Saugeen Ojibway go to trial

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A legal move by Ontario and Canada to prevent a title claim of the Chippewas of Nawash Unceded First Nation and the Saugeen First Nation from going to trial has failed a second time. A brief decision without reasons was rendered by Justice P. T. Matlow in Ontario Divisional Court Sept. 15.

The two governments' previous attempt to quash the Aboriginal title claim to a portion of the lakebeds of Lake Huron and Georgian Bay was struck down by the Superior Court of Justice in May. The First Nations' claim was filed Dec. 23 last year.

Their Aboriginal title claim extends from the Maitland River system about 18 km south of Goderich, west to the international border, north to the mid-point between the tip of the Bruce Peninsula and Manitoulin Island, east to the mid-point of Georgian Bay, and south to the southernmost point of Nottawasaga Bay.

Defendants Ontario and Canada argued before Matlow the claim is incompatible with public navigation. Ontario additionally argued that the title claim in the Great Lakes is incompatible with Crown sovereignty over those waters.

Matlow also dismissed Canada's motion seeking leave to appeal to a higher court, which buoyed the Aboriginal side.

"This is the first time a Canadian court has looked at Aboriginal title on navigable waters and they are taking our claim seriously, Saugeen Chief Vernon Roote said upon hearing the judgement, "Now Canada will have a hard time trying to strike down the attempts of other First Nations who are about to bring Aboriginal title claims to trial.

Nawash Chief Ralph Akiwenzie dismissed the idea the ruling will lead to extreme jurisdictional problems on the Great Lakes.

"If we are successful in our claims, I'm confident that the thorny questions of sovereignty and jurisdiction can be worked out through a fair and reasonable dialogue," said Akiwenzie.

The Saugeen Ojibway Nations' case is the first Aboriginal title claim to land under navigable waters ever heard in a Canadian court. If the First Nations are successful, they will hold an absolute right to the lakebed.

That means they would control the harbours and fishing quotas and issue sport and commercial fishing licences. The First Nations have previously stated that public access to beaches would likely not be affected. Local municipalities, howoever, have expressed concern about being able to draw water from Lake Huron if the Native claim succeeds.

First Nations' communications spokesman David McLaren said relations between Natives and non-Natives in the Bruce Peninsula are better than they were in 1995 when there was a backlash to the assertion of Native fishing rights.

"We're not encountering the same outright racism as then, but still people would like to skuttle (our claim to sovereignty)," he said.

He said the key to improved relations was education of the public, but the First Nations don't have the money to do the job. "It is hard to apply for educational money around land claims," McLaren noted.

The divisional court decision clears the way for a trial of the claim to proceed. The lakebed claim represents just part of the Saugeen Ojibway claim for Aboriginal title in the Bruce Peninsula, where a $90 billion treaty-based land claim was initiated in 1994.

In that claim, the First Nations allege the Crown breached provisions of an 1854 treaty that were to protect Native lands from non-Native encroachment. They are claiming financial compensation for loss of land to private ownership as well as punitive damages. They are also seeking ownership of all Crown-held land on the Bruce Peninsula.

It will likely take years to bring the matter to trial, McLaren said following Matlow's decision. Their legal counsel has suggested the lake bed and dry land claims could eventually be heard together.