COURT FILE NO.: 03-CV-253768-CM3 DATE: 20230403

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHIPPEWAS OF SAUGEEN FIRST NATION

Plaintiff

– and –

THE TOWN OF SOUTH BRUCE PENINSULA, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE ATTORNEY GENERAL OF CANADA, BRENDA JOAN ROGERS AND GARY MICHAEL TWINING AS EXECUTORS OF THE ESTATE OF BARBARA TWINING, DAVID DOBSON, ALBERTA LEMON, SAUBLE BEACH DEVELOPMENT CORPORATION, ESTATE OF WILLIAM ELDRIDGE, ESTATE OF CHARLES ALBERT RICHARDS, and THE ATTORNEY GENERAL OF ONTARIO

Defendants

Nuri G. Frame, Marc Gibson and Daniel Goudge, for the plaintiff, Chippewas of Saugeen First Nation

Jonathan C. Lisus, Andrew Winton, Zain Naqi, John Carlo Mastrangelo, and David Ionis, for the Defendants, The Corporation of the Town of South Bruce Peninsula (formerly The Corporation of the Township of Amabel), Alberta Lemon and Brenda Joan Rogers and Gary Michael Twining as Executors of the Estate of Barbara Twining

Robert Ratcliffe, Richard Ogden, Stephanie Figliomeni and James Shields, for the Defendants, Her Majesty the Queen in right of Ontario and The Attorney General of Ontario

Michael Beggs, Janet Brooks, Barry Ennis and Madeline Torrie for the Defendants, Her Majesty The Queen in right of Canada and The Attorney General of Canada

G. Edward Oldfield, for the defendants, Sauble Beach Development Corporation and David Dobson

HEARD: November 23, 24, 25, 26, 29, 30, December 1, 2, 6, 7, 8, 9, 13, 14, 15, 2021; January 4, 5, 6, 7, 10, 11, 12, 13, May 16, 17, 18, 19, 2022

VELLA J.

TABLE OF CONTENTS

THE PROCEEDINGS. 2

THE ISSUES AND RESULT. 3

THE PARTIES. 7

ANALYSIS. 8

1.... What does Treaty 72 Provide with Respect to the Eastern Reserve Boundary and the “Spot Upon the Coast”, and Where did Rankin Place the North Terminus of the East Boundary?. 8

a) The Parties’ Positions. 8

b) The Principles of Treaty Interpretation and the Overarching Principle of Reconciliation. 9

c) The Application of the Treaty Interpretation Principles to Treaty 72. 12

i. The Treaty Text 12

ii. The Treaty as a Whole. 14

iii. The Historical and Ethnohistorical Context 15

iv. The Ethnohistorical Context 16

v. The Archival Record. 20

(a) The Bond Head Treaty No. 45 ½ of 1836. 20

(b) Royal Proclamation of 1847. 21

(c) Half Mile Strip Treaty No. 67 of 1851. 21

(d) Free Trade Agreement of 1854 with the United States. 21

vi. Attempts by the Imperial Crown to Negotiate a Surrender of the Saugeen Peninsula. 22

vii. Summary of the Combined Historical and Ethnohistorical Record Leading to Treaty 72 23

viii. Written Record of the Treaty Negotiations. 25

(a) The Treaty Council – Treaty 72. 25

x. Immediate Aftermath of the Treaty. 29

(a) Rankin’s Preliminary Traverse and Survey : The Historians’ Evidence. 30

(i) Rankin’s Preliminary Traverse – 1854. 30

(ii) Rankin’s Survey. 31

ix. The Public Auction. 36

x. Where did Rankin Mark the North Terminus of the East Boundary of the Saugeen Reserve No. 29?. 37

(a) Introduction and the Parties’ Positions. 37

(b) The Shape of the Coastline at the Disputed Beach at and after 1855 – Geomorphology Evidence. 40

(i) The Expert Witnesses. 40

(ii) Analysis of the Geomorphology Evidence. 42

(c) The Expert Witnesses – Survey and Boundaries. 43

(i) Izaak de Rijcke. 43

(ii) Stephen Fediow.. 47

(iii) Brian Ballantyne. 50

(iv) Conclusion of Expert Survey and Boundary Evidence. 57

(d) Findings: Where did Rankin Mark the North Terminus of the East Boundary?. 60

xi. Subsequent Post-Treaty Conduct of the Parties after the Final Plan of Survey of Amabel Township by Rankin. 61

(a) Trace Map – Boundary Desired by Alexander 61

(b) The Patents of Lots 26 to 31, Concession D, Amabel Township. 62

(i) Richard Simison. 62

(c) Complaints by Saugeen and Crown Responses – 1877-1888. 63

(d) The Subdivisions of Lots 26 to 31. 65

(e) Subsequent Complaints by Saugeen and Crown Responses: Further surveys and boundary investigations. 66

(i) OLS and DLS White’s Survey. 66

(ii) Bellach’s Survey – 1974/75. 68

d) Did Saugeen Receive the Reserve Promised under Treaty 72 When Rankin Altered the Spot upon the Coast in Surveying IR 29?. 69

e) Did the Crown Breach its Fiduciary Duty and/or Act in a Manner Inconsistent with the Honour of the Crown?. 77

xii. Legal Principles. 78

(a) Honour of the Crown. 78

(b) Sui Generis Fiduciary Duty Principles. 80

(c) How and When does the Honour of the Crown Inform The Scope of the Crown’s Sui Generis Fiduciary Duty Owed to Indigenous Peoples?. 82

(d) Analysis. 83

(e) Is the Federal Crown Liable for the Imperial Crown’s Dishonourable Conduct and Breach of Fiduciary Duty in the Circumstances of this Matter?. 86

(f) Conclusion – the Crown Acted in a Manner that was Inconsistent with its Honour and Breached its Fiduciary Duty owed to Saugeen. 88

(g) Did Ontario Act in a Manner that was Inconsistent with its Honour and/or Breach any Fiduciary Duty Owed to Saugeen?. 89

THE DEFENCES. 90

2.... Did the Patents Extinguish Saugeen’s Treaty Right to Land Reserved from Surrender?. 90

a) Interpretation Principles for Patents. 90

3.... Are the Defendant Landowners Bona Fide Purchasers for Value without Notice?. 98

a) The Doctrine. 98

i. Notice Requirement 99

(a) Private Landowners. 100

(i) Twining Estate. 100

(ii) Lemon Family. 101

(iii) Dobson. 102

(iv) The Town. 104

(b) Are the Landowners Purchasers for Value?. 107

(i) Private Landowners. 107

(c) Balancing of Interests under the Principle of Reconciliation in Guiding the Court’s Discretion in Applying this Equitable Doctrine. 108

4.... Statute of Limitations – Is Saugeen Barred from Advancing Its Claim?. 112

a) Analysis. 114

b) Does s. 4 Apply to Claims Seeking Return of Reserve Land?. 114

c) Does Application of the Limitations Act Extinguish Saugeen’s Treaty Interest in IR 29?. 115

5.... Equitable Doctrine of Laches. 117

a) Has Saugeen Acquiesced to the Wrongful Deprivation of Part of their Reserve?. 118

b) Did any of the Defendant Landowners Change Their Respective Positions to Their Detriment? 119

c) The Balance of Justice Favours Permitting Saugeen to Pursue its Claim for Declaratory Relief Against the Defendant Landowners. 120

COUNTERCLAIM OF THE ATTORNEY GENERAL OF ONTARIO AND DEFENCE OF THE TOWN AND ONTARIO.. 121

6.... The Doctrine of Dedication. 123

7.... The Doctrine of Proprietary Estoppel 125

CONCLUSION OF PHASE 1 – DISPOSITION – DECLARATORY RELIEF. 128

reasons for JUDGMENT – PHASE 1

The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions.[^1]

[1] In 1854, the Imperial Crown was desperate to secure a surrender of what was known as the Saugeen Peninsula – now known as the Bruce Peninsula – to free up land for settlers and to secure natural resources. The Imperial Crown sought timber, in light of the very recent free trade agreement with the United States, and a water route with a mill site, to process and transport the timber to nearby Southampton. The Imperial Crown had initiated several unsuccessful attempts to secure this surrender from the Chippewas of Saugeen First Nation (“Saugeen”) and their neighbours and allies, the Chippewas of Nawash (“Nawash”) and the Colpoy’s Bay Indians (collectively, “Nawash”).

