In what is perhaps the most unusual land claim to date, two Ontario First Nations are seeking 22,000 hectares and $90 billion in compensation.
On May 27 of this year, the Saugeen and Nawash Ojibway filed a statement of claim against Ontario and Canada for a breach of their fiduciary obligations (trusteeship to the First Nations in the negotiation and signing of the Treaty of 1854.)
The Saugeen and Nawash Ojibway are also asserting ownership of road allowances currently vested in nine municipal defendants in Gray and Bruce Counties.
The part of the claim that is likely to have the most far-reaching effect is the return of unsold road allowance, particularly shore road allowance.
For readers unfamiliar with this term, it was the practice of the original surveyors in Ontario to leave a 20-metre strip of land around all coastlines of major lakes. This strip is known as a "shore road allowance." Over the years, as roads were built they tended to follow the easiest terrain rather than the shore, consequently the owners of the land inside the allowance began to view the 20-metre strip as their property although they held no patent to it.
Many have built expensive homes on it. Recently some municipalities, who received the shore road allowance from the province, have begun to sell the land for $1 plus legal fees, or in some cases trade the shore for another 20-metre strip.
In October 1993 the Ontario Federation of Anglers and Hunters, acting on behalf of The Keppel Township Shore Line Owners Association, tried to prevent a court from hearing the claim to this allowance.
Their lawyer, Don Greenfield, suggested that if the First Nation is successful at trial, they will bar all access to the water.
Chief Ralph Akiwenzie of The Nawash Nation said "this was a flagrant attempt to inflame public opinion against the First Nation. The idea of the Saugeen Ojibway barring access to the water to anyone, including sport fishermen, is ludicrous."
Greenfield was unsuccessful and Justice Robert Zelinski granted the First Nation the right to litigate their claim.
Darlene Johnson, land claims co-ordinator for the Nawash and Saugeen Ojibway, says "the royal Proclamation of 1763 guaranteed First Nations territories and that the surrender of land could only take place at meetings specifically called for that purpose.
"The meeting on Manitoulin at which the Saugeen and Nawash Ojibway signed the 1836 Treaty was not called for the purpose of land surrender," said Johnston, an Ojibway professor on leave of absence from the Faculty of Law at the University of Ontario.
"This Treaty resulted in the loss of one-and-a-half million acres of their traditional territory just south of what is now the Bruce Peninsula. In return for all that land, the First Nations got a promise that Canada would protect their fishery as well as their new home, the Bruce Peninsula.
"However, by 1847 the chiefs and councils of the Saugeen Ojibway were nervous enough about the intentions of the government in Canada to ask for a confirmation of their lands from Queen Victoria," Johnston said.
In her Royal Declaration of 1847, Queen Victoria confirmed the Saugeen Ojibway lands consisted of the entire Saugeen Peninsula (Bruce Peninsula,) north from a line joining Southampton and Owen Sound. The Saugeen Ojibway territories also included an 11-kilometre limit out into the waters around the peninsula.
In an 1851 treaty, the Saugeen Ojibway surrendered a one-kilometre-wide strip stretching between their two largest settlements at Owen sound and Southampton in the belief that the government would build a road and improve communications between the two communities. The road was not built until many years later. The Rev. C. Vandusen, a historian of the times, states that the road was not built because the Indian Department sold the land to speculators.
"By 1854 the Saugeen Ojibway were under pressure to cede the Bruce peninsula. By treaty No. 72, signed in 1854, the Sugn (Bruce) Peninsula (200,000Hectares) except for specific reservations. However, in negotiations, the government violates both the Royal Proclamation of 1763 and the Indian Protection Act of 1851," said Johnston.
"The evidence of the Crown's breach of its obligations to the Saugeen Ojibway is the following: The Crown agrees to sell the surrendered land, invest the proceeds (minus surveying and auction costs) and distributes the interest to the Saugeen Ojibway.
"The 1855 Order in Council, by which the Government accepted the terms of the surrender, states clearly the Crown received the lands 'in trust' In other words, the Crown accepts responsibility to sell the lands for the benefit of the Saugeen Ojibway. "However, certain lands are left unsold although the government promised to sell all the lands for the benefit of the Saugeen Ojibway. These lands, lake and river beds, shore road allowances, other road allowances and certain lots throughout the Peninsula are the basis of the claim."
From 1979 to 1993, the Saugeen Ojibway began a long series of negotiations with the Crown to resolve issues from the 1836 and 1854 Treaties. These negotiations stalled in 1993.
In May 1994 the two First Nations filed a claim for breach of fiduciary obligations. The claim states that the Crown (i.e. both Ontario and Canada) has obligations to First Nations much as any trustee has toward those on whose behalf it acts. The Saugeen Ojibway charge that in the signing of the 1854 Treaty, the Crown breached its fiduciary obligations to them.
The Crown said it was unable or unwilling to protect the Saugeen Ojibway from encroachments by whites.
The Saugeen Ojibway are not saying the treaty is legally invalid, but they are saying the situation deserves remedy, and that remedy should include the return of the unsold lands as well as compensation for surrendered land.
Darlene Johnston used the example of listing your farm with a real estate agent. Your have no reason to suspect this prso s not honest because there are laws governing his actions that are designed to protect your interests.
But instead of selling it, he lives on it for years. In fact, he never does get around to selling all of it, and the parts he does sell, he sells to relative for less than market value and you receive none of the proceeds.
"That doesn't mean we are going after land already patented for, so people in the Bruce needn't fear for the homes and land they bought in good faith. It does mean, however, that if we are successful at trial, we will be asking for court to compensate us for losses resulting from the bad faith of the Crown," Johnston said.
"The goal is to return the First Nation to the position we would have been in if the treaty had never been signed, at least as much as is legally possible."
The fiduciary obligations of the federal government to First Nations were established in 1984 Supreme Court of Canada ruling in favor of the Musqueam Nation of British Columbia. The Musqueam claimed that the Department of Indian Affairs in 1944, had leased part of their reserve, for peppercorn rent, to a white group for the creation of a golf course.
The Supreme Court awarded the First Nation $6 million. In this case the claim is for "loss of use" of 200,000 hectares for 140 years. As of Oct. 28, 1994, one defendant, the Township of Amabel, has filed a defence. The remaining 12 have filed notice of intent to file.