Case information

First application: Aboriginal law — Treaty rights — Treaty 72 — Reserve boundary — Treaty set Indian Reserve 29 aside for Saugeen — Chippewas of Saugeen First Nation sought declaration that approximately 1.4 miles of coastline excluded from Reserve forms part of Reserve — Text of Treaty sets eastern boundary as starting from line drawn from spot upon coast about nine miles and a half from western boundary — In performing survey of Reserve boundaries, Provincial Land Surveyor used his discretion to move northern terminus from Lot 31 to road allowance at Lots 25 and 26 to avoid wet land, reducing total coastline of Reserve by roughly 1.4 miles — Town had notice of boundary dispute prior to acquisition of disputed land — Families used disputed land for parking — Whether the lower courts applied correct approach when reconciling Indigenous land rights with the rights of private property owners who have relied in good faith on assurances of title rooted in Crown Patents — Whether one set of rights should prevail automatically — Whether courts should decide on a case-by-case basis — How to achieve reconciliation on these facts — Remedy.<br><br>Second application: Aboriginal law — Treaty rights — Treaty 72 — Treaty interpretation — Proper approach to treaty interpretation — Whether Treaty 72 was subject to translation issue, modifying oral promise or incomplete recording — If so, whether lower courts applied correct approach to interpreting Treaty — Whether trial judge’s formal judgment reflected trial judge’s treaty interpretation.<br>

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Inter alia, Treaty 72 set Indian Reserve 29 aside for the Saugeen. The Chippewas of Saugeen First Nation contended that approximately 1.4 miles of coastline, known as Chi-Gmiinh, (“Disputed Beach”) were improperly excluded from Saugeen Indian Reserve No. 29. Saugeen brought an action seeking a declaration that the Disputed Beach forms part of the Reserve, that no parties have any interest in the Disputed Beach, and that the honour of the Crown and its fiduciary duties were breached by the wrongful demarcation of the Reserve boundaries. It also sought damages for those breaches. The text of the Treaty explicitly describes the western, southern and eastern Reserve boundaries, and implicitly incorporates the shore of Lake Huron into the western Reserve boundary. In relevant part, it reads, “on the east by a line drawn from a spot upon the coast at a distance of about (9½) nine miles and a half from the Western boundary”.

In performing his survey of the reserve boundaries in 1855, the Provincial Land Surveyor encountered a concavity which meant that the “spot upon the coast” was located on wet sand. He used his discretion as a surveyor to move the northern terminus from Lot 31 to the road allowance at Lots 25 and 26, planting the post 1.5-2 chains from the water’s edge, a “chain” being approximately 20 metres, to protect it from the lakeshore. This reduced the total coastline of the Reserve by roughly 1.4 miles.

The trial judge found that the northern terminus of the eastern boundary of the Reserve was fixed approximately 1.4 miles south of the place where it should have been located by the Provincial Land Surveyor. In siting the northern terminus where he did, the Provincial Land Surveyor deprived Saugeen of part of their unceded coastline. The Imperial Crown acted dishonourably and breached the Crown’s fiduciary duty to Saugeen by failing to properly demarcate the Reserve boundaries to include the Disputed Beach, then by failing to protect and preserve Saugeen’s unceded land in its entirety. Saugeen’s claim to the Disputed Beach was neither barred nor extinguished by any defences, including laches or the bona fide purchaser for value.

The Court of Appeal dismissed the appeals of Ontario, the Town and the Families, and allowed Canada’s cross appeal.