[2] Finally, at 1:00 a.m. on October 13, 1854, after approximately six hours of negotiation at a treaty council gathering, the Imperial Crown secured a surrender of the entire Saugeen Peninsula, with the exception of five reserve territories, two of which were for the benefit of Saugeen. The Imperial Crown, Saugeen and Nawash entered Treaty No. 72 (“the Treaty” or “Treaty 72”). It is beyond controversy that Saugeen wanted to preserve as much of the east coast of Lake Huron as possible to allow them to continue with their important fishing activities which benefitted from the beach, part of which is now known as Sauble Beach. The Imperial Crown secured the vast majority of the interior lands on the Saugeen Peninsula for settlement and resource extraction (largely timber) as well as the mouth of the River aux Sable (“Sauble River”) for a mill site and a transportation route for the export of timber ultimately to the United States.

[3] At issue is 1) how much of the coastline was reserved to Saugeen under the terms of Treaty 72, and 2) what did Saugeen receive under the final Plan of Survey of Amabel done by Provincial Land Surveyor (“PLS”) Charles Rankin in 1856. In particular, is Saugeen entitled to a strip of beach comprised of approximately 1.4 miles at the north end of Indian Reserve 29 (“IR 29”) between Lots 26 and 31 (Concession D, Amabel Township), known to Saugeen as Chi-Gmiinh and referred to as (north) Sauble Beach, under the Treaty? If so, was it marked as the northern terminus of the east boundary[^2] by the Imperial Crown’s land surveyor, PLS Rankin? In the alternative, if the northeast angle of this reserve was not properly marked, did PLS Rankin fail to carry out the terms of the Treaty in accordance with the honour of the Crown?

[4] For reasons that will be explained, the north terminus of the east boundary of IR 29, referred to in the Treaty as the “spot upon the coast”, was properly identified by PLS Rankin as being located within Lot 31, Concession D, Amabel Township. However, PLS Rankin ultimately marked the north terminus of the east boundary in his final Plan of Survey at around the road allowance between Lots 25 and 26, in an exercise of discretion to resolve a latent ambiguity created by the concavity (or inward curve) of Lake Huron’s coastline that arose when he could not run a straight line south from Lot 31 on dry land. He therefore excluded the wet sand strip around the coastline, reducing the reserve promised under the Treaty by about 1.4 miles. This exercise of discretion was not commensurate with the honour of the Crown. The Crown’s acceptance of the final Plan of Survey and records for deposit with the Crown Lands Department crystallized a breach of fiduciary duty by the Crown owed to Saugeen to faithfully carry out the terms of the Treaty in surveying the boundaries and then to protect and preserve the entirety of its reserve.

[5] The excluded coastline from (and including) Lot 26 to the approximate mid-way point of Lot 31, Concession D, in the Town of South Bruce Peninsula, and lying to the west of Lakeshore Boulevard North, Sauble Beach (the “Disputed Beach”), is reserve land that was never surrendered by Saugeen. The various defences fail.

[6] In the circumstances of this case, reconciliation requires that the Disputed Beach be returned to Saugeen as their unsurrendered reserve land.

THE PROCEEDINGS

[7] Saugeen seeks, inter alia, various declarations, including that the Disputed Beach forms part of their unsurrendered reserve land and that Saugeen is entitled to exclusive possession.

[8] Her Majesty The Queen in Right of Canada and the Attorney General of Canada (“Canada”) support Saugeen’s positions in this lawsuit. Canada admits that it breached its fiduciary duty owed to Saugeen, though on different grounds than those asserted by Saugeen.[^3] It denies having engaged in conduct inconsistent with the honour of the Crown.

[9] Her Majesty the Queen in Right of Ontario (“Ontario”) denies all allegations made against it and supports the positions of the Town, and the Estate of Barbara Twining, Lemon and Dobson (collectively, “the Landowners”[^4]). Ontario submits that if the Disputed Beach constitutes part of Saugeen’s reserve, then Canada alone is liable for any resulting breach of fiduciary duty or conduct inconsistent with the honour of the Crown, based on the division of powers under the Constitution Act, 1867.[^5]

[10] The Landowners resist Saugeen’s claims on the basis that Rankin properly marked the north terminus of the east boundary at or around the road allowance between Lots 25 and 26 and assert that, in any event, they have legal title to these lots (the “Disputed Lots”) based on their deeds which derive their root to title from the original patents granted by Canada when the Disputed Lots were originally sold. In the alternative, the Landowners assert various defences in the event the court finds that the Disputed Beach was designated as reserve territory under Treaty 72 and has never been surrendered.

[11] The Attorney General of Ontario appears as the Crown officer in charge of asserting the public interest. In the event that this court finds that the Disputed Beach is part of IR 29, he seeks a declaration that the public has an unfettered right to use the Disputed Beach for recreational purposes.

[12] The Estate of William Eldridge and the Estate of Charles Albert Richards do not contest Saugeen’s claim.

[13] This case will proceed in two phases, in accordance with my Order dated October 12, 2021.

[14] Phase one will determine whether or not Saugeen received the full length of coastline along Lake Huron on Sauble Beach, as promised to them under the terms of Treaty 72 and under PLS Rankin’s 1855 final Plan of Survey of Amabel. It will also determine the various defences and the counterclaim of the Attorney General of Ontario.

[15] This determination centres, in part, around the location of “the spot upon the coast” as referenced in Treaty 72, and whether that “spot” was altered by PLS Rankin when he and his assistant, George Gould, surveyed the eastern boundary of IR 29 due to the geographic challenges he faced. In particular, Rankin had to deal with the concavity of Lake Huron’s coastline at the “spot”, when he implemented the Treaty instructions on the ground.

[16] Saugeen asserts that under the terms of Treaty 72, their eastern boundary was intended to end at its northernmost limit of what is now known as Lot 31, at Sauble Beach, rather than approximately 1.4 miles to the south at the road allowance between Lots 25 and 26. Saugeen claims that PLS Rankin in fact marked the boundary’s northern terminus at Lot 31 by planting a post during his preliminary traverse but did not draw the boundary’s north end due to an inability to physically hand draw the resulting narrow boundary and terminus in some way on the final Plan of Survey. Ontario and the Landowners state that the final Plan of Survey clearly shows the boundary visibly ending at the road allowance between Lots 25 and 26, and this correctly captured the “spot upon the coast” referenced in Treaty 72, since a boundary line between Lots 31 and 25 would either have been under water or on wet land bordering the water’s edge.

[17] At stake is the ownership of the Disputed Beach bordering Lake Huron. Competing claims of “ownership” essentially pit Saugeen against its neighbours, the Town of South Bruce Peninsula (formerly Amabel Township) and three private landowners. They also pit two branches of the Crown against one another.

THE ISSUES AND RESULT

[18] The issues to be determined are:

(a) What is the northern terminus of IR 29’s east boundary under the terms of Treaty 72, and did that location change as a result of moving the west boundary under a subsequent Order in Council? Related to this issue is where did Rankin’s survey place the northern terminus of the east boundary, and why?

(b) Did the Imperial Crown breach its fiduciary duty owed to Saugeen, and/or act in a manner inconsistent with the honour of the Crown, by failing to faithfully mark the boundary and preserve and protect Saugeen’s interests in the Disputed Beach as reserve land under the terms of Treaty 72? If so, are Canada and Ontario responsible for the Imperial Crown’s breach of fiduciary duty and conduct inconsistent with the honour of the Crown? Further, did Canada and/or Ontario breach their fiduciary duty and/or act dishonourably by failing to protect and preserve Saugeen’s reserve land following Confederation?

