SAUGEEN & NAWASH COMMUNITY UPDATE: TITLE AND TREATY COURT DECISION
On July 29, 2021, the Court released its decision on the Saugeen Ojibway Nation (SON) Aboriginal Title and Treaty Claim. The results were mixed. SON was unsuccessful in the Aboriginal Title Claim, but mostly successful on its Treaty Claim.
SON’S COURT CLAIMS AND THE TRIAL
What are SON’s Court Claims?
- SON’s Court Claims are joint claims that were launched by Saugeen First Nation and the Chippewas of Nawash Unceded First Nation.
- SON filed its claim about Treaty 72 in 1993, and its claim for Aboriginal title in 2003. The two claims were heard together in one trial.
- The trial started on April 23, 2019, and was heard by Justice Wendy Matheson of the Ontario Superior Court.
- There was about 100 days of trial, and closing submissions were heard in October 2020.
- Justice Matheson released her decision on July 29, 2021.
THE TITLE CLAIM
What was the Title Claim about?
- Aboriginal title, in Canadian law, is an Indigenous land right that is recognized and protected by section 35 of the Canadian constitution.
- SON’s claim was for a declaration of Aboriginal title to portions of Lake Huron and Georgian Bay. The claim was for ownership of lands under water, since the owner of those lands would get rights to everything above those lands; that is, the waters.
How do you prove Aboriginal title?
- To prove Aboriginal title in a Canadian court, you have to show that you used the claimed area at the time of the assertion of British Sovereignty and could exclude others from the area at that time. In this case, the date of the assertion of British Sovereignty was 1763.
What did the Judge decide?
- The trial judge, Justice Matheson, decided SON did not meet the test set out by Canadian law for Aboriginal title to the claimed areas in Lake Huron and Georgian Bay.
- She agreed that there was a lot of evidence about SON’s historic presence on the Saugeen (Bruce) Peninsula and on the waters in some areas for fishing and ceremonial practices. But, in her view there was not enough evidence of exclusive use and occupancy by SON of the whole water claim area or sufficient evidence of SON’s ability to exclude others in 1763.
THE TREATY CLAIM
What was the Treaty Claim about?
- In 1836, the British Crown pressed SON to sign Treaty 45 ½ and open up 1.5 million acres of their lands south of Owen Sound for settlement. In exchange for those rich farming lands, the Crown made SON a very important promise: to protect the Saugeen 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.
- SON’s claim was that the Crown could have protected the Peninsula and misled SON in the negotiations of a surrender of the Saugeen (Bruce) Peninsula. SON’s claim is that this was a breach of the Crown’s fiduciary duty, and a breach of the Honour of the Crown.
What is the fiduciary duty?
- A fiduciary duty is a duty of one party to act in the best interests of another.
- Canadian courts have recognized that the Crown has a fiduciary duty to Indigenous peoples, especially when it comes to reserve lands, that is rooted in the Honour of the Crown, because the Crown has discretion over and exercises control of those lands.
- A fiduciary duty can also arise when there is a commitment by the fiduciary to act in the best interests of the beneficiary, and when the beneficiary depends on that commitment to protect their interests.
- The fiduciary duty imposes many obligations on the fiduciary, such as loyalty, good faith and full disclosure.
What is the Honour of the Crown?
- The Honour of the Crown is a constitutional principle that governs the relationship the Crown has with Indigenous peoples.
- Because the Crown asserted sovereignty over lands and resources that were controlled by Indigenous peoples, it created a special relationship that requires the Crown to act honourably when dealing with Indigenous peoples.
- The Honour of the Crown can give rise to a fiduciary duty, to a duty to consult and accommodate, to engage in fairly when it comes to treaty-making and implementation, and to act in a way that accomplishes the intended purposes of a treaty or statutory grants when it comes to Indigenous peoples.
What did the Judge decide?
- Justice Matheson decided that the Crown broke its promise to SON made in Treaty 45 ½ to protect the Peninsula. She said the Crown could have and should have done more to protect the Peninsula for SON. Breaking this promise was a breach of the Honour of the Crown.
- She also said that the Crown breached the “Honour of the Crown” leading up to the signing of Treaty 72 because its agent threatened to take the Peninsula without SON’s consent.
- However, Justice Matheson decided that the Crown did not owe a fiduciary duty to SON, and so dismissed this part of the Treaty Claim.
SON’S HARVESTING AND FISHING RIGHTS
- Justice Matheson’s decision has no impact on SON’s existing commercial fishing rights. She noted several times the importance of fishing to SON and that SON has an established right to fish on both sides of the Peninsula
- Justice Matheson affirmed that SON members have the right to exercise their Aboriginal rights to harvest on the Saugeen Peninsula (including surrendered lands) as long as it is done safely and the land is not put to an incompatible use. An example of an inconsistent use would be land that is now private residential housing.
- SON Joint Council has decided to appeal the Court’s decision to dismiss the SON’s claim to Aboriginal title, and also the Court’s decision to dismiss SON’s claim about the Crown’s fiduciary duty in the Treaty Claim.
- The appeal has to be made to the Ontario Court of Appeal. This is the next level of court before the Supreme Court of Canada.
- At the Ontario Court of Appeal, a panel of at least 3 new judges would hear and decide SON’s appeals.
- SON’s notice of appeal will be filed with the Ontario Court of Appeal on or before August 30, 2021.