crown, in the name of the governments of Canada and Ontario, Bruce County and four local municipalities, Northern Bruce Peninsula, South Bruce Peninsula, Saugeen Shores; and Georgian Bluffs in Grey County.

Grey County itself was previously also named as a defendant in the unique land-claim case. But the county reached a negotiated settlement with SON, announced Sept. 9, 2020 in a joint news release, by agreeing to transfer ownership to SON of a 275-acre county forest.

A key point in the case is the promise made in 1836 by Crown representatives to convince the Saugeen to sign a treaty surrendering 1.5 million acres of their territory south of the peninsula. They said the Crown could not control the encroachment of squatters into that large part of Saugeen territory. However, they promised to keep squatters out of the peninsula “forever.” But just 18 years later, during high-pressure talks leading to the signing of Treaty 72, different Crown representatives again told the Saugeen there was nothing they could do to stop squatters encroaching on the peninsula.

Yet, after the treaty was signed, at 1 a.m. the morning of Oct. 14, 1854, Laurence Oliphant, the Superintendent of Indian Affairs under then Governor-General of Canada, Lord Elgin, sent a message to Grey County Sheriff, George Schneider. It ordered him to “summarily” eject any squatters intruding on “the property of the Crown” in the newly surrendered peninsula.

In 2004 a claim for Aboriginal title to the waters surrounding SON’s traditional territory in Georgian Bay and Lake Huron was added to the lawsuit.

The case has been divided into two phases: first phase, determining the merits of the case; the second, consideration of compensation.

The lawsuit claims a total of $90 billion in damages. In legal parlance that’s 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.”

I have thought all along that compensation arising from the SON lawsuit would have to be largely in the form of territory. SON is seeking ownership interest in Crown lands, currently owned in the name of Ontario and Canada, including the Bruce Peninsula National Park.

From the beginning of the lawsuit SON has made the point that private property bought and paid for by ‘third parties’ in good faith is not at risk. Bainbridge confirmed that: “As a matter of principle no Aboriginal land claims in Canada will affect private property acquired ‘in good faith.’ All claims seek title to crown land only – either federal or provincial. This is why road allowances, Parks and the lakebed are subject to the claim.”

A current Government of Canada website page, about the federally sanctioned process for resolving First Nation claims , outlines the government policy regarding private property rights when land is involved in settling ‘Specific Claims:’ “It is important to note that Canada’s policy on specific claims protects the current ownership and rights of private land owners. Private property is not taken away from anyone to settle specific claims. Nor is anyone asked to sell their land unwillingly. If land changes hands after a settlement, this can only happen on a willing-buyer/willing-seller basis,” it says under the heading,’ An Overview of Specific Claim Settlements Involving Land.’

I note that policy is discussed as part of the in-house, claim-settlement process preferred by the government, rather than lawsuit litigation, the approach taken by SON, but discouraged by the government. Similarly, in a separate court action, the Saugeen First Nation chose litigation in its claim that the SFN reserve boundary was mistakenly draw after the 1854 treaty; and, therefore, all of the beach at Sauble Beach is rightfully reserve territory. Several private property owners were named as defendants when the lawsuit was filed in 1995. The Government of Canada was also named as a defendant, but now supports the SFN action which is still before an Ontario Superior Court. The SON lawsuit is a separate action. I contacted the federal ministry of Crown-Indigenous Relations and Northern Affairs’ media office in hopes of clarifying the government’s policy as it relates to litigation-lawsuit claims, including the SFN Sauble Beach case. But ministry officials declined to comment on that matter.

Under the terms of Treaty 72 surrendered land was to be surveyed into 100-acre farm lots, to be sold to settlers, and the money thus acquired put into trust funds for the benefit of the First Nations. But no thought was given to road allowances, given over to municipalities by the Crown without payment.

Full disclosure here: I have as much reason as any non-Aboriginal property owner on the peninsula to be interested in the outcome of the SON lawsuit:

First, I live on what’s now part of one of those original, 100-acre lots mentioned above. My copy of the original Crown patent says it was sold April 10, 1880 to John Heath for $100.

