BY ADAM BELL
Saugeen Ojibway Nation traditional territory (photo submitted)
First Peoples Law Report: CKNX Newstoday.ca – The Supreme Court of Canada has denied an appeal by Saugeen Ojibway Nation (SON) to revisit past decisions by lower courts.
This decision effectively upholds earlier rulings from Ontario courts, which found that while the Crown breached the honour of its commitment, it did not have a fiduciary duty to keep its promise to safeguard these lands. This legal journey, which began in 1994, aims to hold Canada and Ontario accountable for failing to protect the Bruce Peninsula as promised to the Saugeen Ojibway people in the early 19th century.
Ogimaaa (Chief) Gregory Nadjiwon of the Chippewas of Nawash Unceded First Nation says they remain determined to seek compensation and substantive remedies for the historical wrongs they argue were inflicted upon them through breaches of treaty obligations, and the honour of the Crown.
“It’s disappointing that the Supreme Court isn’t going to hear from us about the importance of the Crown keeping its treaty promises, about why it is a relationship that should be held to the high standard of a fiduciary obligation, but we will push forward to hold the Crown accountable for their wrongs,” Nadjiwon said.
SON’s legal claim demanded the return of all Crown land on the Bruce Peninsula, compensation for lost lands, and recognition of Aboriginal title over parts of Lake Huron and Georgian Bay. The claim arose from a grievance regarding Treaty 45 1/2, signed in 1836, which saw SON surrender 1.5 million acres of land south of Owen Sound to the Crown. In return, the Crown committed to protecting the Saugeen Peninsula for SON, ensuring it would remain free from settler encroachment. However, as European settlers began encroaching on SON lands, the Crown ignored SON’s repeated complaints and failed to safeguard the Peninsula, eventually compelling SON to sign Treaty 72 in 1854. This treaty allowed settlers onto most of the Peninsula, a decision SON leaders contend was made under duress.
Ogimaa (Chief) Conrad Ritchie of Saugeen First Nation says they will continue to push to hold the Crown accountable.
“We’re hopeful from other recent developments in the law that there must be real efforts and action to make things right when the Crown has breached its honour. We hope that Canada and Ontario will work with us to come to a fair and just resolution. We remain committed to seeking a remedy that reflects our longstanding relationship to our lands and is about making right what we lost,” Ritchie said.
In 2021, Ontario’s Superior Court acknowledged that the Crown broke its promise to protect SON lands, citing a breach in the honor of the Crown. However, the court also determined that the Crown did not have a fiduciary duty (a legal obligation to act solely in SON’s interest) to uphold this promise. SON contended that the Crown’s commitment to protect the Peninsula should have been treated as a fiduciary duty, given the relationship between the Crown and Indigenous peoples in Canada. Ontario’s Court of Appeal upheld this ruling in 2023, concluding that while the Crown broke its promise, it was not obligated to act exclusively for SON’s benefit.
The Supreme Court’s refusal to hear the case has left SON with no further legal avenue to challenge the absence of fiduciary duty. SON’s attorney, Cathy Guirgis, noted that the Supreme Court provided no reasons for its decision, a standard practice for denied appeals.
The lower courts’ rulings not only dismissed SON’s claim of fiduciary duty but also curtailed its Aboriginal title claims over extensive waters around the Peninsula. The Court of Appeal agreed that SON did not hold Aboriginal title over large swaths of Lake Huron and Georgian Bay but left the door open for SON to pursue title to specific areas, such as waters near Hope Bay. A process for identifying and assessing potential title claims in these waters is now underway, although no hearing dates have been set.