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Treaties and Land Claims

SON asking Supreme Court to weigh in on Bruce Peninsula claim

November 29, 2023

First Peoples Law Report: The Owen Sound Sun Times – Saugeen Ojibway Nation wants the Supreme Court to consider whether the Crown owed a fiduciary duty to them and whether it was breached when the Crown didn’t stop settlers from moving into the Bruce Peninsula, which was promised to SON.

It’s asking the Supreme Court of Canada for leave to appeal parts of lower court decisions against SON’s multi-billion-dollar Bruce Peninsula land claim and Aboriginal title to territorial waters around Bruce Peninsula and beyond.

Both the trial judge and the Ontario appeal court have concluded the Crown owed no fiduciary duty to SON — despite failing to live up to its promise to do more to keep settlers from pouring into the Bruce Peninsula.

SON is seeking federal lands, including Bruce Peninsula National Park, and provincial lands on the peninsula to be held for them in a constructive trust. That’s based on there being a Crown fiduciary duty which was breached, SON’s lawyer Cathy Guirguis has said.

It might take two or three months before the Supreme Court considers written arguments and decides whether to hear the appeals, Guirguis said in an interview this week.

This summer, the Court of Appeal for Ontario upheld Superior Court Justice Wendy Matheson’s finding that the Crown breached its treaty with the Chippewas of Nawash and the Chippewas of Saugeen between 1836 and 1854, and breached its honour, by failing to protect the peninsula for SON.

Guirguis said SON’s view is the Crown also had a fiduciary duty, based on Supreme Court case law and Canadian law, by “taking authority and promising to protect the peninsula in 1836” and that the Crown breached it.

Justice Matheson agreed with SON that there was a treaty promise to protect the peninsula for SON and found the Crown breached its promise, which was made by the Crown in 1836 in exchange for SON’s surrender of 1.5 million acres of rich farmland south of Owen Sound.

However, 18 years later, the Crown returned for a surrender of the peninsula, saying it could no longer protect SON’s remaining land from settlers. Treaty 72 was signed in 1854, when SON surrendered most of the peninsula.

“The treaty promise cannot be construed as an undertaking by the Crown to forsake the interests of all others in the province and act exclusively for SON’s benefit, which is an essential element of the conventional fiduciary duty test,” the appeal court wrote.

“The nature of the promise here did not amount to direct administration of access to SON’s lands. The Crown did not control access to those lands and was not the gatekeeper,” the appeal court wrote in affirming the trial judge’s decision.

Similarly, the appeal court agreed with the trial judge’s finding that SON has no valid claim to Aboriginal title over a large area of Lake Huron and Georgian Bay. But the court said SON might have a title claim to smaller areas, such as the waters around Hope Bay on the east shore of the peninsula.

The Ontario appeal court sent the title claim back to the trial judge to come up with a fair process for deciding which area waters might be recognized as having Aboriginal title. Dates for that hearing aren’t set.

SON is asking the Supreme Court not to deal with the appeal it’s asking for regarding the referral of Aboriginal title back to the trial judge until her work on this question is finished, Guirguis said. She added that by seeking leave to appeal, SON wants to preserve its right to appeal that decision, she said.

Ontario is seeking Supreme Court’s leave to appeal the decision to send the question of Aboriginal title to territorial waters back to the trial judge too, Guirguis said. Justice Matheson agreed at trial there was “a lot of evidence” about SON’s historical presence on the peninsula and on the waters for fishing and ceremonial practices, Guirguis has said.

But the judge decided there was insufficient evidence of “exclusive and sufficient use” and occupancy of the whole area claimed to meet the test set out by Canadian law for Aboriginal title.

Once the trial and any appeals are completed, the court process will move to determining a remedy for the breaches of treaty and the honour of the Crown.

SON’s initial treaty claim, filed in 1994, sought $80 billion in compensation, plus $10 billion in punitive damages, as well as the return of all Crown land not in the hands of third parties, including the Bruce Peninsula National Park. It filed the Aboriginal title claim for waters around the Bruce Peninsula later.

The appeal court this summer dismissed the action against the remaining municipalities named in the lawsuit, which claimed all opened and unopened road allowances in municipal hands. Guirguis said SON’s pursuit of those lands has ended.

And the court dismissed Ontario’s cross-appeal of the trial judge decision and instead maintained Justice Matheson’s finding that the Crown breached Treaty 45 1/2 for failing to perform the treaty promise to protect the Bruce Peninsula for SON with sufficient diligence, thereby breaching the Crown’s honour.