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This document has been submitted by:
Roger Tottman 

                          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 
          - 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 
          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 
          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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