The Ontario Superior Court has released its decision in two longstanding treaty and title claims by the Saugeen Ojibway Nation (SON).
On Thursday (July 29) Justice Wendy Matheson found in the Title Claim, SON did not meet the test set out by Canadian law for Aboriginal title to the claimed areas in Lake Huron and Georgian Bay.
A release from SON’s Environment Office says this is the first time the matter of Aboriginal title to waters was decided by a court in Canada.
SON explains, “Aboriginal title, in Canadian law, is an Indigenous land right that is recognized and protected by section 35 of the Constitution Act, 1982. The prevailing test calls for evidence about exclusive and sufficient use at the time that the British Crown asserted sovereignty. In this case, that date was 1763.”
SON says although Justice Matheson agreed there was a lot of evidence about Saugeen Ojibway Nation’s historic presence on the Peninsula and on the waters for fishing and ceremonial practices, she decided there was insufficient evidence of exclusive and sufficient use and occupancy of the whole area claimed in order to meet the test.
In a statement, Acting Chief Anthony Miptoon Chegahno of the Chippewas of Nawash Unceded First Nation says, “We are disappointed that the court didn’t recognize our claim to our waters.” He adds, “As Anishinaabe, our connection to our water territory is extremely important and we will continue to exercise our responsibilities and assert out rights to our lands and waters.”
Meanwhile, SON’s Treaty Claim was about its relationship to its homelands. SON says in 1836, it agreed to Treaty 45 ½ , which surrendered 1.5 million acres of its lands south of Owen Sound to the Crown.
They say in exchange for that land, the Crown promised SON it would protect the Saugeen (Bruce) Peninsula for SON forever.
SON says, 18 years later, the Crown came back for a surrender of the Peninsula saying it could no longer protect SON’s remaining lands from settlers, and Treaty 72 was signed in 1854 where SON surrendered most of the Peninsula.
According to SON, Justice Matheson ‘s decision agreed with Saugeen Ojibway Nation that there was a treaty promise to protect the Peninsula for SON, and found that the Crown breached that treaty promise.
Matheson said the Crown could have and should have done more to protect SON’s lands on the Peninsula. Because it didn’t, she found that the Crown breached its honour. Justice Matheson concluded that one of the Crown’s negotiators, T.G. Anderson, breached the honour of the Crown by saying the Crown would not honour its promise to protect the Peninsula.
SON also sought a declaration that Crown’s failure to protect SON’s lands and keep its treaty promise was a breach of the Crown’s fiduciary duty. Justice Matheson disagreed with this, finding there was no fiduciary duty in addition to the Crown’s obligation to honour its treaty promises.
Saugeen First Nation Chief Lester Anoquot says in a statement, “We are happy that the court affirmed the importance of the treaty promise the Crown made to our ancestors in 1836 to protect our lands, and held them to account for breaching that promise to us.” He adds, “This has been long journey to hold the Crown accountable for its broken promises, and we hope that they will commit to working cooperatively with us towards reconciliation and resolution of these wrongs.”
SON says its Treaty Claim is being heard in phases. This phase was about declarations, and the second phase will be about remedies.
They say the second phase will only take place after all appeals of the first phase are heard and decided.
SON says as remedy, it seeks compensation and a recognition of its interests in lands on the Peninsula – particularly those owned by Ontario, Canada and the road allowances and shore road allowances owned by municipalities who are named as defendants in the Treaty Claim.
- Saugeen Shores and First Nations Negotiating Land Claim Agreement
- Grey County, Saugeen Ojibway Nation Reach Agreement To Settle Claim
SON says, “The municipalities made arguments in phase 1 that they should be excluded from SON’s Treaty Claim, but Justice Matheson ruled that this question is a matter for phase 2 of the Treaty Claim.”
SON is made up of two distinct First Nations – the Saugeen First Nation and the Chippewas of Nawash Unceded First Nation – that have a shared history and ancestry. SON launched its claims jointly against Canada and Ontario about 20 years ago. The trial began on April 23, 2019 and concluded on October 23, 2020.