CLAIMS UPDATE N E W S L E T TE R SAUGEEN OJIBWAY NATION MNOOKMI 2011

Geewaedinooong

Ae-pungishimook Waubunoong

TREATY 72 (1854) Despite The Colpoys Bay Reserve previous promises to protect subject to TREATY 93 (1861) Zhauwunoong the Saugeen Peninsula, the Crown tells the SON it cannot protect the land from settlers, and the SON must allow this land to be opened up for settle- ABORIGINAL TITLE CLAIM AREA ment for the Crown to be able to protect the SON’s rights

USA

Georgian Bay The Nawash Reserve at subject to Chippewas of Nawash TREATY 82 (1857) Lake Unceded First Nation

Huron The Half Mile Strip subject to Chief’s Point TREATY 67 (1851) Chippewas of Saugeen First Nation SydenhamMeaford River

Collingwood Nattawasaga Saugeen

River River TREATY 45 ½ (1836) The SON agree to open up the land south of Owen Sound for settlement, and the Crown promises to protect the Saugeen Peninsula forever for the and their members

Maitland River Arthur

Goderich MESSAGE FROM THE CHIEFS HOW WE GOT HERE

Chief Ralph Akiwenzie wrote There is very little I can add to the solemn agreements between our The Saugeen Ojibway Nation’s the following message on impassioned words of my dear friend, Nation and the Crown. They are not (SON) territory was approximately Chief Ralph Akiwenzie. His message 2 million acres when the February 20, 2011, less than relics of the past, but rather living is exemplary of the vision and wisdom legal documents. The treaties are a Europeans arrived in the area. The two weeks before he passed he has brought to the many issues testament to the courage and dedica- British initially dealt with the away. It is one of his last facing our Nation. The resolution of tion of our ancestors to protect our Ojibway Nation on a nation-to- messages to the Nawash our Aboriginal Title claims will only relationship to the land (including the nation basis. They formed military alliances to advance Brit- community: further add to a tremendous legacy water) so that it would continue to that he left for us all. sustain us physically, culturally, and ish interests in the region. As they spiritually for generations to come. gained military power, the British This newsletter is intended to update I would like to acknowledge the We must continue to stand strong in policy began to change. The Crown both Chippewas of Nawash Unceded efforts of our Elders who have been our understanding of the treaties and sought what they considered to First Nation and Saugeen First Nation so fundamental in building the strong ensure that the hard work of so many be land surrenders by negotiating communities about the ongoing efforts evidentiary “back bone” for these of our people has not been in vain. It is treaties with First Nations through- of our legal advisors, Olthuis Kleer claims. I would also like to acknowl- imperative, to echo the sentiments of out the late 18th and into the 19th Townshend LLP, and our researchers edge the long standing efforts of our Chief Ralph Akiwenzie, that we stay centuries. This left many bands to advance the major land claim and current and past leaders who have the course. We will not falter. without enough lands to support the Aboriginal Title claim. They are fought so hard for the recognition We will succeed. themselves. to be commended for their dedication and protection of our rights, interests and commitment to the cause. I wish and way of life. Your dedication is an to also acknowledge the important inspiration to us all and a reminder Kitchi Miigwetch, TREATIES AND role that the Elders of both communi- of the strong resolve of our people. Chief Randall Kahgee SURRENDERS OF LAND ties have played in the research and To our legal team, I would say Kitchi Saugeen First Nation testimonies given. Kitchi miigwetch to miigwetch for your dedication to our Treaties are agreements Polly Keeshig-Tobias, The Illustrated History of the Chippewas of Nawash (Chippewas of Nawash, 1996) past Chiefs and Councillors who have people, communities and our Nation between First Nations protecting the relationship that First demonstrated leadership toward reach- and your commitment to justice for and the Crown. While the Nations had with their land. THE CLAIMS ing our common goals. our ancestors and our future Crown used treaties to gain access to land for settlement The SON and the British concluded I firmly believe that justice will prevail generations. Finally, to our people: In 1994, the SON brought an and mining, First Nations a treaty in 1836 that dealt with the in the very near future whereby the you are the foundation and strength action in court claiming that understood treaties as SON’s traditional territory. In ex- future generations will be the ultimate to our Nation. Without your past and INSIDE THE UPDATE Treaty 72 was unfair based building nation-to-nation change for opening up a portion of benefactors once these claims are continual support, we would relationships and protect- their land for settlement, the British on the Crown’s behaviour resolved. In the meantime, I feel that simply not be where we are today. HOW WE GOT HERE ...... 3 ing their relationship to promised the SON that the and broken promises. the education process must be acceler- The journey we have embarked on is the land. The Crown often Saugeen Peninsula would be pro- In 2003, the SON brought ated with the younger generation (our “our” journey. Through unity comes THE TREATY 72 promised to protect First tected forever for their use. But, another claim seeking a youth) in that these claims be included strength. I am confident that together CLAIM...... 4 Nations’ rights and to set not too long after, the government declaration of Aboriginal in their school curriculum at all levels. we will succeed in our quest for justice aside tracts of land for the claimed that they could no longer title to portions of Finally, to our community member- for the Crown’s legacy of broken exclusive occupation and THE ABORIGINAL protect the Saugeen Peninsula ship, I say: let’s keep the momentum promises and the reaffirmation of use of the First Nations and and Georgian Bay waterbeds. TITLE CLAIM...... 6 from settlers unless that land was going as our identity and future are at our Title to the lakebed that has been its members. Although a number of subject to another treaty with the stake! Therefore, your continual vested with our people and our Nation treaties read as surrenders of PROTECTING SON Crown. This resulted in Treaty 72 support is vital to our eventual success since time immemorial. land throughout the SON’s in the courts. RIGHTS & INTERESTS...... 