The disputed land is approximately 1.4 miles of coastline at Sauble Beach, which is part of the Town of South Bruce Peninsula. The Chippewas of Saugeen First Nation said the beach property, which it refers to as Chi-Gmiinh, was unfairly excluded from their reserve lands after signing a treaty in 1854 that surrendered the Saugeen Peninsula, excluding five reserve territories.
Last year, an Ontario Superior Court judge ruled the beach property had been improperly surveyed and removed from reserve lands. She also found the Crown had acted dishonourably and breached its fiduciary duty to Saugeen by failing to protect the band’s treaty rights (Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town), 2023 ONSC 2056).
And now the Ontario Court of Appeal has dismissed numerous appeals of that decision launched by the town, the province and area landowners. The court rejected an argument the trial judge granted a remedy that Saugeen and the federal government “neither pleaded nor asked for” — namely, that moving the boundary of the reserve further east would affect an unknown number of private landowners whose properties abut or lie close to the current boundary, many of whom were not parties to the litigation.
“We do not interpret the trial judge’s reasons as implying that the entire eastern boundary must now be moved further east,” the court wrote. “Saugeen’s case is and always has been about the interpretation of the treaty [and] whether the valuable fishing landing ground fronting on Lake Huron that was reserved from surrender … was and continues to be reserved for [its] sole use and benefit.”
The court also rejected arguments the trial judge misapplied the principles of treaty interpretation, namely she erred in law by choosing an interpretation of the treaty that favours Saugeen rather than choosing an interpretation that best reconciles the interests of both Saugeen and the Crown and gave excessive weight to the treaty text.
But the court did find in favour of area landowners that argued the trial judge had been wrong in concluding they couldn’t use the “bona fide purchaser” defence because they inherited their properties rather than purchased them — although it also added this would not affect the ultimate outcome of the case.
“We agree with [the landowners] that the trial judge’s conclusion leads to a perverse result, in that it would encourage a claimant to wait for a current bona fide purchaser to pass away before commencing their claim against the beneficiaries of an estate,” the court wrote. “Put simply, the defence is not lost when property passes from an estate to its beneficiaries without consideration.”
An argument that costs in the case should be borne by the federal government because it was solely responsible for determining the boundary lines and the survey was also rejected by the court. But it did allow the federal government’s cross-appeal and referred the question of pre-Confederation liability back to the trial court.
“The allocation of pre-Confederation liability is a matter of constitutional significance. The trial judge erred by making a determination on this question without providing Ontario and Canada the opportunity to make submissions,” the court wrote. “The plain language of the judgment makes it clear that Canada is liable for the pre-Confederation breaches, and Ontario is not. This conclusion precludes all later counterclaims and cross-claims concerning pre-Confederation Crown liability.”
The decision was issued by a three-judge panel of the Court of Appeal consisting of Justices Jonathon George, Jill Copeland and Jonathan Dawe (Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town), 2024 ONCA 884).
In a statement, Chippewas of Saugeen First Nation Chief Conrad Ritchie said the rights of his people “have been vindicated.”
“After generations of struggle, this is a victory that belongs to our entire community,” he said. “Our relationship to our lands and waters is central to our way of life, and Sauble Beach — known to us as Chi-Gmiinh — is an integral part of our community. Out of all our vast territory, this was the place that our ancestors chose to reserve for their future generations when they took treaty with the Crown.”
The Town of South Bruce Peninsula said in a statement it was disappointed with the outcome but respected the judicial process and remains committed to acting “in the best interests of our community.”
“A thorough review of the decision will be conducted, and Council will convene to discuss its implications and determine the appropriate next steps in the coming days,” the statement said. “We thank our residents for their continued patience and understanding as we navigate this matter.”
Ritchie said he acknowledged the importance of Sauble Beach to the larger Ontario community and the importance of working closely with Saugeen’s neighbours.
“As I said after the trial decision, the court has recognized the importance of Sauble Beach to Saugeen First Nation, but we recognize that it is important to others as well, including as a tourist declaration,” he said. “We look forward to continuing the good work that we have done with our neighbours and partners over the past two summers to keep the beach a special place for everyone under Saugeen First Nation’s jurisdiction.”
If you have any information, story ideas or news tips for Law360 Canada, please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.