Bands claim water rights

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The Saugeen Ojibway have filed a huge new claim for title to a vast expanse of water and lakebed on Lake Huron and Georgian Bay.

"This claim is part of a long-term plan to return our people to complete self sufficiency by righting one of the wrongs of history," said Ralph Akiwenzie, chief of the Chippewas of Nawash First Nation.

The legal basis of the claim is that the Chippewas of Saugeen First Nation and the Nawash First Nation never signed treaties that dealt with their territory under those waters.

The claim covers a huge area of Lake Huron from south of Goderich, across the lake to the United States border, around the Bruce Peninsula and east to the middle of Georgian Bay, and south to the southernmost point of Nottawasaga Bay.

"This claim is a natural progression of how we have always felt about this area of the world and now we believe we have the evidence to test that it court. We owe it to our people to correct an old injustice," said Saugeen First Nation Chief Randall Roote.

If the claim succeeds, it could mean that anyone who uses the territorial water could be subject to a fee.

It also means that the bands would own mineral rights to the lakebed if oil or gas were ever discovered there, and possibly even the salt in the salt mine under the lakebed near Goderich, said Akiwenzie.

"We don't want to make the idea of charging a fee to use the water the focal point of the claim, but yes, that's one of the things we are looking at," said Akiwenzie.

Because of concerns that a big draw on the water could upset the lake's delicate balance, his people have strongly opposed a proposed $100 million pipeline to supply drinking water from Colpoys Bay to Sauble Beach and then Walkerton.

But if the pipeline goes ahead, Akiwenzie would like to see the water taken from traditional waters metered, and a fee paid to the First Nations people.

"Water meters are a common thing, so if they are taking the water, there should be some expectancy that it will be paid for."

The same could apply to a pipeline in Collingwood, where millions of litres of water from Georgian Bay are pumped annually to Alliston about 60 kilometres to the south, to help that community supply the Honda plant.

The legal claim is against Canada as a descendent of the Crown that negotiated treaties with First Nations in Ontario and against Ontario, which has assumed possession of lands.

The First Nations exclusively occupied their traditional territory at the time of the assertion of British sovereignty.

"When First Nations people lose their lands, a good part of their identity of themselves is lost," said Roote.

"From the waters we derived our livelihood by fishing, and activity we have pursued for thousands of years and one that reaches into the core of our culture," said Akiwenzie.

The federal government has filed notice that it intends to defend the action, said Gary Penner, legal counsel to the Attorney General of Canada. On May 9, the government will ask the Superior Court of Justice in Toronto to quash the claim, based on the Great Lakes being navigable waters, said Penner.

"They are shared in common by all citizens, and the law, in our view, precludes exclusive ownership," he said.

The First Nations are asking that the claim be heard at the same time as a Bruce Peninsula land claim filed in 1994. It does not affect land owned by private citizens but it does claim Crown land. In lieu of land available for reparation, the bands are claiming its monetary value plus compensation for loss of its use, plus a sum for punitive damages.

The monetary value of the claim is $90 billion.

Roger Townsend, a lawyer representing the bands in both claims, said that some of the legal issues overlap. There are legal precedents for Aboriginal title being awarded if the Aboriginal people can prove that they had exclusive occupation at the time of British sovereignty, he said.