(c) If IR 29 extends north along the beach of the currently surveyed boundary of IR 29 to include the beach fronting the Disputed Lots, what are the rights of the Landowners? More particularly,

i. What is the interpretation and legal effect of the Crown Patents issued for the Disputed Lots and did they extinguish Saugeen’s interest in the Disputed Beach?

ii. Does the doctrine of bona fide purchaser for value without notice effectively extinguish Saugeen’s quasi-proprietary interest in the Disputed Beach in favour of the Landowners?

iii. Is Saugeen’s claim as against the Landowners barred by operation of s. 4 of the Real Property Limitations Act,[^6] with the effect that Saugeen’s interest is extinguished under s. 15 of the Act? In the alternative, is its claim barred by the doctrine of laches?

iv. Is there a public right of use to the Disputed Beach that supersedes Saugeen’s exclusive possessory right in its reserve interest?

[19] For the reasons that follow I find:

(a) The Treaty established the boundaries of Saugeen’s southern reserve, IR 29.

(b) The Treaty established that the north terminus of the east boundary was at a “spot upon the coast” “about” 9 ½ miles from the Treaty-defined (original) west boundary, and this spot was not altered by the Copway Road amendment (or change) to the west boundary made after the Treaty.

(c) The Treaty allows for the possibility of a further boundary segment to connect the east and west boundaries at the north end of the reserve by necessary implication.

(d) PLS Rankin properly located the “spot upon the coast” when he initially planted a post within Lot 31 and called it the northeast angle of the Indian reserve on September 4, 1855, though he planted the post further inland from Lake Huron to prevent it from being washed out by the wave action.

(e) In his final survey, however, PLS Rankin fixed the north terminus of the east boundary at the road allowance of Lots 25 and 26 (or just south of that point) rather than within Lot 31. He did this to resolve a latent ambiguity which arose when he was marking the boundary on the ground. Rankin found that in order to run his survey line south in a straight line from the “spot” at Lot 31, he crossed wet sand between Lot 31 and 26 (the Disputed Beach), which he likely deemed to be unusable land to Saugeen. The latent ambiguity arose as a result of the concavity of Lake Huron’s coastline which curved inland east to Lot 30 before curving back westward at around Lot 25/26 road allowance.

(f) PLS Rankin had two choices to rectify the latent ambiguity. He could either create a short north boundary to connect the east and west boundaries and move the “spot” slightly inland to his post or he could move the “spot” further south to a point where the east and west boundaries intersected and he could mark the boundary due south on dry land. PLS Rankin chose the second option. He exercised his discretion to resolve the latent ambiguity by moving the “spot upon the coast” south by approximately 1.4 miles, in accordance with acceptable boundary principles of the day as applied to deeds. However, in so doing, he deprived Saugeen of their unsurrendered reserve coastline promised in Treaty 72 (though the movement of the east boundary south resulted in some additional interior lands).

(g) When faced with this ambiguity, PLS Rankin failed to seek further instructions from the Imperial Crown due to the time pressure the Crown imposed on him to finish the survey so that the surrendered lands could be put up for public auction. He also did not alert the Crown to his decision to demarcate the north terminus of the east boundary further south along the coast. Nonetheless, the Crown de facto sanctioned Rankin’s decision when the Crown Lands Department accepted Rankin’s final Plan of Survey and his records for deposit as marking the boundaries of IR 29.

(h) In the course of the subsequent Crown-issued patents, for the lots along the Disputed Beach, along with subsequent surveys and boundary investigations of the east boundary, the Crown did not consider what the Treaty set out as the boundaries of IR 29, but rather replicated Rankin’s final Plan of Survey of Amabel, until a re-survey of the northern terminus of the east boundary was commissioned by the federal Crown in 1974. At that time, Ontario Land Surveyor (“OLS”) and Dominion Land Surveyor (“DLS”) Guenter Bellach considered Rankin’s field notes regarding the preliminary survey over the Disputed Beach, and the water limits of Lake Huron over a period of time since then. Bellach concluded that Rankin marked the “spot upon the coast” within Lot 31 but decided to exclude the Disputed Beach from the proper reserve description because Rankin must have deemed it to be lacking in value.[^7] This eventually spurred the federal Crown to change its position from affirming the east boundary as marked by Rankin on his final Plan of Survey to acknowledging that the north terminus of IR 29, or the “spot upon the coast”, as defined by Treaty 72, is within Lot 31. The federal Crown then commenced an action in 1990 to reclaim the Disputed Beach, which was superceded by the present action.

[20] Saugeen did not surrender the Disputed Beach and thus, this beach is Saugeen reserve land. Under the terms of Treaty 72 Saugeen was entitled to have the east boundary of IR 29 extend up to a point along the coastline that is within Lot 31, Concession D, Township of Amabel. PLS Rankin’s failure to appropriately mark the north terminus of the east boundary at that location constituted an exercise of judgment that was inconsistent with the honour of the Crown. When the Imperial Crown accepted Rankin’s final Plan of Survey that placed the northern terminus of the east boundary at or around the road allowance between Lots 25 and 26 (Hepworth Road), it breached its fiduciary duty rooted in the honour of the Crown. The Imperial and federal Crown acted dishonourably and breached the Crown’s fiduciary duty by failing to correctly demarcate the north terminus of the east boundary, and then failing to protect and preserve Saugeen’s IR 29 in its entirety.

[21] I also find that Saugeen’s claim to the Disputed Beach is not barred, extinguished or defeated by the operation of any of the doctrines or statutes relied upon by Ontario or the Landowners.

[22] Finally, in the circumstances of this case, the Attorney General of Ontario has failed to establish that the public, under the doctrine of dedication or proprietary estoppel, has a right of public access to the Disputed Beach for recreational purposes. The Town similarly has failed to establish that it has any valid claim of unfettered public access to the Disputed Beach.

[23] In the circumstances of this dispute between neighbours, reconciliation will best be achieved by returning the Disputed Beach to Saugeen as reserve land.

[24] For ease of reference and illustrative purposes only, I have appended to these Reasons four archival documents that were entered as exhibits at trial: Oliphant’s sketch map appended to his Treaty Report, Rankin’s final Plan of Survey of Amabel, Rankin’s draft map showing where Rankin marked the “spot on the coast” and a zoomed in excerpt from Rankin’s draft map. I have added text to these images in red ink for ease of reference only.[^8]

THE PARTIES

[25] The Saugeen First Nation is an Indigenous Nation (and Indian Band under the Indian Act[^9]), comprised of Anishinabek people whose ancestors have lived on the lands currently known as the Bruce Peninsula since time immemorial. They historically lived on what was then identified as Saugeen Peninsula with their historic allies, the Anishinabek people of the Chippewas of Nawash Unceded First Nation.

[26] Canada is a successor to the Imperial Crown as a treaty partner with Saugeen.

[27] Ontario is also a successor to the Imperial Crown and as Saugeen’s treaty partner.

[28] The Town of South Bruce Peninsula is the municipal entity in which the Disputed Beach is located. It was incorporated in 1999 as an amalgamation of the Townships of Amabel and Albemarle, the Town of Wiarton and the Village of Hepworth. The Town asserts ownership over a considerable portion of the Disputed Beach by virtue of having purchased quitclaim deeds from individuals in the early 1970s.

[29] The Estate of Barbara Twining is the registered owner in fee simple to part of Lot 26 and asserts that its title includes part of the Disputed Beach. The Estate owns a cottage which is located on the east side of Lakeshore Boulevard North, inland from the Disputed Beach, which fronts the cottage on the west side of that road.

[30] Alberta Lemon is the registered owner in fee simple of part of Lot 26, adjacent to the Twining property, and asserts that her title includes part of the Disputed Beach. She also owns a cottage on the east side of Lakeshore Boulevard North, inland from the Disputed Beach which fronts the cottage on the west side of Lakeshore Boulevard North.