Second, I’m surrounded on all sides by the provincially owned Hope Bay Forest Nature Reserve. I’d be a fool not to think it might be included in any compensation settling the SON lawsuit. Does that worry me? Not much.

But I do have some concerns, about how an outcome of the lawsuit in favor of SON, and a subsequent compensation settlement, will be received in the non-Aboriginal community. That’s especially if people feel like they’ve been blind-sided because they’ve been left in the dark for 25 years without any information from government defendants.

Most of what is publicly known about the status of the case has come directly or indirectly from SON as they keep their people informed via online newsletters, and updates also posted on the website of the law firm, Olthuis, Kleer, Townshend LLP (OKT), handling the SON case.

Haven’t we been here before? Shouldn’t we here in the Owen Sound, Bruce Peninsula area know better by now? Shouldn’t we have been demanding more information, on the assumption there were surely some things that could be made public, so we could start thinking about what might be coming?

In that regard, I’ve been thinking a lot about Nawash fisherman who turned into my driveway one day in the summer of 2014.

He looked to be in his mid-30s. He had freshly-caught Georgian Bay whitefish in his well-used pick-up to sell. Did I want some? Yes, I said.

We chatted for a while as he wrapped up the filets. I saw he had a long scar on one side of his face, from what must have been a seriously deep, sharp cut. I hesitated for a moment, but had to ask, was he one of the young, Aboriginal men assaulted one night in the summer of 1995 in downtown Owen Sound in one of series of violent incidents that happened when some in the local, non-Aboriginal community reacted angrily to the 1993 court decision regarding SON’s right to fish commercially in local waters and the subsequent emergence of an Aboriginal fishery?

Yes, he was, he said.

I have written about him before, in a post for my blog, Finding Hope Ness. I’ll quote from it here:

“Left with that scar for the rest of his life, the result of a racist attack, it would have been understandable if he was still also carrying a lot of anger and resentment toward his attackers, and perhaps even the non-Aboriginal community whose racist spawn they were. But on the contrary, he had moved on. Life, he told me, was too precious and good to waste on that kind of spirit-destroying thing.”

About a week later I was at a packed public meeting at the Sauble Beach Community Centre. The mostly non-Aboriginal, local crowd was there to hear about an important development in the nearby Saugeen First Nation’s long-standing claim that the north section of the popular beach should rightfully be in Saugeen reserve territory, and not part of the amalgamated Town of the South Bruce Peninsula. The government of Canada was prepared to correct the mistake, giving Saugeen ownership of the entire beach, the crowd was told. They were also told the First Nation was willing to enter into a co-management agreement with the town to manage the beach as part of a negotiated settlement.

None of that went over well. The immediate and overwhelming response was outrage and disbelief at the very idea, so much so that the negotiated settlement went nowhere. The court case remains unresolved, but currently awaiting the outcome of a Saugeen motion calling for a summary judgement. Such a motion is an option provided for civil cases in Ontario when one of the parties believes there is “no genuine issue for a trial,” according to the Ministry of the Attorney-General. The onus is on that party to prove the point. The government of Canada supports the Saugeen motion. South Bruce Peninsula council opposes it and is supported by the provincial government.

I warned more than six years ago, after the Sauble Beach debacle, that there was a need to develop a better, more respectful and thoughtful way of responding to local First Nation land claims because there were more and bigger ones to come.

I was referring to the SON land-and-water claim lawsuit, now awaiting a judgement, coming to a peninsula near you, any day now.

On a hopeful note, the public statement announcing the negotiated settlement worked out between Grey County and SON last September suggest some fresh, conciliatory breezes are starting to stir:

“This settlement provides some closure to a long-standing claim, but I hope it can also be the beginning of more conversation, more understanding and a stronger relationship between Grey County, SON and the Anishinaabe people,” said Grey County Warden Paul McQueen.

“This agreement is an important step forward in a long history of our communities working towards righting a wrong,” said Chief Lester Anoquot of Chippewas of Saugeen First Nation. “We are happy and hopeful that we are taking this step with our neighbours towards building a better understanding and a stronger future alongside one another.”

