SON TERRITORY – The Saugeen Ojibway Nation (SON) Joint Council launched an appeal of the Ontario Superior Court decision, released on July 29.
Justice Wendy Matheson denied the SON’s claim about Treaty 72 in 1993 and its claim for Aboriginal title in 2003. The two lawsuits were heard together in one trial.
SON Joint Council has decided to appeal the court’s decision to dismiss the SON’s claim to Aboriginal title and the court’s decision to dismiss SON’s claim about the Crown’s fiduciary duty in the Treaty Claim.
The claims are about SON’s ownership of lands underwater and seeking redress from Canada and Ontario for a broken promise to protect some of SON’s lands.
SON’s claim about ownership of lands underwater is about the title to SON’s traditional homelands that were not surrendered by treaty.
SON’s traditional homelands include the Saugeen (Bruce) Peninsula and about 1.5 million acres of land to the south, 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 asked the court to recognize SON’s Aboriginal title to those waters.
Matheson decided 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 called for evidence about exclusive and sufficient use when the British Crown asserted sovereignty. In this case, that date was 1763.
Although Matheson agreed that there was a lot of evidence about SON’s historical presence on the peninsula and 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 to meet the test.
Matheson decided that the Crown broke its promise to SON made in Treaty 45 ½ to protect the peninsula. She said the Crown could have and should have done more to protect the peninsula for SON. Therefore, breaking this promise was a breach of the Honour of the Crown.
She also said that the Crown breached the Honour of the Crown leading up to the signing of Treaty 72 because its agent threatened to take the Peninsula without SON’s consent.
However, Matheson decided that the Crown did not owe a fiduciary duty to SON and dismissed this part of the treaty claim.
A fiduciary duty is the duty of one party to act in the best interests of another.
Canadian courts have recognized that the Crown has a fiduciary duty to Indigenous peoples, especially when it comes to reserve lands, that is rooted in the Honour of the Crown because the Crown has discretion over and exercises control of those lands.
A fiduciary duty can also arise when there is a commitment by the fiduciary to act in the best interests of the beneficiary and when the beneficiary depends on that commitment to protect their interests.
The fiduciary duty imposes many obligations on the fiduciary, such as loyalty, good faith, and full disclosure.
According to a release from SON, the appeal has been made to the Ontario Court of Appeal. This is the next level of court before the Supreme Court of Canada.
At the Ontario Court of Appeal, a panel of at least three new judges would hear and decide SON’s appeals.
SON’s notice of appeal will be filed with the Ontario Court of Appeal on or before Aug. 30.
There will be community update meetings scheduled for later in September to provide more information about the process.
Cory Bilyea, Local Journalism Initiative Reporter, Wingham Advance Times