[31] David Dobson is the registered owner in fee simple of part of Lot 26 on the west side of Lakeshore Boulevard North. His business owns and operates a seasonal restaurant on this portion of the Disputed Beach.

ANALYSIS

1. What does Treaty 72 Provide with Respect to the Eastern Reserve Boundary and the “Spot Upon the Coast”, and Where did Rankin Place the North Terminus of the East Boundary?

a) The Parties’ Positions

[32] Saugeen submits the following about the “spot upon the coast”, taken from the language of the Treaty:

a) the “line drawn from a spot upon the coast” that “bounded” the Reserve was intended to be a boundary;

b) the east boundary was intended to start on the coast inland from the water’s edge; and

c) the express distance of “about (9 ½ ) nine miles and a half” to be the “spot upon the coast” was intended to be “about nine miles and a half” on the ground along Lake Huron’s coastline from the original Treaty-defined west boundary.

[33] Saugeen submits that “coast” is not an ambiguous term but means a strip of land of indefinite width that extends from the shoreline (water’s edge) inland to the first major change in terrain features (e.g., sand dunes or grassy parts of the shoreline). Saugeen relies on the expert evidence of coastal engineer, Dr. Michael Davies, and surveyor, Mr. Izaak de Rijcke, who give a similar definition. Saugeen also references PLS Rankin’s own report to then Superintendent of Indian Affairs, T.G. Anderson, dated August 2, 1854 in which he states that Saugeen wanted to reserve “all the coast”, meaning at that time an area of approximately 130,000 acres and something more than the water’s edge.

[34] Saugeen and Canada point out that the parties intentionally set out a measurement of “about” nine and a half miles along the coastline of Lake Huron in the Treaty. This distance, though approximate, is deliberate. An interpretation that reduces that distance to 8.1 miles of coastline is, in both Saugeen and Canada’s submission, not a reasonable interpretation of “about”.

[35] The Landowners and Ontario submit that there is ambiguity on the “facial meaning” of the Treaty’s description of the east boundary. They reference the starting point of the measurement of the “about (9 ½) nine miles and a half” from the west boundary at Lake Huron and south to the Half Mile Strip “from a spot upon the coast” as being vague.

[36] These defendants posit that the “spot upon the coast” supports various interpretations, including that coast is synonymous with “water’s edge” or “lake, edge of”– terms used frequently by Rankin and Gould in their field notes reflecting the survey on the ground of the reserve boundaries. These defendants submit that “water’s edge” and “lake, edge of” means either the line between water and land or, in the case of Ontario, the wet sand strip caused by the natural wave action of Lake Huron.

[37] These defendants also point out that the location of the east boundary is tied to the west boundary. Therefore, by reason of a subsequent change to the location of the west boundary (referred to at trial as the Copway Road amendment), the west boundary was no longer “due north” as per the Treaty, but rather ran in a northwesterly direction­ to Lake Huron. This change had the effect of relocating the southern terminus of the west boundary further south along the coast, creating a longer shoreline portion of the west (Lake Huron) boundary than originally contemplated as the “spot upon the coast”. Therefore, the reference to “due north” in the Treaty did not reflect the true common intentions of the Treaty parties and altered the location of the “spot upon the coast” from the text of the Treaty to reflect a “spot” further south. Under this interpretation, the common intentions of how the parties understood the Treaty text is inconsistent with the written words of the Treaty text.

[38] Furthermore, these defendants submit that a reasonable interpretation of the Treaty’s description of the east boundary with its northern terminus being about 9 ½ miles from the “spot upon the coast” was intended by the parties to mean that the northern terminus of the east boundary had to run on dry land in a straight parallel line down to the west boundary at the south end. They say the evidence shows that when Rankin and Gould attempted to run a survey chain line on the ground from the “about” 9 ½ mile point, they ran into the water’s edge caused by the concavity of Lake Huron’s coastline which the Treaty parties did not anticipate. This required Rankin to choose a northern terminus at a more southerly point of the concavity which, in turn, allowed him to run the survey chain in a straight line south to intersect with the Half Mile Strip and thus “bound” the reserve by choosing a point where the east boundary intersected with the west boundary and did not require a north boundary. They submit that the Treaty precludes the addition of a north boundary because one is not explicitly referenced.

[39] I will proceed to an analysis of Treaty 72 in order to determine what the Treaty promised in relation to the north terminus of the east boundary. This analysis will include a consideration of what Rankin did on the ground when he marked the north terminus of this boundary, since, as will be seen, conduct immediately following the Treaty is relevant to treaty interpretation.

b) The Principles of Treaty Interpretation and the Overarching Principle of Reconciliation

[40] Treaties are not ordinary contracts. They set out in writing the terms of a solemn exchange of promises made between the First Nations and the Crown.[^10] Treaty 72 was made by the Imperial Crown prior to the confederation of Canada.

[41] In R. v. Marshall, McLachlin J., as she then was, in dissent (but not on this point), sets out how the courts should approach the interpretation of a treaty.[^11] Those principles are:

a) Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation;

b) Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the aboriginal signatories;

c) The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed;

d) In searching for the common intention of the parties, the integrity and honour of the Crown is presumed;

e) In determining the signatories’ respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the treaty parties;

f) The words of the treaty must be given the sense which they would naturally have held for the parties at the time;

g) A technical or contractual interpretation of treaty wording should be avoided;

h) While construing the language generously, courts cannot alter the terms of the treaty by exceeding what is “possible on the language” or realistic;

i) Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context.[^12]

[42] In Marshall, McLachlin J. emphasized that the words of the treaty clause under consideration must be examined to determine their “facial meaning”, noting any “patent ambiguities and misunderstandings that may have arisen from linguistic and cultural differences”. Through this exercise the possible interpretations will be ascertained. Then, the various interpretations will be considered “against the treaty’s historical and cultural backdrop”. This latter step may lead to “latent ambiguities” or “alternative interpretations” not evident on its first reading. The court is to “rely on the historical context to determine which comes closest to reflecting the parties’ common intention” and will choose “the one which best reconciles the parties’ interests”.[^13]

[43] The one-sidedness of the written words chosen by the drafters of the treaty (the representative of the Crown) in terms of understanding the common interests of the Treaty partners was stated plainly in Marshall, at para. 14:

The Indian parties did not, for all practical purposes, have the opportunity to create their own written record of the negotiations. Certain assumptions are therefore made about the Crown’s approach to treaty making (honourable) which the Court acts upon in its approach to treaty interpretation (flexible) as to the existence of a treaty…, the completeness of any written word (the use, e.g., of context and implied terms to make honourable sense of the treaty arrangement) …, and the interpretation of treaty terms once found to exist. The bottom line is the Court’s obligation is to “choose from among the various possible interpretations of the common intention the one which best reconciles” [the treaty parties’ respective interests]. [Citations omitted].

[44] In Restoule, our Court of Appeal recently applied the Marshall test and confirmed that “principles related to common intention, text, context and purpose inform the interpretation of historical treaties”. Furthermore, the fact specific nature of treaty interpretation may make some of these principles “more salient than others”. The Court of Appeal also stated that the trier of fact must “attend to both the written text of a treaty and the evidence about the context in which it was negotiated” and, the common intention must be that “of both treaty partners, not one alone”.[^14]

[45] A different way of articulating this approach to ascertain the common intention of the Treaty parties is:

i. scrutinize the written text of the treaty provision in question, within the context of the treaty as a whole;

ii. look to the historical, political and ethnohistorical (cultural) context in which the treaty was negotiated;

iii. review the written record of the treaty negotiations; and

iv. examine the subsequent conduct of the treaty parties, with an emphasis on the conduct close in time to the execution insofar as helpful to determining the respective treaty parties’ understanding of the treaty terms.[^15]

[46] After going through this exercise, the court is to choose from the available reasonable interpretations the one that reflects the most generous reading of the treaty in favour of the First Nation.[^16] Fundamentally, the overarching principle of treaty interpretation is the goal of reconciliation. In the treaty context, as applied to a determination of a First Nation’s rights and the corresponding obligations of the Crown, reconciliation has been called the “grand purpose” of section 35 of the Constitution Act, 1982.[^17] Reconciliation is not fixed at a point of time, but rather reflects the ongoing evolution of the relationships between First Nations with the Crown and non-Indigenous Canadian populations with the ultimate goal of mutual respect, dignity and honour.[^18]

[47] Also, the honour of the Crown plays a critical role in treaty interpretation as will be developed later in these Reasons.

