Printed Oct 05, 2023 • 4 minute learn
SON attorneys are contemplating an attraction to the Supreme Courtroom of Canada regarding its multi-billion-dollar Bruce Peninsula land declare and Aboriginal title declare to the encompassing waters. (Equipped map)
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A Saugeen Ojibway Nation lawyer stated they’re contemplating searching for depart to attraction to the Supreme Courtroom of Canada a current Ontario attraction courtroom choice regarding SON’s multi-billion-dollar Bruce Peninsula land declare and Aboriginal title declare.
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SON lawyer Cathy Guirguis stated Thursday they’ve till the top of October to formalize an attraction of the Aug. 30 Courtroom of Attraction for Ontario choice. “At this point we’re just exploring all of our options,” Guirguis stated by cellphone.
SON attorneys failed to steer the Courtroom of Attraction for Ontario to vary with the trial choose, Superior Courtroom Justice Wendy M. Matheson, on an necessary level. She dismissed SON’s declare {that a} fiduciary obligation was owed by the Crown to SON.
A discovering of a fiduciary obligation breach would doubtlessly be very important, Guirguis stated in a 2021 interview, “because that’s the basis on which we’re saying that the lands that are now held by the Crown, federal and provincial lands, should be subject to a constructive trust in favour of SON.”
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“But they (the appeal court judges) have confirmed that there is a breach of treaty and a breach of honour of the Crown,” she stated Thursday. “The issue of remedies, is what do you get for that, is a matter of Phase 2 for litigation.”
That may occur in any case appeals are exhausted, Guirguis stated, who confirmed there are not any present out-of-court settlement talks involving SON’s claims. SON consists of the Chippewas of Nawash and Chippewas of Saugeen, primarily based on the Bruce Peninsula.
SON’s preliminary treaty declare, filed in 1994, sought $80 billion in compensation, plus $10 billion in punitive damages, in addition to the return of all Crown land not within the arms of third events, together with the Bruce Peninsula Nationwide Park. It was adopted later by the Aboriginal title declare for waters across the Bruce Peninsula.
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The attraction courtroom confirmed the trial choose’s discovering that SON has no legitimate declare to Aboriginal title over a big space of Lake Huron and Georgian Bay, however it might have a smaller declare to the waters of Hope Bay, which it despatched again to the trial choose to determine.
No dates are set for that and this route from the attraction courtroom components into discussions a few attainable Supreme Courtroom attraction, Guirguis stated.
The attraction courtroom additionally dismissed the motion towards the remaining municipalities named within the lawsuit, which claimed all opened and unopened street allowances in municipal arms.
And it dismissed Ontario’s cross-appeal of the trial choose choice and as an alternative maintained Matheson’s discovering that the Crown breached Treaty 45 1/2 for failing to carry out the treaty promise with enough diligence, thereby breaching the Crown’s honour.
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The Crown’s honour is outlined within the judgment as that which requires the Crown to “purposively and diligently perform its constitutional obligations and treaty promises.”
This pertains to when SON ancestors agreed to give up a big swath of land south of the peninsula in alternate for “a Crown promise to protect the peninsula against encroachment and to assist with construction and cultivation.”
Matheson discovered the Crown breached its treaty obligation to guard the peninsula from settler encroachments. “These findings were rooted in the trial judge’s determination that the Crown could have done more to both prevent encroachment and to remove those who were found to be encroaching,” the three-judge panel choice stated.
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“Constables could have been appointed. Sheriffs could have been used. Instead of the leniency offered to trespassing settlers, penalties could have been imposed,” the attraction courtroom stated, recounting what the trial choose discovered.
Requested whether or not the province would attraction that call, a media spokesperson for the Ontario Ministry of the Lawyer Common responded by e-mail, saying it could be inappropriate to remark inside the attraction interval.
The trial choose additionally discovered that some however not all Crown conduct main as much as signing Treaty 72 in 1854 breached the honour of the Crown. Treaty 72 noticed SON ancestors give up many of the Bruce Peninsula as settlers poured in and the Crown stated they couldn’t cease them, and left the First Nations individuals on immediately’s reserves.
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However the attraction courtroom agreed with the discovering of the trial choose that the Crown owed no fiduciary obligation to SON on this case, both a standard obligation or one distinctive to Aboriginal individuals.
“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 attraction courtroom 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 attraction courtroom wrote in affirming the trial choose’s choice.
The Crown may have finished extra to “police trespassers” on the peninsula below phrases of Treaty 45 1/2, the courtroom wrote. “These obligations, however, are ill-suited to fiduciary obligations and are more akin to public law, rather than private law, duties.”
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