7 in 1854, where the SON allowed traditional territory, there are I hope that this newsletter offers the First Nations had a different under- much of the land on the Peninsula no treaties that relate to the Kitchi Miigwetch, opportunity for our young people to THE LEGAL PROCESS...... 8 standing of what treaties with the to be opened up to settlement, be- British meant. They thought the lieving that there was no other way ownership of the lakes and Chief Ralph Akiwenzie better understand and appreciate our Ogimaa, Chippewas of Nawash history, treaties and our rightful place treaties were a means of building for the Crown to protect the bands’ waterbeds. Unceded First Nation within our homeland. Our treaties are a nation-to nation relationship and interests. THE TREATY 72 CLAIM IS NOT ABOUT ❖ RETURN OF LAND IN PRIVATE HANDS In 1854, the SON signed Treaty 72 ❖ COMPENSATION FOR with the Crown. The treaty dealt THE TREATY 72 CLAIM IS ABOUT LOSS OF USE OF THE with land on the Saugeen Peninsu- ❖ THE “EQUITABLE VALIDITY” OF TREATY 72 OF 1854: FISHERY la. The SON is challenging Treaty Given the circumstances and the relationship between the ❖ 72 based on the following: IMPLEMENTATION OF SON and the Crown, was the treaty fair? If it wasn’t fair, THE TREATY: The Crown accepted a duty to then Treaty 72 is not equitably valid. To the legal extent The claim is not about protect the Saugeen Peninsula possible, the court must wind back its provisions and provide whether the treaty was for the SON a remedy to the SON. This is different than asking whether properly implemented, i.e. • In Treaty 45 ½, 1836, the Crown Treaty 72 is valid according to rules of common law, which did the SON get full value assured the SON that if the First would be about undoing everything that has happened for lands, or what happened Nations allowed land in the since 1854. to the money from the southern part of its traditional ❖ RETURN OF LAND IN GOVERNMENT HANDS: land sales. This would be a territory to be opened for Return of lands that have NOT been purchased by people separate claim. who did not participate or know about the Crown’s breaches ❖ THE VALIDITY OR INVA- Polly Keeshig-Tobias, The Illustrated History of the Chippewas of Nawash (Chippewas of Nawash, 1996) of duty, i.e. government lands such as national parks, road LIDITY OF TREATY 45 ½ WHAT DOES allowances, and shore road allowances. “EQUITABLE” MEAN? ❖ It’s important to under- COMPENSATION FOR NON-RETURNABLE LAND stand the difference between ❖ COMPENSATION FOR LOSS OF USE OF THE LAND • The Crown did not properly RETURN OF LAND: COMPENSATION: EQUITABLE validity and advise SON about their rights If the land is still owned by the Based on the advice of experts, the COMMON LAW validity. to the land. Crown, a court may order its return. amount of compensation claimed The distinction stems from the way the British legal sys- If, based on the above, a court finds About 10% of the Saugeen Pen- by the SON is $80 billion. tem developed historically. settlement, the Crown would • In negotiating Treaty 72, 1854, that Treaty 72 was unfair to the insula is in government hands, If successful, the communities will Challenging the treaty’s protect the Peninsula for them the Crown stated it was unable SON, then the SON is entitled to including: need to decide what to do with common law validity would forever. to protect the Saugeen Peninsula some kind of remedy. • National park lands money awarded as compensation. mean asking a court to find from European settlers. What if the 1854 Treaty did not This will likely be with a view to that everything that hap- • Where else do we find the • All lakes and rivers happen? benefit the community as a whole pened to the land since 1854 is Crown’s duty to protect the • The Crown said that if the SON • Any original road allowances and and its members, now and in the illegal and must be reversed. • The SON would have still owned land? allowed settlement on most of shore allowances, which future. Instead, the SON is challenging • Royal Proclamation of 1763 the Peninsula, the Crown would some or all of the land in the municipalities obtained without whether Treaty 72 is equitably set side reserves for the exclusive • Treaty at Niagara, 1764 paying for them. ROAD ALLOWANCES are valid, which means asking the use of the First Nations and their • The SON would have used questions: • Queen Victoria’s Declaration If the land is privately owned, the strips of land reserved for use members. some or all of the land from 1854 court will not order its return. as roads when a surveyor first • Given all the circumstances, of June 29, 1847 confirming to present for personal use, or for was Treaty 72 fair to the SON? the rights of the SON to the • The SON would get the proceeds About 90% of the Saugeen surveyed the land. Sometimes profit roads end up being built on • If it was not fair, what Peninsula of the sale of the land. Peninsula has been sold to people To the extent possible, if the claim who bought it in good faith and them, and sometimes the land remedy can the SON be • Proclamation of November • The day after Treaty 72 was awarded without creating is successful, the court must con- are not to blame for the Crown’s is unsuitable for road building, 1851, declaring that provisions signed, the Crown did take steps injustice to people who may sider this question and try to wind broken promises. However, a court so roads end up being built of the Indian Lands Protection to prevent settlers’ trespass that have bought the land, but back Treaty 72 as much as legally may order the government to com- on land elsewhere. SHORE Act applied to the Peninsula would impact land sales, even did not participate or even possible. This is done through pensate the SON by paying what ROAD ALLOWANCES are though the Crown had claimed it know about the Crown’s The Crown breached its duty to COMPENSATION and where it the land is now worth plus compen- road allowances located at the breaches of duty? could not protect the land for the protect the Saugeen Peninsula is appropriate, the RETURN OF sation for loss of use of the land for edge of a river or lake. SON. for the SON LAND to the SON. 150 years. PROTECTING SON RIGHTS & INTERESTS ABORIGINAL CONSULTATION

