Gary Penner

The Saugeen Ojibway Nation (SON) brought two actions against the Crown and several municipalities.

In the Aboriginal Title Claim, SON sought a novel declaration of Aboriginal title to a large portion of the submerged lands in Lake Huron and Georgian Bay.

The court dismissed this claim, finding that while SON had a spiritual connection to the water and relied on fishing, they did not establish sufficient and exclusive physical occupation of the claimed submerged lands at the time of British sovereignty in 1763.

In the Treaty Claim, SON alleged that the Crown breached Treaty 45½ (1836) by failing to protect the Bruce Peninsula from settler encroachments, and breached duties during the negotiation of Treaty 72 (1854).

The court found that the Crown breached the honour of the Crown by failing to diligently fulfill its promise to protect the Peninsula from squatters, and by inappropriate conduct during the August 1854 treaty negotiations.

However, the court dismissed the claims for breach of fiduciary duty.

The court also declared that Treaty 72 did not extinguish SON's harvesting rights, which continue on unsold lands and on sold lands where the use is not incompatible with harvesting.

Property-specific remedies and defences were deferred to a second phase of the trial.

The moving party sought leave to appeal an order granting advance costs to plaintiffs in treaty land entitlement litigation involving the size of a reserve under Treaty 9.

The motion judge had found the plaintiffs met the Supreme Court of Canada test for advance costs and ordered the costs initially shared between the federal and provincial defendants, subject to later adjustment.

The court held there was no reason to doubt the correctness of the motion judge’s application of the three‑part test for advance costs or her discretionary decision to award them.

The allocation of costs between the governmental defendants was reasonable at this preliminary stage.

Leave to appeal was denied because the issues were fact‑driven and did not raise matters of public importance or legal development.

Following a prior decision in favour of the plaintiffs on a motion, the court addressed the quantum of costs payable.

The plaintiffs sought approximately $174,000 in costs on a partial indemnity basis, while the federal defendant argued that $75,000 was reasonable.

The court considered the substantial evidentiary record, the importance of the motion, and the extensive preparation required to establish a meritorious claim related to Indigenous rights litigation.

Balancing these factors, the court fixed costs at $125,000 inclusive of disbursements and taxes.

The costs award remained subject to possible re‑adjustment between the governmental defendants at trial.