[48] Guided by these general principles I will now proceed to the treaty interpretation exercise.

c) The Application of the Treaty Interpretation Principles to Treaty 72

i. The Treaty Text

[49] The passage in Treaty 72 that addresses the description of the two Saugeen reserve boundaries (Indian Reserve 29 and then Chief’s Point reserve) reads as follows:

1^st. For the benefit of the Saugeen Indians we reserve all that block of land bounded West by a straight line running due north from the river Saugeen at the spot where it is entered by a ravine immediately to the west of the village and over which a bridge has recently been constructed to the shore of Lake Huron. On the South by the aforesaid northern limits of the lately surrendered strip; on the east by a line drawn from a spot upon the coast at a distance of about (9 ½) nine miles and a half from the Western boundary aforesaid and running parallel thereto until it touches the aforementioned northern limits of the recently surrendered strip; and we wish it to be clearly understood that we wish the Peninsula at the mouth of the Saugeen river to the west of the western boundary aforesaid to be laid out in town & park lots and sold for our benefit without delay, and we also wish it to be understood that our surrender includes that parcel of land, which is in continuation of the strip recently surrendered, to the Saugeen River.

We do also reserve to ourselves that tract of land called Chief’s Point, bounded on the East by a line drawn from a spot half a mile up the Sable River and continued in a northerly direction to the Bay and upon all other sides by the Lake. [Emphasis added.][^19]

[50] On February 3, 1855, Treaty 72 was confirmed by Order in Council.

[51] The Treaty explicitly describes three reserve boundaries, referenced as “west”, “south” and “east”. However, implicitly incorporated into the west and south reserve boundaries are Lake Huron’s shore (the west boundary is described as going to the shore) and the Saugeen River’s north shore (the south boundary is described as the northern limits of the lately surrendered strip or Half Mile Strip) as natural boundary segments.

[52] The west boundary is described in the Treaty as a “straight line running due north from the River Saugeen, at the spot where it is entered by a ravine immediately to the west of the village, and over which a bridge has recently been constructed, to the shore of Lake Huron”. It is uncontested that the geographical markers (the ravine and the recently constructed bridge) were readily identifiable to the Treaty parties at the time of treaty formation. The referenced village was Saugeen’s primary settlement at the time of Treaty 72 and was labeled in the historical maps as the “Indian Village”.

[53] While the south portion of the west boundary is a straight line, the Lake Huron extension of the west boundary follows the coastline as a natural riparian boundary which was clearly not a straight line.

[54] The east boundary is described as “a line drawn from a spot upon the coast at a distance of about (9 ½) nine miles and a half from the western boundary aforesaid, and running parallel thereto until it touches the aforementioned northern limits of the recently surrendered strip”. It is uncontested that the “recently surrendered strip” is what is called the Half Mile Strip surrender or Treaty 67 made in 1851 and already surveyed.

[55] The south boundary is a common boundary with the north boundary of the Half Mile Strip from its intersection with the east boundary and extends along the north shore of the Saugeen River to the west boundary.

[56] The parties agree that the reserve as described in Treaty 72 did not produce a square or rectangular piece of land. Rather, it was irregularly shaped due to the two natural boundaries (Lake Huron to the west and Saugeen River to the south). Of most import to the determination of the north terminus of the east boundary is the Lake Huron coastline portion of the boundary.

[57] As Saugeen points out, today there appears to be an implied (but not surveyed) north boundary. Due to the accretions of sand which have widened the beach, there is a small boundary in reality connecting the surveyed north terminus of the east boundary to the west boundary at Lake Huron. If Saugeen is correct that the east boundary under the terms of Treaty 72 was intended to terminate within Lot 31, rather than the road allowance at Lot 25 and 26, then Saugeen submits there would, of necessity caused by the concavity of Lake Huron’s coastline in 1854, have been a small north boundary to connect the northern terminus of the east boundary to Lake Huron’s coastline at that location as well. Canada accepts this position as making common sense.

ii. The Treaty as a Whole

[58] The subject paragraph in Treaty 72 must also be interpreted within the context of the Treaty as a whole.[^20]

[59] The Treaty was made by the Crown with Saugeen and Nawash (identified as the Owen Sound Indians and the Colpoy’s Bay Indians in the Treaty). It resulted in the creation of five reserves: two reserves for Saugeen, two reserves for the “Owen Sound Indians” and one reserve for the “Colpoy’s Bay Indians”.

[60] In the Treaty’s descriptions of some of the reserve boundaries, geographical markers are identified, making the start or end point of the boundary more objectively precise. However, in other boundary descriptions, there are no such specifically identified geographical markers, making the starting or ending point of those boundaries objectively less precise.

[61] Also elsewhere in the Treaty, reference is made to a “spot”, “shore”, “coast” and “ravine”, without any clear definition by which to objectively distinguish the use of the various boundary terms. Notably, the Chief’s Point reserve also references a boundary “drawn from a spot half a mile up the Sable River”. There has been no controversy regarding the Treaty partners’ common understanding of the location of this “spot”.

[62] None of the reserves created by Treaty 72 are described in metes and bounds.

[63] It is reasonable to assume that where the Treaty uses different words to describe topography, the Treaty parties intended those words to describe different topography or areas of land. Therefore, the Treaty’s use of “shore” and “coast” were meant to reference different land types. It is also clear that the boundaries set out in the Treaty included both natural water boundaries (Lake Huron to the west and Saugeen River to the south) and landlocked boundaries. However, shore and coast are words capable of more than one reasonable interpretation.

[64] In keeping with the principle that the Treaty text is a starting point and will provide a preliminary, but not necessarily determinative, framework for the historical context inquiry,[^21] I will now proceed to consider the historical context with a view to shedding light on the likely common intention of Saugeen and the Imperial Crown.

iii. The Historical and Ethnohistorical Context

[65] The historical context illuminates the route by which the Treaty was arrived at on October 13, 1854. I agree with Saugeen’s expert historian, Dr. Heidi Bohaker, that it is an error to determine the intention of the Treaty parties purely from the archival written record. Those records cannot be interpreted in a historical vacuum. The ethnohistory and oral history of Saugeen also contribute to an interpretation of Treaty 72 as part of the broader historical context.

[66] The evidence at trial relating to the historical and ethnohistorical context of Treaty 72’s description of IR 29 came primarily from two expert historians and oral history was received from Chief Vernon Roote, a former Chief of Saugeen.

[67] Saugeen’s expert historian was Dr. Heidi Bohaker and Ontario’s expert historian was Dr. Gwen Reimer. In many significant respects, the expert historians substantially agreed, particularly on the written archival record.

[68] The primary area of disagreement arose from their different conclusions in relation to the common intention of the Treaty parties regarding the intended location of the northern terminus of the east reserve boundary as reflected in Treaty 72. While Dr. Reimer’s opinion was based almost exclusively on the written archival record, Dr. Bohaker’s opinion also took into account the ethnohistorical context.[^22]

[69] In my view, an understanding of Saugeen’s perspective at the time of entry into the Treaty in 1854 must include a consideration of their ways, traditions, and culture. This is particularly apt when the written archival record, as many courts have acknowledged, was not written by the Saugeen, but by the other Treaty party – the Imperial Crown in this case. The Saugeen people required an interpreter to understand what was being proposed, to relay their own counter proposals, and ultimately to verbally translate the terms of Treaty 72. The Treaty is written in English and was not translated (in written form) into the Anishinaabemowin language.

iv. The Ethnohistorical Context

[70] The ethnohistorical evidence presented by Dr. Bohaker was not seriously challenged by Dr. Reimer who developed her opinion primarily based on the archival record.

