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

In the garden with granddaughter Jorden

(February 9th, 2021. This article has been updated regarding third-party — including private property — issues and current Government of Canada policy related to First Nation land claim settlements.)

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 for a couple of reasons:

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.

We’ve waited long enough to find out what caused the “blast” that shook our homes

brucemapAt 5:20 pm on December 13, 2019 a large area on the Bruce Peninsula was shaken by what was initially reported as a small earthquake by Natural Resources Canada, which monitors seismic activity coast to coast in Canada. It registered 2.1 on the Richter scale. Seismic events at that level are not usually felt, not until they reach 3.5 on the scale. But that one was felt, and heard, for several seconds from Cape Croker north-east of Wiarton, to Lion’s Head, about halfway up the peninsula.

As I’ve said before in several previous posts, I thought at first part of my house in Hope Ness, north of Hope Bay, had collapsed, and perhaps the nearby barn, or a large tree had fallen on or near the house. By that time night had fallen. I went outside with a flashlight but saw nothing amiss. Back in the house I turned on a kitchen tap and was relieved to find the water was still running. So, apparently the deep drilled well had not been damaged. Continue reading

More to the Bruce Peninsula than national parks

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My granddaughter, the irrepressible and delightful Asia at her favourite place, the lookout over Georgian Bay from the Niagara Escarpment cliffs, just a short walk from “the family farm” in Hope Ness on the Bruce Trail.

I happened to be in Wiarton twice the day before the start of the Canada Day long holiday weekend, on my trip to and from Owen Sound to run a bunch of errands. Both times the northbound traffic was as heavy as I’ve ever seen it, in 37 years of living on the Bruce Peninsula. Continue reading

My old friend is being reborn

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Mr. Massey before

There’s a mountain of work to do at Cathedral Drive Farm in Hope Ness these days: weed between the rows, hill the potatoes, spread straw mulch everywhere possible to hold the moisture in the soil and keep the clay-loam soil from baking to hard-pan in the sun, mow the hay, take the wild barn cat his morning dish of milk, prep the downstairs bedroom for painting . . . on and on it goes.

But I’ve got it down pat now: I take a few minutes in the morning after the indispensable two cups of coffee to write the daily to-do list; and then I proceed to ignore it as I just “keep on keeping on” with one thing at a time, or two or three, until the sun begins to set. And then I think it’s about time to see what’s going on in the world and the blogosphere.

But first, this day I went over to “The Shop” to see how Brent was getting on with the restoration of Mr. Massey, my world-famous, and one-of-a-kind, Massey-Harris 22 tractor.

Continue reading

A wonderful abundance

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Clouds of Forget-Me-Nots in the Wild Apple Farm woods    Photos by Linda

I don’t recall ever seeing so many of those pretty little flowers known as Forget-Me-Nots, especially in the woods here in Hope Ness. But the “wow” factor was particularly intense at nearby Wild Apple Farm where my friend Linda paused to prepare me for the sight as we were about to enter the virtual wonderland of her trail through the wild-apple woods. Continue reading

Set your vision free

The understanding of who you are is within you.

Trapped inside, often for far too long, that clear vision of one’s true self desperately wants out, so it can be free at last to find its right path to becoming real. But things can get confusing, and we can lose our way.

I am reminded of the bird we saw two summers ago, a frantic little creature that somehow got trapped between two window panes in a second-floor room of this old farmhouse.

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The window where the bird was trapped; and one of Wilma Butchart’s creations

We shared that special moment, didn’t we, my love? It told us something very important. We even knew what it was. But by then I suppose the troubles were already insurmountable.

Continue reading

Celebrating Canada’s diversity

I suppose one of the advantages of getting to a certain age is the view it offers of how dramatically things have changed, in so many ways. Whatever may be happening elsewhere in the world that is troubling and worrisome, my country, Canada, has changed and is still changing for the better. I will go so far as to say it’s surely one of the more hopeful places in the world; perhaps even the hope of the world.

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Toronto, my home town, is now one of the most multicultural cities in the world

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Living in hope, finding a way

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A lovely old garden shed  on the “to do” list needs some TLC

I live in Hope.

I do that literally, as in I live in Hope Ness. I also live in hope of learning how to tap into the special spirit of Hope Ness so at this late stage in my life I can finally do justice to it, and life.

About time; it’s been 37 years since that wonderful, hopeful moment when I came out of the woods, around a curve in the then still-gravel county road and was stopped in my tracks by a place that called out “home” to me.

There were more twists and turns, more ups and downs over the years; here sometimes, sometimes not. But hope and stubborn perseverance have seen me through, and I’m here to stay for good now in Hope Ness, at the place I have come to call Cathedral Drive Farm, beside the Hope Bay Nature Reserve, the Hope Bay Forest, and Hope Bay itself, of course.

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Saugeen Ojibway Nation land-claim lawsuit at a crucial phase

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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

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