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Chippewas of Saugeen First Nation Et Al. V. the Attorney General of Canada Et Al., 2021 ONSC 4181 COURT FILE NOS.: 94-CQ-050872CM and 03-CV-261134CM1 DATE: 20210729

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Chippewas of Saugeen First Nation Et Al. V. the Attorney General of Canada Et Al., 2021 ONSC 4181 COURT FILE NOS.: 94-CQ-050872CM and 03-CV-261134CM1 DATE: 20210729 CITATION: Chippewas of Saugeen First Nation et al. v. The Attorney General of Canada et al., 2021 ONSC 4181 COURT FILE NOS.: 94-CQ-050872CM and 03-CV-261134CM1 DATE: 20210729 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) THE CHIPPEWAS OF SAUGEEN FIRST ) H. W. Roger Townshend, Renée Pelletier, NATION and THE CHIPPEWAS OF ) Cathy Guirguis, Jaclyn C. McNamara, NAWASH UNCEDED FIRST NATION ) Benjamin Brookwell, Krista Nerland, Scott ) Franks, Christopher Evans and Joel Plaintiffs ) Morales, for the Plaintiffs ) – and – ) Michael Beggs, Michael McCulloch, Barry ) Ennis, Carole Lindsay, Alexandra Colizza THE ATTORNEY GENERAL OF ) and Gary Penner, for the Defendant The CANADA, HER MAJESTY THE QUEEN ) Attorney General of Canada IN RIGHT OF ONTARIO, THE ) CORPORATION OF THE COUNTY OF ) David J. Feliciant, Peter Lemmond, Richard GREY, THE CORPORATION OF THE ) Ogden, Julia McRandall and Jennifer Lepan, COUNTY OF BRUCE, THE ) for the Defendant Her Majesty The Queen in CORPORATION OF THE ) Right of Ontario MUNICIPALITY OF NORTHERN ) BRUCE PENINSULA, THE ) Tammy Grove-McClement, for the CORPORATION OF THE TOWN OF ) Defendant The Corporation of The County SOUTH BRUCE PENINSULA, THE ) of Bruce CORPORATION OF THE TOWN OF ) Jill Dougherty and Debra McKenna, for the SAUGEEN SHORES and THE ) Defendant The Corporation of The CORPORATION OF THE TOWNSHIP OF ) Township of Georgian Bluffs GEORGIAN BLUFFS. ) ) Defendants ) Gregory F. Stewart, for the Defendants The Corporation of The County of Northern ) ) Bruce, The Corporation of the Town of CHIPPEWAS OF NAWASH UNCEDED ) South Bruce Peninsula and The Corporation FIRST NATION and SAUGEEN FIRST ) of the Town of Saugeen Shores NATION ) ) ) Plaintiffs ) – and – ) 2 THE ATTORNEY GENERAL OF ) HEARD: April 25, 29-30, May 1, 13-16, 22- CANADA and HER MAJESTY THE ) 24, 27-31, June 3-4, 10-11, 21, 28, July 8-10, QUEEN IN RIGHT OF ONTARIO ) 12, 15-16, 19, 22-26, Aug. 12-16, 19, 20-21, ) Sept. 16-18, 30, October 1-4, 7, 11, 21-24, Defendants ) 30-31, Nov. 1, 18-22, 25-26, Dec. 9-11, 16, ) 2019, Jan. 8, 13-17, 20-22, Feb. 3, 6, 10, 12- ) 13, 18, 20-21, March 3-6, 9-12, April 28-29, ) October 19-23, 2020, written submissions ) July 22, 23, 26, 2021 REASONS FOR JUDGMENT Table of Contents Overview ....................................................................................................................................................... 4 Part 1 - Scope of the claims, phasing and overview of the trial evidence ..................................................... 6 Scope of the Aboriginal Title Claim ....................................................................................... 6 Scope of the Treaty Claim ...................................................................................................... 7 Phase 1 of a two-phase process ............................................................................................... 8 Overview of the evidence ....................................................................................................... 8 Part 2 - Overarching legal principles .......................................................................................................... 10 Burden of proof and approach to the evidence ..................................................................... 10 Oral history ........................................................................................................................... 11 Evidence of domestic law ..................................................................................................... 14 Presumption of regularity ..................................................................................................... 14 Experts’ use of secondary sources ........................................................................................ 15 Evidence of Indigenous Customary Law .............................................................................. 16 Constitutional framework ..................................................................................................... 16 Part 3 - Aboriginal Title Claim ................................................................................................................... 17 Analysis of whether there is an Aboriginal right to title in the lake bed .................................. 19 SON’s specific claim ................................................................................................................ 23 SON’s distinctive culture ...................................................................................................... 28 SON’s historical practices, customs or traditions ................................................................. 32 Translation into a modern legal right .................................................................................... 42 The Tsilhqot’in Nation test ....................................................................................................... 54 SON occupation (including continuity) and exclusivity in the claim area ........................... 58 Application of Tsilhqot’in Nation test .................................................................................. 91 3 Changing the claimed Aboriginal right..................................................................................... 96 Aboriginal title to Chantry Island and Rabbit Island ................................................................ 97 Part 4 - Treaty Claim ................................................................................................................................... 99 The issues in the Treaty Claim .................................................................................................. 99 Treaties and treaty interpretation ........................................................................................ 100 The honour of the Crown .................................................................................................... 102 Treaty-making and Crown policy ........................................................................................... 106 Treaties 45 and 45½ ................................................................................................................ 109 The protection of the Peninsula between 1836 and 1854 ....................................................... 120 Squatting and the tools available to address squatting............................................................ 123 Crown actions that were or could have been taken to protect the Peninsula .......................... 135 Squatting escalating in the 1850s due to the pressure for land ............................................... 144 Breach of the encroachment clause and the honour of the Crown ......................................... 145 Treaty 45½ did not create a reserve ........................................................................................ 149 SON’s objections to the negotiation process leading to Treaty 72 ......................................... 153 Negotiations leading up to Treaty 72 .................................................................................. 153 The negotiation of Treaty 72............................................................................................... 158 Breach of the honour of the Crown..................................................................................... 168 Whether a fiduciary duty arose to supplement the treaty and honour of the Crown .............. 170 Crown immunity defence ........................................................................................................ 178 Laches defence ........................................................................................................................ 178 Treaty 72 impact on SON harvesting rights ........................................................................... 187 Part 5 - Municipal defendants ................................................................................................................... 195 Part 6 - Orders ........................................................................................................................................... 201 Schedule “A” – Expert Witnesses ............................................................................................................. 203 Expert witnesses called by SON ......................................................................................... 203 Expert witnesses called by Canada ..................................................................................... 206 Expert witnesses called by Ontario ..................................................................................... 209 4 W. MATHESON J.: Overview [1] The plaintiffs in these lawsuits are two First Nations who have, for many years, lived on or near the Bruce Peninsula. They are the Chippewas of Nawash Unceded First Nation and the Saugeen First Nation. These First Nations refer to themselves together as the Saugeen Ojibway Nation or, in this litigation, SON. [2] In SON’s first lawsuit, the Treaty Claim, SON has shown that the pre-Confederation Crown breached its obligations to SON’s ancestors in the 1800s. [3] The Treaty Claim focuses on two treaties that are now known as Treaty 45½ and Treaty 72. Ancestors of SON entered into Treaty 45½ in 1836. In that treaty, they surrendered about 1.5 million acres of land south of the Peninsula. The main benefit that they received, in return, was the Crown’s promise to protect their
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