Revealed Jan 10, 2025 • 6 minute learn
The landmark signal at Sauble Seashore is seen on this file photograph.
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The City of South Bruce Peninsula plans to ask the Supreme Court docket of Canada for permission to file an attraction associated to the Sauble Seashore Land Declare.
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The city introduced in a information launch on Friday that whereas a current Ontario Court docket of Enchantment determination consists of some “encouraging statements,” there have been nonetheless some “outstanding issues” that stay and the city just isn’t able to drop its proper to hunt go away to attraction to the Supreme Court docket.
The city stated it intends to file its Depart to Enchantment paperwork to the Supreme Court docket by a Feb. 7 deadline.
In its information launch, the city outlined a handful of points and considerations that it feels stay unresolved, significantly the absence of a authorized survey confirming a brand new reserve boundary.
“Although the Court of Appeal’s findings regarding Lakeshore Blvd N. and properties lying to the east provide some optimism for the Town, the Federal Government still needs to conduct a legal survey that confirms the precise location of the Reserve’s eastern boundary,” the city launch stated. “We do not expect that a legal survey could be completed until the spring/summer of 2025.
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“In addition to the survey issue, Saugeen First Nation has not agreed to restrict it’s claim to the lands west of Lakeshore Blvd N.”
Different points recognized by the city as being unresolved embody the upkeep of Sauble Seashore’s drainage shops on reserve lands, long-term possible public entry to the seashore, and beach-related operations and partnership alternatives.
A city spokesperson stated Friday afternoon that the discharge was the one info being issued.
In a Dec. 9 determination, the Court docket of Enchantment for Ontario dismissed appeals of an April, 3, 2023 determination by Superior Court docket of Ontario Justice Susan Vella that discovered Saugeen First Nation owns a lot of the north finish of the seashore. South Bruce Peninsula nonetheless owns a stretch of the seashore from about seventh Avenue North to the mouth of the Sauble River.
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The attraction court docket had additionally denied South Bruce Peninsula’s request to attraction an order from Vella in Could that the city pay Saugeen $1.67 million and pay Canada $467,000 of authorized prices.
In its information launch issued Friday, the city stated it had been reviewing the attraction court docket’s 121-page doc, and the choice had raised numerous important authorized points that council continues to digest.
However the city additionally stated there have been “encouraging statements” within the Ontario attraction court docket’s determination because it pertains to the reserve’s japanese boundary.
“The court’s finding that the trial judge did not intend lands east of the sand beach to form part of the Reserve is positive for the town,” the discharge stated. “This would suggest that Lakeshore Blvd N. and properties to the east, should remain within South Bruce Peninsula.”
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The city additionally famous that if it had been to drop its rights to attraction presently, ought to a survey be accomplished and never align with the court docket’s written description of the reserve boundaries, the city would then must begin authorized proceedings.
The city went on to say that its authorized crew at Lax O’Sullivan Lisus Gottlieb LLP (LOLG) “appreciates and understands the significance of the costs borne by South Bruce Peninsula to date, and as such is offering to undertake the entire appeal process at no cost to the Town, should the appeal be unsuccessful.”
If its attraction the Supreme Court docket is heard, it will not be selected till 2026 on the earliest, the city stated. Within the meantime, they plan to proceed to speak with Saugeen First Nation with an intention to resolve the excellent issues it recognized.
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“Even once all appeals have been resolved, it is important to note that the Land Claim Trial is only in Phase One,” the city launch added. “Phase Two of the Land Claim Trial primarily deals with compensation to impacted parties and it won’t likely be resolved until sometime in 2026 at the earliest.”
Saugeen already owned the seashore south of Sauble’s Important Avenue, however in her April 2023 ruling, Superior Court docket Justice Vella dominated that the disputed 2.25 kilometres, or 1.4 miles, north of Important Avenue at Sauble “always has” been a part of the Saugeen reserve. It was a part of a “valuable fish landing ground fronting Lake Huron” known as Chi-Gmiinh.
