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.

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.