/Americas/nawashbk.txt
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DOCUMENT: NAWASHBK.TXT
This document has been submitted by:
Roger Tottman
BACKGROUND TO THE NAWASH SAUGEEN BREACH OF TRUST SUIT
BY ROGER TOTTMAN, BA
DEC 1994
How I loathe the term "Indian". . . "Indian is
a term used to sell things -- souvenirs,
cigars, cigarettes, gasoline, cars. . . .
"Indian is a figment of the white man's
imagination.
- Lenore Keeshig-Tobias, Nawash-Saugeen Ojibway, 1990
. . . will not be molested or disturbed upon
any pretence whatever upon any lands whatever
that had not been purchased from them by the
Crown. . .
Royal Proclamation 1763
The home of the Nawash and Saugeen Ojibway First
Nations is on the Bruce Peninsula in the Province of Ontario
in central Canada. The area is located some 250 miles North
East of Detroit and has been a tourist destination for
people from the central United States and southern Ontario
for many years. It is an area of spectacular beauty with
high limestone cliffs on its East side, this is the
northernmost part of the Niagara escarpment, and wide sandy
beaches on the West. With a shoreline over 500 miles long it
is the breeding ground for over 170 species of birds and
more than 40 species of wild orchids. Its woods and inland
waters are home to grouse, rabbits, ducks and Canada geese
along with white tail deer and black bears. The surrounding
waters still have large populations of steelhead, hybrid
lake trout, chinook salmon, pike, bass and perch.
All this belonged to the Nawash and Saugeen people
until the treaty of 1854. Since that time they have been
confined to two small reserves on each side of the peninsula
and in recent years many rights, included in that treaty,
have been infringed.
During the early colonial period the British Crown had
no particular policy towards the native peoples. The
attitude was one of pragmatism. Do what you had to do to
accommodate these people in such a way that their military
allegiance was assured and the supply of resources to the
mother country was maintained. In many cases the aboriginal
people were stronger militarily than the few British
regulars and the poorly trained local militia. What is
certain is that during the period 1815-50, both the
government and the settlers viewed the native people with
suspicion. This was the era of the Zulu War (1838) and the
Indian Mutiny (1857). It was also during this period that
the colonists began to construct railways and canals to move
the resources, particularly Ontario wheat, to market.
The net effect of all this was to provide great
mobility for incoming settlers and settlers needed land. To
maintain some semblance of legality treaties were signed and
Native People confined to reserves where they became
isolated for large parts of the year. Having lost their
economic base their culture began to deteriorate and this
coupled with disease almost destroyed them.
The instrument to achieve this was the Indian Act of
1876, passed nine years after Canada's Confederation. This
Act fragmented the native population into legally distinct
group separating men, women and children and restricting
them to different rights and obligations. Over the years the
Act was fine tuned to give the government greater control
over native education, morality and land but in all cases
the main objective was the destruction of native culture and
the assimilation of native people into Canadian society
although as an underclass. No native could vote unless he
severed all ties with the native community. During the
nineteen twenties some First Nations, notably the Mohawks of
the Six Nations, attempted to organize politically and take
their case to the League of Nations. Canada prevailed on
Britain to have the case dismissed from the League's agenda
and passed legislation banning native political
organizations and prohibiting natives from seeking redress
through Canadian Courts. This prohibition was finally
repealed in 1951 and Canadian First Nations recognized as
Canadian citizens and allowed to vote in 1960.
These events occurred during a period of rapidly
expanding technology. That affected almost every aspect of
human life from transportation to weapons. In the process
Canada's aboriginal people lost over one hundred years of
advancement, perhaps by chance but more likely by design.
Those years transformed the settlers from dependence on
aboriginal people to the strength to overwhelm them. Now
some of these peoples are seeking a new and innovative way
to regain some of the material and cultural assets that have
been lost since 1854. They have begun to regain their
cultural identity and to relearn their language. This is
about one First Nation that has chosen to use the law in an
attempt to regain a small part of its cultural and economic
inheritance.
In what is perhaps the most unusual land claim in
Canada to date two Ontario First Nations are seeking 55,000
acres and $90 billion in compensation. On May 27th 1994 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 affect is the return of
unsold road allowance, particularly "shore road allowance."
For readers unfamiliar with this term, this is briefly
what it means. It was the practise of the original surveyors
in the Province of Ontario to leave a 66ft. 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 66ft. strip as their property
although they held no patent to it. Over the last fifty
years many people have built expensive homes on the shore
road allowance. Recently some municipalities, who received
the rights to the shore road allowance from the province
have begun to sell the land for $1.00 plus legal fees or in
some cases trade the shore for another 66ft. 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 Nawash and Saugeen claim to this allowance. The lawyer
for the Township and OFAH, 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.