[71] Saugeen had a distinct political form of governance and legal tradition. The Anishinabek system of governance relied on the doodem identity and the council fire.

[72] The doodem identity is a category of kinship in which family groupings are identified by beings that were considered by the Anishinabek as persons, such as the caribou, crane and otter. Persons could not marry members of their same doodem.

[73] The doodem identity also has relevance to the Anishinabek’s system of governance. With respect to the Saugeen, a person from the Caribou doodem was historically the chief or “ogimaa”, reflecting the tradition of the hereditary chief. In addition, the Saugeen people were represented by leadership consisting of a deputy chief (annikeogimaa) and the councillors (the gitchi-Anishinaabek). These same leaders would typically be the heads of their own smaller family hunting and trapping groups over the winters.

[74] Significantly, Treaty 72 was signed by the leadership of the Saugeen council, some of whom signed with their doodem images: John Kaduhgekwini (Caribou), Alexander Madwayosh (Otter), and John Manedoowab (Bear). The Treaty was also signed by the leadership of the Nawash council, also by affixing these signatories’ respective doodem images to the document.

[75] The council fire refers to the place and seat of decision making. Dr. Bohaker explained that council fires were “deliberative bodies that were constituted and recognized through and by other Anishinaabe councils to have responsibility for the lands, waters and peoples of a particular territory”.

[76] The archival record bears out that the Saugeen people continued to practice their traditional system of governance at the time of the formation of Treaty 72 and in the period thereafter.

[77] Also, of particular significance to understanding Saugeen’s perspective at the time of Treaty formation was the yearly fishing, hunting, trapping and harvesting activities of the Saugeen people, called the “seasonal rounds”.

[78] As people who lived off the land and waters, the Saugeen people would change their locations within their traditional territory by season. Dr. Bohaker described the seasonal rounds as “an integral part” of Anishinaabe governance and as essential to Saugeen’s way of life and livelihood.

[79] The smallest political unit was called the Indinaakonigewin or winter hunting group. This group was typically comprised of primarily the headman (gitchi-Anishinaabe), his brothers, their wives and children, and the wives and children of their sons, reflecting a patrilineal grouping. These groups tended to comprise of about 20 to 40 people and could expand to include other relatives as needed.

[80] During the late fall and winter, these family groupings hunted, trapped, and engaged in spear fishing and ice fishing in their own hunting territories. They processed hides and cooked and dried meat. During the winter, ice fishing was especially important with families catching one to two hundred pounds of fish at a time. The family hunting grounds were located in what is now known as the Grey, Bruce and Huron counties within the Bruce Peninsula.

[81] In the early spring, the Saugeen women engaged in maple sugar gathering and processing. The resulting sugar would be used for eating and trading with each other and -settlers.

[82] The Saugeen people began their spring fishing in or around April. They moved from their inland territories to the mouths of the Saugeen and Sauble Rivers to set nets and catch fish that spawned in the spring, including pickerel, pike and sucker.[^23]

[83] In June, after the spring fishing was completed, the Saugeen people returned to their council or village site and planted gardens, socialized, and held councils. Their council site, referred to as the “Indian Village” by the Crown, was located on the north shore of the Saugeen River, just inland from Lake Huron and to the east of what became part of Southampton.

[84] Next, the Saugeen people started their summer fishing seasonal round, catching black bass and then in August, lake sturgeon. The late summer also brought the wild rice harvest, which grows in the low-water level areas.

[85] From early to mid-fall, the Saugeen people engaged in further fishing which, Dr. Bohaker noted, was crucial to winter survival. The fish would be smoked and sometimes powdered and mixed with berries for future consumption. The fall fishery brought lake herring and lake trout and, later on, whitefish. The fall fishing season typically ran for about 6 weeks, ending in November.

[86] The main method of fishing for lake herring south along the shoreline of Lake Huron was called seine fishing. Essentially, the men would place nets in the shallow waters of Lake Huron which they entered from the beach. The nets were staked and would capture the herring. The fishers would then bring the nets on to the beach and dry the fish. This beach played a vital role not only in this fishery, but in providing the men with a good exit and landing place for their canoes as contrasted with the rocky cliffs elsewhere along the coast of Lake Huron.

[87] Chief’s Point was an important burial place, social meeting area and fishing location, enhanced by the Fishing Islands located across from it.

[88] At the councils held throughout the summer, the winter hunting territories would be discussed, and family groupings would confirm which territory they would use in the coming season. This process was essential for sustainability and safety.

[89] Dr. Bohaker testified that commercial fishing was also important to Saugeen at and around the time of treaty formation. In 1834, Saugeen entered into a lease with the Huron Fishing Company permitting that company to use the Fishing Islands (across from Chief’s Point) and receiving rental income in return. Saugeen also purchased salt for its own fishing activities. However, in October 1850, Saugeen petitioned the Governor General to end the leasing of the Fishing Islands recognizing that Saugeen would earn more from taking over the commercial fishing than it was receiving in rent. Saugeen wrote that it was “in possession of means for carrying on the business with success also we have young men in our tribe who have learned the business of coopering and we can thus be supplied with barrels without any additional expense.”[^24] While this request was denied, it is evidence that in the time period immediately leading to the Treaty Saugeen was keenly interested in developing the commercial fishery.

[90] An 1851 census conducted by the Province of Canada demonstrates that the Saugeen people continued their seasonal rounds. No anyone was in the Saugeen Village during January 1852 when the census taker, Hugh Johnson, arrived. The continuation of this practice of seasonal rounds was also documented later on when Superintendent General of Indian Affairs, Laurence Oliphant, and James Ross, M.P.P., arrived in the Saugeen Village on October 12, 1854 to press for a surrender of the Saugeen Peninsula, and had to wait 24 hours for members to return from their fishing activities at the Fishing Islands and Sauble River.

[91] Dr. Bohaker’s evidence about the seasonal rounds was supported by the oral history evidence given by Chief Vernon Roote. Dr. Reimer also acknowledged the importance of the seasonal rounds to Saugeen’s livelihood and culture.

[92] I accept Dr. Bohaker’s opinion that, in the years leading up to Treaty 72, the Saugeen people practiced their traditional form of governance and livelihood, including their seasonal rounds. I further accept that fishing was an essential part of the Saugeen people’s way of traditional life and livelihood both for sustenance and as a source of income up to (and immediately following) the formation of Treaty 72. This evidence was not challenged by Dr. Reimer except that in her view the fishery was beginning to decline at Lake Huron and thus in importance to Saugeen. Dr. Reimer’s opinion was based on the economic importance of the fishery to Saugeen, but not on its importance as a means of subsistence survival to the Saugeen people.

[93] The court also received evidence from Chief Vernon Roote. Some of his evidence was in the nature of oral history and was admitted without objection. Chief Roote is 74 years old. He was Chief of Saugeen for four-year terms in 1985 and 2004. He was a councillor in 1974 and recently re-elected to that position.

[94] Chief Roote’s Indigenous name means “Black Blue Heron”. He testified that an Indian agent gave him his English name. He was raised on the Saugeen reserve as a child by his grandmother. He learned his culture and ceremonies from his grandfather. He is a traditional pipe carrier.

[95] In 1970, Chief Roote began investigating the east boundary issue at the request of Chief and Band Council. He became familiar with some of the federal government record relating to the reserve boundaries through that investigation.

[96] Chief Roote explained the family doodem system. He is a member of the Bear doodem, which traditionally has the responsibility for the security and protection of the community.

[97] Saugeen’s traditional territory went from Goderich, east to Orangeville and north to Georgian Bay, up to Tobermory and the west shore of Lake Huron. There is a sacred burial site located at the mouth of the Saugeen River.