The SON is claiming Aboriginal This will not include privately title to portions of Lake Huron WHAT IS ABORIGINAL TITLE? owned lands. A court will not Government and companies Aboriginal or treaty rights. That and Georgian Bay waterbeds, order people who did not know In Canadian law, it is a land right that means: must consult with and means government and except for those islands that about the SON’s claims and • The land is held communally by the First Nation CONSULT were the subject of treaties. The bought the land in good faith, to accommodate Aboriginal people companies must claim also excludes privately • The First Nation can use the land exclusively in a way that is return the land to the SON whenever they do something with the SON about activities owned lands. compatible with the First Nation’s attachment to the land that could affect Aboriginal that fall within, and may nega- The claim is based on: • The land cannot be transferred to anyone but the Crown • Instead of seeking the return rights and interests. tively impact, the lands claimed of privately owned lands, the in both the Aboriginal Title and • The SON ancestors’ exclusive How do you prove Aboriginal Title in Canadian law? A First Nation This is referred to as the DUTY SON is seeking compensation the Treaty 72 Claim. occupation of the area before may have Aboriginal Title to land where that First Nation or its TO CONSULT, and it is legally the assertion of British from the government for the ancestors exclusively occupied the land at the time the British required by the Constitution of The DUTY TO CONSULT sovereignty in the 1760s; loss of that land asserted sovereignty. Proof can include physical occupation in the Canada. Briefly, the duty to requires that the Crown act • The SON’s land rights in the past and in the present, the First Nation’s exercise of its laws and • The SON is also claiming the consult is: honourably and ensure that the territory have NOT been customs in the territory and oral history. revenue the government rights asserted by the SON in • The requirement that the surrendered; and received from use of the land. its claims are not compromised Crown or a third party must before the claims are decided by talk with a First Nation to find THE ABORIGINAL TITLE a court. The types of activities • Treaties between the Crown The SON is seeking a declara- out about how a proposed CLAIM IS ABOUT that could trigger this consulta- and the SON do NOT include tion of Aboriginal Title to the WHY CLAIM project could negatively affect ❖ ABORIGINAL TITLE TO tion duty include resource or mention lakes or waterbeds lands claimed. If the SON is “WATERBEDS”? that First Nation’s Aboriginal THE LAKES AND WATER development, or selling proper- BEDS IN THE SAUGEEN in the territory claimed, so the successful, then it will mean the The Aboriginal Title claim and treaty rights (including SON still owns that land. SON has the right to determine ties located in the SON’s tradi- OJIBWAY NATION’S is stated as a claim to the rights to lands and resources); TERRITORY who uses those lands. tional territory. • The requirement that the waterbed (not the water), The SON has had many more ❖ ACCOUNTING OF Crown or a third party may GOVERNMENT since in Canadian law, rights opportunities for consultation need to change the proposed REVENUES FROM THE above and below the soil about projects as a result of the project if necessary, in order LAND generally are held by land claims. Many projects, such to reduce negative impacts on ❖ THE OWNER OF THE the owner of the soil. as shoreline alterations, energy Aboriginal and treaty rights; WATERBED GETS projects, quarry projects and CONTROL OF SURFACE In this case, it means that the and AND EXCLUSIVE owner of the waterbed has new municipal sewer and water • An important step in FISHING RIGHTS rights to the water, the fish, systems have the potential to reconciling the relationship affect the SON’s land claims the air above and the min- between the Crown and First because they are happening in erals below the soil. Other Nations, according to or near the lands claimed. The THE ABORIGINAL TITLE principles of law can change Canada’s courts. goal of the consultation process CLAIM IS NOT ABOUT this, but this is the starting Consultation must take place is to ensure that the SON’s long ❖ RETURN OF LAND IN point for the law. whenever the Crown knows, or term interests (including protect- PRIVATE HANDS ought to know, that a project or ing the lands being claimed) are Polly Keeshig-Tobias, The Illustrated History of the Chippewas of Nawash (Chippewas of Nawash, 1996) decision could negatively impact respected. THE LEGAL PROCESS The Treaty 72 Claim started in court in 1994; the Aboriginal Title Claim began in 2003, and the two claims were merged. The SON is currently litigating the issue of the Crown’s liability in both claims. If successful, then the SON will litigate the matter of compensation that is due, or - at that point - the government may be willing to negotiate compensation instead.