In August 1994 I traveled to Cape Croker on the Bruce
Peninsula, the home of the Nawash First Nation, to interview
Darlene Johnston. Professor Johnston, an Ojibway, is on
leave of absence from the Faculty of Law at the University
of Ottawa and is the Land Claims Coordinator for the Nawash
and Saugeen Ojibway.
Ms. Johnston says "that 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 and then only if the Natives wanted
to dispose of the land. The meeting on Manitoulin at which
the Saugeen and Nawash Ojibway signed the 1836 Treaty was
not called for the purpose of land surrender. During this
meeting Sir Francis Bond Head, the Lieutenant Governor of
Upper Canada told the meeting that he "could not protect all
their lands from the encroachment of white settlers but if
they surrendered the lands to the south the peninsula would
be protected." This Treaty, known No. 45 1/2 resulted in the
loss of one and a half million acres of the Saugeen
traditional territory just south of what-is now the Bruce
Peninsula. In return for surrendering this land, the First
Nations received 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 becoming aware of continuous encroachment and
were nervous enough about the intentions of the government
in Canada to seek a written confirmation of their lands from
Queen Victoria."
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 a seven-mile limit out into the
waters around the Peninsula. In an 1851 treaty the Saugeen
Ojibway surrendered a half-mile 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 local historian of the times, states that the
road was not built because the Indian Department sold the
land to speculators.
Ms. Johnston continued saying "by 1854 the Saugeen
Ojibway were under pressure to cede the Bruce peninsula.
During negotiations the Crown negotiators threatened to
assume absolute control of the Saugeen Ojibway and further
breached the 1763 proclamation and the 1850 Act to protect
Native Rights. By Treaty No. 72, signed in 1854, the Saugeen
Ojibway ceded the Saugeen (Bruce) Peninsula (500,000 acres)
except for specific reservations. However, in negotiations,
the government violated both the Royal Proclamation of 1763
and the Indian Protection Act of 1851. 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 distribute 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 (Canada and Ontario)
to resolve issues from the 1836 and 1854 Treaties. These
negotiations stalled in 1993. Therefore in May 1994 the two
First Nations filed a claim for BREACH OF FIDUCIARY
OBLIGATIONS. The claim states that the Crown (ie. 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 obligation to them
and that because the Crown negotiators threatened to assume
absolute control of the Saugeen Ojibway they significantly
misrepresented the benefits of the Treaty for the Saugeen
Ojibway. The Crown stated that it was unable or unwilling to
protect the Saugeen Ojibway from encroachments by whites.
The Crown negotiators made no attempt to advise the Saugeen
Ojibway of their rights. They conducted negotiations in a
way that effectively excluded those of the Saugeen Ojibway
known to oppose the Treaty. 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 lands.
Darlene Johnston used the example of listing your farm
with a Real Estate agent. You have no reason to suspect this
person is 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 relatives for less than market value
and you receive none of the proceeds.
According to Darlene Johnston, "That doesn't mean we
are going after land already patented, so people in the
Bruce and cottage owners 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 the court to
compensate us for losses resulting from the bad faith of the
Crown. Compensation might take a number of forms, the return
of unpatented lands, including road allowances, lands
currently owned by Canada or Ontario, financial compensation
for lands that were sold but cannot be returned to the First
Nations because they are owned by private parties and
financial compensation for the loss of use of lands in the
Bruce Peninsula since 1854. 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 preparation of this case has taken thousands
of hours of work by members of the Saugeen Ojibway
community. It involved doing a title search on all the land
confirmed as belonging to them in Queen Victoria's Royal
Declaration lot by lot. From this the extent of the unsold
land was established and added to the land known to be held
by the government. The claim runs to over 500 pages.
The research work and the preparation of the claim
seems to have given the whole community a new sense of
purpose as if they had suddenly turned a corner and could
now see light after years in a dark tunnel. They have re-
instituted healing ceremonies in a new building built for
that purpose and people from other First Nations come to
reap the benefit from these.
This could possibly turn out to be one the most
significant civil suits in Canadian legal history with
implications throughout Ontario and other provinces covered
by treaty. The fiduciary obligations of the Federal
Government to First Nations were established in a 1984
Supreme Court of Canada ruling in favour 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 500,000 acres for 140 years. The claim is
expected to go to trial in the fall of 1995.
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