A Superior Court judge reserved her decision on a motion heard Friday in Toronto about whether return of land is an available remedy for 19th -century breaches of the Crown’s honour that she found in the decades-old Bruce Peninsula land claim.

Saugeen Ojibway Nation is seeking compensation in the form of returned peninsula lands owned by Canada or Ontario, but not privately held land, and compensation with money.

This remedy would address mainly the breach of honour by the Crown by failing to stop settlers from moving to the peninsula to protect it from squatting and encroachment as promised in 1836 in Treaty 45 ½, SON lawyer Cathy Guirguis said at the hearing.

Treaty 45 ½ involved SON’s surrender of 1.5 million acres of land south of the peninsula for settlement. It reserved for SON what then was the Saugeen Peninsula, and promised economic assistance and protection from settler encroachment on the peninsula “forever.”

When the Crown broke its promise to protect the peninsula for the First Nations, saying it couldn’t stop white settlement, SON then signed Treaty 72 in 1854, which created the reserves on the peninsula that remain today.

Justice Wendy Matheson heard arguments from Canada, Ontario and SON and reserved her decision to an unspecified date.

The Toronto courtroom included SON members, including Chippewas of Nawash Unceded First Nation Chief Veronica Smith and Saugeen Ojibway Nation Chief Sonya Roote. More were watching on Zoom.

Outside the Osgoode Hall courts before the hearing, SON members and others gathered for a sunrise ceremony at 7:30 a.m., including a pipe ceremony and water ceremony, then held an “Honour the Treaty” rally and press conference.

During the four-hour hearing, Canada argued a motion that giving land back is not an available legal option, and a lawyer for Ontario agreed.

Ontario has identified 651 parcels of land on the peninsula subject to the claim, which include the Bruce Peninsula National Park. There are 184 federal parcels of Crown land, 281 provincial parcels of Crown land, and 186 unpatented parcels involved.

The Ontario lawyer said as a matter of law, lands owned by Ontario couldn’t be ordered returned, though Guirguis said its hoped the province would voluntarily transfer them if the court granted a requested declaration of entitlement which was described as unenforceable. Matheson sought written submissions to better understand this.

Guirguis said testimony on Anishinaabe law from SON members about the importance of receiving the land to make amends must be allowed to help the court’s legal analysis of whether to award land, in light of recent Supreme Court of Canada decisions.

Matheson canvassed whether SON’s relationship with the Crown could be repaired with money alone, noting the claim was valued at $90 billion, to expedite the resolution, given the case has dragged on so long. A trial to establish a remedy would be five years away, and last longer if there were appeals, she said.

“For Saugeen Ojibway, the preference is the land. The prioritization has been on the land and the relationship with the land,” Guirguis said.

Guirguis said the SON community wants the land under a constructive trust arrangement in which the lands would be held in trust for the First Nations’ benefit. She said since negotiations failed, SON wants a trial to determine an appropriate remedy.

In 2023, the Court of Appeal for Ontario upheld a 2021 decision by Matheson that the Crown breached Treaty 45 ½ with the First Nations between 1836 and 1854, which included a promise to keep white settlers from moving to the Saugeen Peninsula. This breached the Crown’s honour.

Matheson also said in her decision that “some of the Crown negotiation conduct in 1854 breached the honour of the Crown.”

She found the Crown’s honour was breached when a Crown Indian agent told SON ancestors in surrender discussions that the government would not keep its treaty promises and would take the Saugeen Peninsula without SON’s consent, which was contrary to Treaty 45 ½ and Crown policy.

Matheson found the Crown didn’t follow through on that remark and it didn’t influence SON from signing Treaty 72, which gave up most of the Bruce Peninsula except for reserve lands

SON filed its initial treaty claim in 1994, seeking $80 billion in compensation, plus $10 billion in punitive damages, as well as the return of all Crown land not in the hands of third parties, including the Bruce Peninsula National Park.

But Matheson dismissed at trial SON’s contention that the Crown had a fiduciary duty to protect the peninsula.

The Court of Appeal of Ontario agreed and found the treaty promise cannot be construed as an undertaking by the Crown to forsake the interests of all others in the province and act exclusively for SON’s benefit, “which is an essential element of the conventional fiduciary test.”

“The nature of the promise here did not amount to direct administration of access to SON’s lands. The Crown did not control access to those lands and was not the gatekeeper,” the appeal court said.

The appeal court also agreed with Matheson’s finding that SON had no valid claim to Aboriginal title over large areas of Lake Huron and Georgian Bay.

Matheson found that SON has an established Aboriginal right to fish in their traditional fishing grounds on both sides of the peninsula, but not to the lakebed of a large part of Lake Huron, including about half of Georgian Bay, surrounding the peninsula.

“Significantly, this would mean that SON has the right to exclude all other people from that part of Lake Huron and Georgian Bay, including for passage through the area,” she wrote in her trial decision.

But the Appeal Court said SON might have a title claim to smaller areas, such as the waters around Hope Bay on the east shore of the peninsula. The appeal court sent the title claim back to the trial judge to come up with a fair process for deciding which area waters might be recognized as having Aboriginal title. SON has since abandoned that avenue of recourse, arguing it’s owed full Aboriginal title.

Guirguis noted to the court that Friday was also “Duluth Day,” marking the Oct. 2, 1995 Duluth Declaration, when Saugeen First Nation’s chief at the time, Richard Kahgee, claimed Saugeen’s sovereignty over the waters around the Saugeen/Bruce Peninsula, including fisheries, lands and minerals, at the International Joint Commission, based in Duluth, Mich.

The IJC is an independent, joint Canada/United States dispute resolution agency concerned with waters that span the border between both countries. It works in consultation with Indigenous people and others in making recommendations to governments.