[98] Fishing was an important source of food, as was hunting meat. These were staples for Saugeen. The Fishing Islands and the shallow waters along Sauble Beach had seine nets. Sauble Beach was a particularly useful location to conduct seine fishing, unlike, for example, the Saugeen River, which had fast flowing waters and could not support seine fishing. The Saugeen people also fished the Saugeen River but with a different method.

[99] Chief Roote explained that the broader area of Sauble Beach, including the Disputed Beach, was always of great value to the Saugeen people for fishing. The Saugeen people call the Sauble Beach lake water “Chi-Gmiinh” meaning “big” (Chi) and “depth of water” (Gmiinh).

Summary of Findings Regarding the Ethnohistorical Context of Treaty 72

[100] The Saugeen people lived off the land and the waters. With the change of seasons, the source and locations of their sustenance and livelihood also changed. This is called the seasonal rounds. From the spring through early fall, the Saugeen people fished the rivers and Lake Huron from both the coastline and the islands identified on the early maps in the 1800s as the “Fishing Islands” located in Lake Huron to the north of the Disputed Beach, in the vicinity of Saugeen’s northern reserve called Chief’s Point. They also harvested plant foods. In the fall they would hunt, and in the winter they would trap as well as ice and spear fish. This is an oversimplification of the seasonal rounds, but the point is that fishing was a major source of sustenance as fish would not only be consumed during the warmer months, but it was also dried and preserved for the winter months when food sources were more scarce.

[101] During the spring months, their fishing largely occurred at the mouths of the Sauble and Saugeen Rivers where nets were set. The Saugeen River is at the south boundary of IR 29 (and forms part of that boundary) and the Sauble River is located between IR 29 and Chief’s Point reserve. These were the spawning waters for the fish, and the fish would migrate to Lake Huron once the lake temperatures were warm enough.

[102] Also of note was the type of fishing in which the Saugeen people engaged during the warm weather months. The sandy beach portions of Lake Huron’s coastline were pivotal in determining the type of fishing and fish preservation methods used by the Saugeen people. They used seine nets which hung vertically in the shallow waters weighed down by sinker weights. Herring was the main source of fish caught with the seine nets, and the fishers would drag their catch ashore from the nets. The Saugeen would then take the fish and lay them on the beach to dry. This was a primary activity and a distinct type of fishing done by the Saugeen people in the times leading up to, and immediately following, the formation of Treaty 72.

[103] In my view, at the time of treaty formation, the Saugeen people were still heavily dependent on fishing for their own sustenance and continued to invest in the commercial fishery as a future source of income for their youth, even though the fish stocks were declining. They continued to fish consistent with their traditional ways. Saugeen was diversifying to agriculture as well. On the other hand, as will be seen, the fishery at the time of Treaty formation was not as important to the Crown in terms of attracting settlers as was harvesting the forests and agriculture.

v. The Archival Record

[104] Equally important to the task of treaty interpretation is an understanding of the historical context as recorded from the Imperial Crown’s perspective.

[105] At the forefront was the Imperial Crown’s persistent and increasingly urgent efforts to colonize the Saugeen Peninsula and open it up to settler development, and Saugeen’s responses to these various efforts.

[106] In this respect, Dr. Bohaker and Dr. Reimer’s opinions are substantially the same.

[107] I will first examine the various Imperial Crown-Saugeen relations as influenced by various key events reflected in the archival record from 1836 up to Treaty 72.

(a) The Bond Head Treaty No. 45 ½ of 1836

[108] In the 1830s, the colonial administration of the Imperial Crown began implementing a policy of Indian “civilization”, focusing on Manitoulin Island as a prime location to re-settle Indigenous populations. Furthermore, due to hostile policies in the United States, Indigenous peoples from that country sought to relocate to Upper Canada. Meanwhile, settler populations were starting to increase within the Saugeen Peninsula and were increasingly encroaching on Saugeen’s vast unceded traditional territory.

[109] Within this historical context, the Saugeen people agreed to surrender their traditional territory to the south of the Saugeen River in exchange for the Imperial Crown’s promise of protection in what is known as the Bond Head Treaty or Treaty No. 45 ½, made on August 9, 1836. Under this Treaty, Saugeen and Nawash surrendered approximately 1.5 million acres of their traditional territory. The surrendered territory became known as Southampton.

[110] The new boundary was drawn as a straight line running east-west from the south tip of Owen Sound to Lake Huron, leaving the northern portion of the Saugeen Peninsula as “Indian” territory and identifying it as such on the maps of the day.

[111] In response to Saugeen’s petition of June 1843, advising that the “Indian boundary” ran too far north, cutting off a portion of their territory at the “Indian Village”, an Order in Council dated July 26, 1843 designated a new boundary that carved out from surrender the area around the “Indian Village” comprising about 26,000 acres. The boundary line on Southampton was surveyed by PLS Rankin in 1846 (referred to as the “tongue of land” as it jutted out into Lake Huron bordered on three sides by water) and preserved both Saugeen’s village and their cleared fields bordering the north shoreline of the Saugeen River. By this time, the Saugeen had diversified their food sources to include some farmed crops, notably corn. Under this Treaty, Saugeen reserved the entire coastline of Lake Huron north to and including Chief’s Point, the mouth of the Sauble River, and the Fishing Islands. More specifically, Saugeen and Nawash retained the entirety of the Saugeen Peninsula north of the boundary established by the Bond Head Treaty.

(b) Royal Proclamation of 1847

[112] On June 29, 1847, Queen Victoria issued a Royal Proclamation. It came as a result of a petition from Saugeen and Nawash requesting assistance in protecting their respective fishing grounds from increasing encroachment by settlers.

[113] This Royal Proclamation expressly acknowledged that the entire Saugeen Peninsula belonged to Saugeen and Nawash, and that it was unceded territory. Through this vehicle, Queen Victoria as the sovereign Crown promised these First Nations that the peninsula would remain theirs, until such time as they wished to surrender it.

(c) Half Mile Strip Treaty No. 67 of 1851

[114] Next, the Saugeen (and Nawash) peoples surrendered a strip of their traditional territory along the north side of the east-west boundary made under the Bond Head Treaty 45 ½ and the 1843 Order in Council. The terms of this surrender were reflected in Treaty No. 67 made on September 2, 1851.

[115] The Imperial Crown wanted this half-mile strip of land primarily for the construction of a road from Owen Sound to Southampton. By this time, Southampton had been surveyed and divided into lots for settlers. As well, the Imperial Crown wanted this additional land to provide more interior land for settlers to purchase.

[116] In exchange for this surrender of approximately 4,800 acres of land, Saugeen and Nawash were to receive the proceeds of sale of the resulting lots to settlers, to be held and invested for their benefit by the Governor General. This Treaty area became known as the “Half Mile Strip”, later referenced in Treaty 72 as the “lately surrendered strip” (part of the south boundary).

(d) Free Trade Agreement of 1854 with the United States

[117] Between 1844 and 1854, there was a large increase in the number of settlers arriving in the Saugeen Peninsula. The settler population nearly doubled in this decade giving rise to great demand for land and ongoing encroachment on the First Nation fisheries and timber resources.

[118] At around the same time, the economies of the Province of Canada were becoming integrated, leading to potential investment opportunities for Americans. Between 1850 and 1851, the Province of Canada began receiving inquiries about purchasing land for a mill site on the Sauble River in the north region of the Saugeen Peninsula, south of Chief’s Point. Such a site would permit the construction of a sawmill for wood and a travel route down to Southampton and across Lake Huron to the United States.

[119] In June 1854, Lord Elgin secured a free trade agreement with the United States. This largely involved the elimination of tariffs on fish and timber and put increased pressure on the Imperial Crown to secure more land from Saugeen and Nawash. Tracts of land were also needed to facilitate the railway construction boom that was occurring in this general timeframe.

