Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town), 2024 ONCA 884
On December 9, 2024, the Ontario Court of Appeal (ONCA) issued its decision in Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town) (the Saugeen ONCA Decision).1
As detailed below, the Saugeen ONCA Decision affirms the holding in the trial decision (the Trial Decision) that the constitutionally-protected interest of the Chippewas of Saugeen First Nation (the Saugeen) in its unceded reserve lands can displace the fee simple rights of certain private landowners.2 In addition, the Saugeen ONCA Decision:
- reiterates and further clarifies Supreme Court of Canada (SCC) guidance on historic treaty interpretation; and
- touches on a novel and unresolved constitutional issue regarding the allocation of liability for pre-Confederation breaches of Aboriginal rights, referring this issue back to the trial court for determination in the second phase of the litigation (Phase 2).
Facts
The Imperial Crown signed Treaty No. 72 (the Treaty) in 1854 with several First Nations, including the Saugeen. Under the Treaty, the Saugeen surrendered all of its territory except for two reserves.
The Saugeen ONCA Decision concerns the beach at the north end of the Saugeen's Indian Reserve 29 (IR 29), referred to as Chi-Gmiinh or Sauble Beach (the Disputed Beach), and whether the parties intended for the Disputed Beach to form part of IR 29 under the Treaty. The Disputed Beach was originally excluded from the Saugeen's reserve by the Provincial Land Surveyor at the time the boundaries of the reserves were marked. The Imperial Crown later issued Crown patents for the lots along the Disputed Beach, which eventually came into the possession of the Town of South Bruce Peninsula (the Town) and certain private landowners in fee simple.
The Saugeen brought an action against Canada, Ontario, the Town, and the private landowners seeking various declarations, particularly that (i) the Disputed Beach is part of IR 29, (ii) the Crown breached its fiduciary duty and acted in a manner inconsistent with the honour of the Crown by failing to reserve the Disputed Beach for the Saugeen, and (iii) the Saugeen are entitled to exclusive possession of the Disputed Beach.
Trial Decision
The trial judge applied principles of historic treaty interpretation and found that the common intention of the parties under the Treaty was to include the Disputed Beach as part of IR 29. The trial judge held that the Crown acted in a manner contrary to the honour of the Crown and breached its fiduciary duties to the Saugeen by not ensuring that the reserve lands were properly surveyed and failing to protect and preserve the Saugeen's reserve entitlement.
The trial judge also held that the Saugeen's interest in its unceded reserve lands was not extinguished by the Crown patents, nor was its claim to...