THE PARTIES TO THE CLAIM PLAINTIFFS - The Saugeen Ojibway Nation, Saugeen First Nation DEFENDANTS - Canada, and the Chippewas of Nawash Unceded First Nation & Municipalities

PLEADINGS THE PARTIES SET OUT THEIR POSITIONS COMPLETE ON MATTERS AT ISSUE

DISCOVERY OF DOCUMENTS The SON has about 13,000 EXCHANGE OF RELEVANT DOCUMENTS documents that have been reviewed, BETWEEN PARTIES, SO THERE ARE NO scanned and key-worded. As the process COMPLETE SURPRISES AT TRIAL continues, new documents may come up and will need to be disclosed EXAMINATIONS FOR DISCOVERY EACH PARTY IS ENTITLED TO ASK Because the claims are QUESTIONS OF OTHER PARTIES ABOUT historical and document driven, all IN ANYTHING RELATED TO THE CASE AND parties agreed to do discovery in writing, PROGRESS EVIDENCE SHARED versus questioning witnesses

STEP 1 All parties draft and exchange questions - for example: • What were the intentions of the parties leading up to the COMPLETE negotiations of Treaty 72? • How was control exercised by the SON in the region? All questions have been asked, STEP 2 and the answers are in the SON’s IN documents, but experts may be All parties answer the questions consulted to fill in some gaps to make PROGRESS sure nothing is missed STEP 3 Parties may make motions in court about whether the answers are proper and sufficient

TRIAL THE PARTIES SET OUT THEIR CASES THROUGH EVIDENCE AND LEGAL ARGUMENT BEFORE A JUDGE, WHO WILL DECIDE THE MATTER