Saugeen Ojibway Nation (SON) Land Claim: Three Big Misconceptions Clarified

Submitted by John Bainbridge

After listening to many people in Tobermory talk about the Saugeen Ojibway Nation (SON) land claim I realised that there are three big misconceptions about the claim. 

-First, that the SON seeks to control the entire Bruce Peninsula plus all the waters surrounding it. 

-Second, that the SON is claiming a huge amount of money ($90 billion) and this will fall heavily on Canadian taxpayers. 

-Third, that the Canadian courts and the Federal Government are being unreasonably lenient with the Aboriginal people. 

I have spent 14 years as a lawyer working on the implementation of the Gwich’in and Nunavut Land Claims Agreements for both government and the Aboriginal organizations and I can say that all three fears are unfounded.

As a matter of principle no Aboriginal land claims in Canada will affect private property acquired “in good faith.” All claims seek title to crown land only – either federal or provincial. This is why road allowances, the Parks and the lake bed are subject to the claim. They are not seeking title to control the waters of the lake. Navigation and boating will not be impacted. Most of the shoreline around Lake Huron and Georgian Bay has a road allowance and that will be subject to the claim but for the most part there is no reason to suppose that public access will change. 

As to the National Parks and the lake bed, who holds title should be a matter of indifference to most people. Who knew that the title to the National Park is held by the Province of Ontario and not the Government of Canada? Parks Canada manages the property on behalf of the Province. That arrangement will almost certainly continue under the SON but, as with many other land claims, there may be a co-management arrangement whereby the two governments and the SON jointly manage the Parks. 

Second, the claim by the SON for $90 billion is a “placeholder,” an arbitrary figure that reserves the right of the litigant to negotiate damages or, in this case, compensation after the validity of the claim has been established. Any litigant who fails to put in a figure for compensation in their Statement of Claim will get zero dollars if they win the lawsuit. If the SON establish that they have a valid claim, a negotiation will begin to determine an accurate figure for compensation that will probably fall far short of $90 billion. The Nunavut Land Claims Agreement is one of the biggest so far in Canada and the compensation they received was $1.4 billion. 

Whatever amount compensation is set at, it will not be a burden on taxpayers. Compensation paid out under the terms of land claims agreements becomes a part of the National Debt. Many people believe that a country’s national debt must be paid for by taxes. This is not true. A national economy is not like a household budget or a business. All that must be paid is the interest and there are several ways to do that besides raising taxes.

The government has recognized since the Calder Case in 1971, that a significant wrong was done to the aboriginal people of this country and that represents a debt incurred. Further, the Calder Case recognized that Aboriginal Title existed and this cast a cloud on the validity of the title to all crown land in Canada. It threw a big spanner in the works of major development projects like James Bay and the Mackenzie Valley pipeline. The wrong, therefore, had to be addressed and the government wanted certainty of land ownership. In 1982, the federal and provincial governments enshrined the existence of Aboriginal rights and treaties in section 35 of the Constitution Act.

On the bright side, all the large sums awarded in compensation for land claims are placed in a trust and invested mostly in Canadian stock, which creates jobs in the southern urban centres of Canada. The yield from the Inuit Trust’s investments varies from year to year but even at 5 per cent, the Trust earned $70 million annually. Each year approximately $24 million was taken by the Inuit organisations to spend on social programs creating more than 200 decent jobs throughout Nunavut, most of which were filled by non-Inuit because they required special skills. The rest of the income was added to the capital in the Trust. If the SON win they will undoubtedly invest the capital and spent part of the income. The money they spend will be a huge infusion of new investment into the local economy of the peninsula creating many good jobs. 

As to the third point, in 1997 the Chief Justice of the Supreme Court of Canada in the Delgamuukw Case (a must read for any one trying to understand Aboriginal claims) made it clear that the federal government should seek reconciliation with the Aboriginal people. The government should use negotiation and avoid resorting to legal action to settle land claims and other aboriginal issues. 

It was the view of the court that the agreements, when settled should endure and that was unlikely to happen if the settlement was imposed by the courts. The Supreme Court has also insisted that the government apply a liberal interpretation to the wording of agreements and treaties because it is now clear that more than a century ago there was very little clarity or mutual understanding about what the treaties meant. 

The important point to bear in mind always, is that the aboriginal people have achieved success by using our English legal system not their own aboriginal laws. They have won cases on the basis of legal principles developed by us and they have won before our judges, most of whom were and are old white men.