Trial starting on Indigenous bands’ claim to Lake Huron, Georgian Bay

TORONTO — A complex trial involving a novel claim to a large swath of Lake Huron lake bed and allegations of broken promises is set to kick off in Toronto today.

The trial pits the Saugeen Ojibway Nation against the federal and Ontario governments.

The two aboriginal groups who make up the Saugeen Ojibway Nation launched their claims about two decades ago.

They say their traditional territory includes what is now the Bruce Peninsula and lands south stretching from Goderich, Ont., to Collingwood, Ont.

The territory, they assert, includes most of the waters of Georgian Bay and Lake Huron.

The case will likely take years to wind its way through the court system.

“We’re working on the schedule,” lawyer Cathy Guirguis, who represents the Saugeen Ojibway Nation, said in an interview on Wednesday. “What’s been requested of the court is over 200 days.”

Essentially, two separate claims by the Saugeen Ojibway Nation — known as SON — against Ottawa and Ontario are in play.

The first, which appears to be unprecedented in Canada, involves recognition of aboriginal title to land underwater that forms part of the Indigenous groups’ traditional homelands that weren’t surrendered by treaty. As far as she knows, Guirguis said, the courts have never ruled on title to lakes.

Chief Lester Anoquot of Saugeen First Nation said the issues at stake are of profound importance.

“This trial is not only a watershed moment for SON seeking recognition of our rights, but also for Indigenous peoples and aboriginal rights across Canada,” Anoquot said in a statement.

“This is about legally recognizing how integral our waters are to us as Anishinaabe people, and how the relationship we have with, and the responsibilities we have to, our lands and our waters has survived to present day.”

The second claim involves the Bruce Peninsula, which separates Lake Huron from Georgian Bay.

Under a treaty in 1836, SON gave up more than 600,000 hectares of rich agricultural land south of Owen Sound, Ont. In exchange, the claim asserts, the Crown promised under Treaty 45-1/2 to protect forever what is now the Bruce Peninsula from settler incursion. However, just 18 years later in 1854 under Treaty 72, the Crown demanded the surrender of the peninsula on the basis the government could no longer protect the lands from settlers.

SON now asserts that the Crown misled the First Nations and could have protected the peninsula as initially promised. The claim calls for the return of lands on the peninsula still owned by Ontario or Canada or that have not been bought and paid for by third parties. It’s not clear how much of the peninsula could be affected.

Any compensation will be dealt with at a later phase of the trial.

For their parts, the governments maintain they have dealt with the First Nations properly, have lived up to their treaty obligations and deny aboriginal title to the lands exist. They want the claims thrown out.

Currently, court dates have been scheduled through the fall. This week will see two days of opening statements, with a week of evidentiary hearings scheduled for next week in Nawash or Cape Croker. After a week off, the court will then travel for another week of hearings in Saugeen First Nation.

Colin Perkel, The Canadian Press