In 2018, well before the trial began in April, 2019, the Saugeen Ojibway Nation indicated a willingness to begin talks leading to a comprehensive, negotiated settlement. But the governments of Canada and Ontario refused. They both separately cited SON’s original 1994 decision to take the claim to court, rather than use the government-sanctioned process, as their reason. I fear that could yet prove to be a costly, missed opportunity.

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.

Nature knows best about Sauble Beach

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Sauble Beach, unraked, early August, 2017

Sauble Beach is located on the western shore of Lake Huron, one of North America’s Great Lakes. It’s a major summer tourist destination in the Province of Ontario, Canada. On a busy summer upwards of 25,000 people will pack the beach and the nearby business community of restaurants,  campgrounds, hundreds of rental cottages and other tourism-oriented businesses.  Most will come from the cities a couple of hours drive south in Ontario. Sauble Beach is one of the biggest tourist destinations in the area often referred to as Grey-Bruce, after the two counties it includes.

That area, and more, is part of the traditional territory of the Saugeen Ojibway Nation, which includes the Chippewas of Nawash First Nation and the Saugeen First Nation. Continue reading →

A lost opportunity in relations with First Nations

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I have a clear memory of sitting across from the late Chief James Mason in his office at the Saugeen First Nation Band Office at Chippawa Hill more than 30 years ago. It may not have been the first time, or the last time. I had several such meetings/interviews with him. My beat as an Owen Sound Sun Times reporter at the time included Aboriginal Affairs and the various issues affecting the two First Nations in Ontario’s Grey-Bruce area, the other being the Chippewas of Nawash at Cape Croker.

Continue reading →

Saugeen Ojibway Nation land-claim lawsuit at a crucial phase

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bruce park

In recent years the Bruce Peninsula National Park has become an important international tourist destination, with much of the attention focused on the Grotto, above.

(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. Continue reading →

An Aboriginal fisherman leaves food for thought

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A few weeks ago a well-used pick-up truck pulled into our driveway on the Bruce Peninsula. A man who looked like he might be in his mid-30s got out and said he and his fisherman partner had some freshly caught Georgian Bay fish for sale and did I want some.

They were from nearby Cape Croker, home of the Chippewas of Nawash First Nation, and they were doing what people from there have been doing for hundreds, perhaps thousands of years, trading and bartering the fish they catch, in this case nowadays, for cash. That traditional and vital use of the fishery around what  used to be called the Saugeen Peninsula, for food and trade, was recognized and re-affirmed by an Ontario court decision in 1993, that ruled First Nation people in this area were entitled to “priority” use of the fishery in local waters.

At the time most large-scale commercial fishers in Lake Huron and Georgian Bay waters in this area were non-Aboriginal. That court decision began a process of change, leading to the predominantly First Nation fishery that exists today. But the initial reaction of many people in the local non-Aboriginal community was angry and confrontational.

For a while downtown Owen Sound was not a friendly or even safe place for First Nation people to be. One night two young men from Cape Croker were attacked with knives by a group of thugs and badly injured. Continue reading →

First Nation land claims will have huge impact

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I suppose the day will come that I will have to hang up my journalistic spurs for good, in which case I hope I’m around long enough to see some long-standing big stories finally played out one way or another, for the better.

But in the meantime I attended the public meeting earlier this week about the proposed settlement agreement in connection with the Saugeen First Nation’s lawsuit/claim to much of the rest of Sauble Beach.

I was not the least bit surprised to see the parking lot full to overflowing when I arrived. With the Sauble Beach Community Centre at its 500-person capacity limit, and people being turned away shortly before the meeting began, I was lucky, and much relieved, to get in.

I had gone as much to be a witness to history, as for the sake of immersing myself in the big story yet again.  And make no mistake, based on my more than 30 years experience, this is right up there with the Niagara Escarpment Plan controversy in the late 1970s, the Bruce Peninsula National Park debate in the early 1980s, and the terrible reaction in the non-Aboriginal community to the 1993 court decision that affirmed the local Aboriginal “priority” right to the fishery in area waters.

And this, a claim and proposed settlement affecting the Grey-Bruce area’s major summer beach/tourism resource, may be something like a dress rehearsal for an even bigger story to come. That’s the Saugeen Ojibway lawsuit involving road allowances and other land on the entire Bruce Peninsula. Continue reading →