Vella discovered provincial land surveyor Charles Rankin incorrectly marked the boundary in 1855 when he set the northern terminus of the japanese reserve boundary about 1.4 miles south of the place it ought to have been, because of the concavity of the shoreline.
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He selected to comply with the treaty directions, which required the boundary to be all on dry land. However the wording didn’t account for the shoreline’s concavity, and would have meant drawing a line via moist sand. So Rankin selected to maneuver the northern terminus of the japanese boundary additional south, the place Important Avenue is as we speak, leading to Saugeen shedding about 1.4 miles of seashore.
That he had different choices was “‘troubling,’ although explainable by the ‘urgent time pressures’ he was under,” the attraction court docket quoted Vella saying. The attraction court docket additionally famous that accretion westward has widened the seashore in contrast with 1855.
This boundary setting was a part of the Saugeen and Nawash bands’ give up of many of the then-Saugeen Peninsula to the Crown, aside from lands reserved for themselves, set out in Treaty 72. Vella determined the Copway Street Modification, which added reserve lands to the south across the identical time, was along with the 9.5 miles of shoreline promised within the treaty.
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The Ontario Court docket of Enchantment agreed with the trial decide’s determination to acknowledge and treatment the historic incorrect that Saugeen was due 9.5 miles of Lake Huron shoreline as a treaty promise however acquired about 1.4 miles much less.
Granting the northern strip of seashore at Sauble “fulfills the Treaty promise, restores the honour of the Crown, and promotes reconciliation between the Treaty partners,” the attraction court docket wrote.
Justice Vella’s earlier determination additionally ordered the federal authorities and Ontario to pay $322,000 and $1.28 million respectively to Saugeen First Nation, totaling $3.22 million in prices, disbursements and HST.
Nonetheless, the attraction court docket granted Canada’s cross-appeal and ordered the difficulty of pre-Confederation legal responsibility again to the trial court docket for the second part of the method. That may decide any remaining points, together with damages for breaches of Crown honour and fiduciary duties.
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Canada supported Saugeen’s place at trial and conceded it had breached its fiduciary obligation by the Imperial Crown, however denied participating in dishonourable conduct. Its cross-appeal disputes Vella’s willpower that it alone is accountable for the pre-Confederation Crown’s legal responsibility.
The attraction court docket reviewed Ontario’s arguments level by level. For instance, it didn’t settle for Ontario’s argument that Vella “erred in law by choosing the interpretation that favours Saugeen rather than choosing an interpretation that best reconciles the interests of both Saugeen and the Crown.”
She understood and utilized the right authorized ideas in deciphering the treaty, the attraction court docket stated. The precept, confirmed in six Supreme Court docket of Canada instances Vella cited, is that “if terms of a treaty remain ambiguous after considering the text and cultural and historical context, the ambiguity should be resolved in favour of the First Nation.”
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The attraction court docket rejected South Bruce Peninsula and the affected households’ argument that Vella didn’t outline the japanese boundary of the brand new northern a part of the reserve, purportedly leaving open a risk that the reserve might embody Lakeshore Boulevard, cottages and companies.
“Although the Reserve boundaries will have to be resurveyed in accordance with the trial judge’s declaration,” the attraction court docket stated, “there is no danger that lands either south of the road allowance between lots 25 and 26, or east of Lakeshore Boulevard, will be affected.” Tons 25/26 is at Important Avenue.
The attraction court docket stated the decide made clear she meant “a strip of beach,” “coastline,” and “disputed beach,” not one thing broader.
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Following the Ontario attraction court docket ruling, Chippewas of Saugeen Chief Conrad Ritchie stated the rights of his folks had been vindicated.
“After generations of struggle this is a victory that belongs to our entire community,” Ritchie stated in a launch after the choice. “Our relationship with our lands and waters is central to our way of life and Sauble Beach — known to us as Chi Gmiinh — is an integral part of our community. Out of all our vast territory, this was the place that our ancestors chose to reserve for their future generations when they took treaty with the Crown.”
Ritchie was contacted for touch upon Friday, however a reply was not instantly acquired.
— with recordsdata by Scott Dunn
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