Saugeen Ojibway Nation Treaty and Title Claim

If you are interested in the SON Treaty and Title Claim, please bookmark this page and check back regularly, as it will be updated throughout the case.

OKT is proud to represent the Saugeen Ojibway Nation in the trial of two longstanding claims: a claim about its ownership of lands under water and a claim seeking redress from Canada and Ontario for a broken promise to protect some of SON’s lands.

Closing arguments began on October 19, 2020 and were completed on October 23, 2020. Closings arguments were heard by the Ontario court virtually, due to pandemic restrictions in place restricting attendance numbers inside a courtroom.

The Phase 1 trial level Decision was released on July 29, 2021.

Download Written Closing Submissions

Download Decisions

Appeal Documents

Background

SON is made up of two distinct First Nations – the Saugeen First Nation and the Chippewas of Nawash Unceded First Nation. The two First Nations launched its claims jointly approximately 20 years ago.

Aboriginal Title Claim

SON’s claim about ownership of lands under water is a claim about title to SON’s traditional homelands that were not surrendered by treaty.  SON’s traditional homelands includes the Saugeen (Bruce) Peninsula and about 1 ½ million acres of land to the south of it, stretching from Goderich to Collingwood. It also includes the waters surrounding those lands. Those are the waters of Georgian Bay and Lake Huron, and SON is asking the court to recognize SON’s ‘Aboriginal title’ to those waters.

Aboriginal title, in Canadian law, is an Indigenous land right that is recognized and protected by section 35 of the Constitution Act, 1982. While First Nations in Canada have successfully brought court claims about Aboriginal title to lands, this is the first time that the issue of Aboriginal title to waters will be decided by a court.

Treaty Claim

SON’s second claim is about Treaty72. In 1836, the British Crown pressed SON to surrender 1.5 million acres of its lands south of Owen Sound. 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.

SON’s claim is 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. What SON is seeking is a declaration the Crown breached this duty. If successful, in a later phase of this claim, SON will be looking for recognition of its ownership interests in  lands on the Saugeen (Bruce) Peninsula that are still owned by Ontario or Canada or have not been bought and paid for by third parties (so, municipal roads, for example), as well as compensation.

The trial of both claims began on April 23, 2019, and is being presided over by Justice Wendy Matheson of the Ontario Superior Court.

Trial Decision Released

The decision in two longstanding claims by the Saugeen Ojibway Nation (SON) was released today by Justice Wendy Matheson of the Ontario Superior Court.

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 their claims jointly against Canada and Ontario approximately 20 years ago. SON’s claims included: 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.

The trial began on April 23, 2019 and concluded on October 23, 2020.

SON’s Title Claim

SON’s title claim was about its traditional territory, which included parts of Lake Huron and Georgian Bay. While First Nations in Canada have successfully brought court claims about Aboriginal title to lands, this was the first time that the matter of Aboriginal title to waters was decided by a court.

Justice Matheson found 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. 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.

Although Justice Matheson agreed that there was a lot of evidence about SON’s historic presence on the Peninsula and on 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 in order to meet the test.

“We are disappointed that the court didn’t recognize our claim to our waters,” says Acting Chief Anthony Miptoon Chegahno of the Chippewas of Nawash Unceded First Nation. “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.”

SON’s Treaty Claim

SON’s Treaty Claim was also about its relationship to its homelands. In 1836, SON agreed to Treaty 45 1⁄2 , 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 ’s decision agreed with SON 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. . 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 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. 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 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.

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