The newly updated 'Welcome to Saugeen Beach' sign after the local Saugeen First Nation won a land-claim battle two years ago.Cheree Urscheler/The Canadian Press
When the large, red-lettered sign that for decades had welcomed visitors to Sauble Beach, Ont. – a popular 11-kilometre stretch of sand on Lake Huron – was changed to read “Welcome to Saugeen Beach” earlier this summer, it was stating a legal fact. But it still rankled some locals in this small cottage community, about three hours from Toronto.
After a land-claim battle that dates back to the 1990s, the local Saugeen First Nation won a victory two years ago. It convinced a judge that the area’s official map had wrongly left 2.4 kilometres of the north end of the beach out of the reserve lands promised in its 1854 treaty with the Crown. The federal government had supported the Saugeen and the ruling was upheld by the Ontario Court of Appeal last year.
On Thursday, the Supreme Court of Canada will announce whether it will hear an appeal from the local municipality, the town of South Bruce Peninsula – which had owned much of the disputed stretch of beach – and a handful of private landowners who, according to legal filings, are the first in Canada to be dispossessed of real estate they thought they owned in a First Nations treaty case.
Lawyers for the town and some of the landowners, in their submission to the Supreme Court, argue the ruling is also “the first known instance of the federal government abandoning its long-standing policy that private lands will not be taken to satisfy a historical land claim,” and that such decisions “risk sowing uncertainty and unpredictability at the core of Canada’s system of private landholding.”
They say that with many other First Nations disputes pending, Canada’s top court needs to weigh in on how governments and courts resolve conflicts between treaty rights and the rights of “innocent” private property owners, a process governed in Ontario by a 25-year-old decision that essentially allows judges to rule in such disputes on a case-by-case basis.
Earlier: First Nation wins Sauble Beach land claim through Ontario court
“The importance of these questions cannot be understated,” the town’s submission reads. “They strike at the very heart of Canada’s constitutional order, and will be increasingly brought into focus as Indigenous land claims over private property work their way through the courts over the next decade.”
But in filings with the top court, lawyers for the federal government and the First Nation argue just the opposite. Nuri Frame, a lawyer for the Saugeen, disagrees that the case breaks any new ground for other First Nations legal battles.
“This is a case with a very, very specific set of historical facts about very particular language of this treaty and how it delineates the boundaries,” Mr. Frame said in an interview.
“And that’s quite different from some of the broader issues that you see in other parts of the country around the interaction between Aboriginal title and privately held land,” he said, citing a recent landmark decision in British Columbia involving the Cowichan Tribes.
The Supreme Court’s decision on whether to hear the Saugeen case revolves around its determination of whether the issues involved are still unresolved and of national importance. The court says no to more than 90 per cent of applications to have a case heard.
Among the private landowners caught up in the Sauble Beach battle is David Dobson, 63, whose footlongs-and-fries shack on the beach, known as the Crowd Inn, had been a summer fixture there since his father and uncle started it up in 1948. For now, he has abandoned the legal fight, but is still awaiting a yet-to-begin legal process meant to determine his compensation.
“We built something that was an icon on the beach. It created a lot of memories for us, for other people,” Mr. Dobson said in an interview, noting that the band this summer repurposed his building as a surf rescue unit post, after it had sat empty since the 2023 court ruling. “It’s hard to describe in words what it meant.”
Mr. Dobson spent years researching the complex history of the case on his own and argues that the treaty does not grant the First Nation more beach. He also said it was unfair that previous court decisions require judges to favour First Nations in interpreting ambiguities in treaties and to rule in the spirit of reconciliation.
In 2014, a deal that would have handed title to the First Nation but had the beach governed by a joint town-band committee was scrapped after a local election put a new mayor in office who vowed to fight the land claim.
The broader legal landscape for First Nations is shifting as various cases asserting treaty and title rights make their way through the courts. Governments have also found themselves clashing anew with First Nations over legislation passed in Ontario, B.C. and at the federal level to speed up resource projects.
In B.C., a lower court decision from the B.C. Supreme Court earlier this month has reverberated through the province, where unlike the rest of Canada, there are few settled treaties.
In the ruling, the B.C. Supreme Court ruled that the Cowichan Tribes, from Vancouver Island, had established Aboriginal title to roughly 800 acres of land in Richmond, south of Vancouver, where they once had a village to fish during summer.
The court did not rule against private landowners but said land titles held by Richmond and the federal government in the area were invalid and ordered negotiations. The B.C. government has said it will appeal and legal experts say the case will eventually reach the Supreme Court of Canada.