The Saugeen land claim and the ‘path of peace’

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.