Saugeen Ojibway Nation disappointed with court decision

SAUGEEN TERRITORY – A decision 20 years in the making has left a sour taste in the mouths of people who belong to the Saugeen Ojibway Nation (SON). They are vowing to fight back against what some call terra nullius, based on the Doctrine of Discovery.

Indigenous Corporate Training Inc., a resource that shares knowledge and information through training courses, blogs, and other free resources so they can “make the world a better place for Indigenous and non-Indigenous people alike,” provided the following information, which their website says is important because it has never been renounced.

“It remains the basis for Canadian law and as such continues to impact Indigenous Peoples.

“It gave sovereignty or title of Indigenous traditional lands and territories to the Crown. It remains today ‘the legal justification for the colonial occupation of our lands and our nations. As long as Canada bases its existence on that doctrine, it is hard to characterize it as anything other than a racist state where one race has been given the right to subjugate and confiscate the lands of another.’

“The doctrine of Aboriginal rights exists…because of one simple fact: when Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates Aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal status. R. v. Van der Peet, para 30.”

The trial that began on April 23, 2019, and concluded on Oct. 23, 2020, was “an Aboriginal title claim to parts of Lake Huron and Georgian Bay, and a claim that the Crown breached its promise to protect forever parts of the Saugeen (Bruce) Peninsula for SON,” a press release stated.

Indigenous people in Canada have successfully brought court claims about title to lands, but this was the first time a court decided the matter of Indigenous title to waters, the release said.

Justice Wendy Matheson of the Ontario Superior Court decided that SON did not meet the test set out by Canadian law for Aboriginal title to the claimed areas in Lake Huron and Georgian Bay.

SON’s title claim was about its traditional territory, including Lake Huron and Georgian Bay.

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 called for evidence about exclusive and sufficient use when the British Crown asserted sovereignty. In this case, that date was 1763.

Although Justice Matheson agreed that there was a lot of evidence about SON’s historical presence on the Peninsula and the waters for fishing and ceremonial practices, she decided that there was insufficient evidence of exclusive and sufficient use and occupancy of the whole area claimed to meet the test.

“We are disappointed that the court didn’t recognize our claim to our waters,” Acting Chief Anthony Miptoon Chegahno of the Chippewas of Nawash Unceded First Nation said in the release. “As Anishinaabe, our connection to our water territory is extremely important and we will continue to exercise our responsibilities and assert our rights to our lands and waters.”

The history of the claim, according to the release, says, “In 1836, SON agreed to Treaty 45 ½, which surrendered 1.5 million acres of its lands south of Owen Sound to the Crown. In exchange for those rich farming lands, the Crown made SON an important promise: to protect the Saugeen (Bruce) Peninsula for SON, forever. But, 18 years later the Crown came back for a surrender of the Peninsula. The Crown said that they could no longer protect SON’s remaining lands from settlers, and Treaty 72 was signed in 1854 where SON surrendered most of the Peninsula.”

Justice Matheson did agree with the claim that there was a treaty promise to protect the Peninsula for SON and found that the Crown breached that treaty promise.

She said that 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. As well, Justice Matheson concluded that one of the Crown’s negotiators, T.G. Anderson, breached the honour of the Crown by saying that the Crown would not honour its promise to protect the Peninsula.

SON also sought a declaration that the Crown’s failure to protect SON’s lands and keep its treaty promise was a breach of the Crown’s fiduciary duty, but Justice Matheson disagreed. Instead, she found that there was no fiduciary duty in addition to the Crown’s obligation to honour its treaty promises.

“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,” says Chief Lester Anoquot of the Saugeen First Nation. “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’s Treaty Claim is being heard in phases. This phase was about declarations, and the second phase will be about remedies. The second phase will only take place after all appeals of the first phase are heard and decided.

As a remedy, SON 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. 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.