[120] The elimination of tariffs on timber, in particular, meant that there was an economic incentive to attracting more settlers to the Saugeen Peninsula. This was the main impetus for the Imperial Crown’s desire to obtain a surrender of land around the Sauble River for a mill site at the location of the waterfalls. The resulting economic opportunities arising from increased export was also a prelude to the creation of the two distinct reserves for Saugeen under Treaty 72, and the surrender of an area at the mouth, and to the south, of the Sauble River, as will be seen.

vi. Attempts by the Imperial Crown to Negotiate a Surrender of the Saugeen Peninsula

[121] Between June 1852 and October 1854, the Imperial Crown made a number of attempts to negotiate a surrender of the vast majority of the Saugeen Peninsula. As stated, the impetus for its efforts was to accommodate a growing settler population and to increase the economic opportunities of this region seen as largely timber, farming, transport and fishing. In exchange, the Imperial Crown offered to extend protection to Saugeen from the increasing encroachment its peoples were facing with respect to their fishing activities and onto its unceded territory.

[122] These attempts were led by Indian Affairs Superintendent T.G. Anderson and made throughout 1853 to the spring of 1854. Both Saugeen Deputy Chief/Aanikeogimma Madwayosh and Chief/Ogimaa Kegedonce rejected Anderson’s various proposals for the surrender of the majority of the Saugeen Peninsula.

[123] In July 1854, another proposal for the surrender of land at Sauble River was made by a former Indian Agent, J.W. Keating. However, that too was rejected by Saugeen.

[124] Later, in August 1854, Anderson again inquired as to the willingness of Saugeen and Nawash to surrender the Saugeen Peninsula subject to reserve lands being carved out and guaranteed.

[125] In response, these First Nations stated that they wanted to maintain “all the coast, as far north as Colpoy’s Bay (on Georgian Bay) and the Fishing Islands” (across from Chief’s Point in Lake Huron).

[126] Throughout the period immediately leading to Treaty 72, the evidence supports the view expressed most vigorously by Dr. Bohaker that Saugeen acted in a manner that demonstrated the commercial and sustenance importance to them of their fishery. This conduct included maintaining control over selecting the most viable leasing agreement for the Fishing Islands with the private Huron Fishing Company,[^25] training their young men to build barrels for salted fish, the process of coopering to prepare for a commercial fishing industry, and devoting “Band” funds to purchase items necessary to sustain commercial fishing. Saugeen continuously resisted attempts to induce them to surrender their peninsula, at the same time they took steps to diversify their economy.

[127] The record demonstrates, for example, in response to one of Anderson’s inquiries about terms of a potential surrender, Saugeen and Nawash made plans in 1852 for expenditure of their annuities to modernize and diversify their economic development by subdividing lots for farming, to create a joint stock company to provide the First Nations with control over their own trade, and to build a store that could also provide on reserve banking services. These proposals were rejected by Anderson out of hand. Saugeen also advocated for the establishment of a school for its youth that never materialized.

vii. Summary of the Combined Historical and Ethnohistorical Record Leading to Treaty 72

[128] The historical archival and ethnohistorical evidence, and the testimony of Chief Roote, demonstrates that the Saugeen people were focused on maintaining the Fishing Islands and the coastline of Lake Huron to the greatest extent possible. The coastline of Lake Huron and the Fishing Islands’ main utility was to facilitate fishing (both commercial and as sustenance) and, in terms of the coastline, to act as a passageway between the Indian Village to the south and Chief’s Point to the north connecting the two communities. The archival record in particular demonstrates that Saugeen was prepared to negotiate terms for some sort of more limited surrender in exchange for “privileges” that would better secure the prosperity of their future generations.

[129] Dr. Bohaker and Dr. Reimer generally agree that Saugeen’s objective in the years immediately leading to the Treaty was to preserve as much of the coastline as it could.

[130] In summary, prior to the Treaty of October 13, 1854, Saugeen and Nawash at joint fire councils had not surrendered the vast majority of their traditional territories north of the Saugeen River (and Owen Sound). Saugeen showed a determination to preserve the entire Lake Huron coastline north of the Half Mile Strip as well as the Fishing Islands. That said, by the time of the Treaty council of October 12 and 13, 1854, it was clear that Saugeen was also concerned about its ability to prevent increasing illicit encroachment by settlers on its lands, waters and natural resources. The archival record amply demonstrates that Saugeen raised concerns about “squatters” traversing their territory, illicitly fishing in their waters and taking timber from their land. These concerns co-existed with an interest by Saugeen in generating income from the sale of lots to settlers and diversifying their economy to include some agriculture.

[131] On the side of the Imperial Crown, it is clear based on the largely uncontested archival historical record leading to the Treaty council, and supported by the expert historians’ opinions, that its priority in 1854 was to secure land in and around the Sauble River for several reasons. It sought land along the Sauble River, including at the mouth of the river, for use as a mill site, to open up a water trade route to Southampton and on to the United States for exporting timber, to gain interior lands for transportation routes (railways and roads), and to expand timber harvesting and farming by settlers. The Imperial Crown’s top priority was to grow the non-Indigenous settler population in the northern part of the Saugeen peninsula to colonize it. The Imperial Crown had a great interest in populating the peninsula with settlers to enhance economic prosperity.

[132] It is also noteworthy that in and around this timeframe, the Lake Huron fisheries were declining drastically thereby becoming a less valuable commercial resource from the perspective of the Imperial Crown. The commercial fishery also became less advantageous for Saugeen, though it was still an important food source and generated much needed income to a population for whom income-based work was scarce. On the other hand, agricultural land was seen to be a positive enhancement for attracting settlers to populate the Saugeen Peninsula.

[133] The expert historians essentially agree that this economic reality in the early 1850s drove the eventual designation of two separate reserves, separated by the Sauble River mill site area and transportation passage, for the exclusive use of Saugeen. Dr. Bohaker and Dr. Reimer also agree that the Crown sought to preserve for itself a relatively small area of coastline south of the Sauble River. The issue upon which there is disagreement is the length of short amount of coastline that was ultimately obtained by the Imperial Crown for the mill site and transportation route and therefore part of the surrendered territory under Treaty 72.

[134] The expert historians also agree that the main impetus behind the Imperial Crown’s desire to obtain a surrender of the Saugeen Peninsula was economic (to attract settlers). Where they disagree is with respect to Saugeen’s motivation for ultimately agreeing to a surrender of the majority of their peninsula, including part of the coastline. Dr. Reimer’s opinion is that Saugeen’s impetus was purely economic, whereas Dr. Bohaker’s opinion is that Saugeen’s purpose was more nuanced, consisting of a desire to secure the future economic prosperity of their children and future generations as well as a desire to maintain their traditional ways of living off the land and waters and preserve their connection to the land and surrounding waters.

[135] In my view, Dr. Bohaker’s approach to the historical context leading to the Treaty is more reliable than Dr. Reimer’s in light of Dr. Bohaker’s inclusion of the ethnohistorical context that tells a more well-rounded story about the Saugeen, pre-treaty, than does the archival record which Dr. Reimer placed more emphasis upon. Both historians were careful thoughtful and measured in their testimony, however, where their respective opinions differ in a material way, I favour Dr. Bohaker’s opinion. That said, it must be emphasized that much of their opinion was in substantial agreement.

viii. Written Record of the Treaty Negotiations

(a) The Treaty Council – Treaty 72

[136] On June 22, 1854, Laurence Oliphant became the Superintendent General of Indian Affairs for a relatively short period of time.

[137] Superintendent General Oliphant arrived unannounced at Saugeen’s Village on October 11, 1854. He intended to hold a treaty council with Saugeen, Nawash and Colpoy’s Bay First Nations.[^26] However as it was still the fishing season, the Chiefs/Ogimaas, Deputy Chiefs/Annikeogimaas, and Councillor/gitchi-Anishinaabek were not in the village but at their fishing sites. Upon sending word to come for a treaty council, members of the governing council arrived. A treaty council was held on October 12, 1854, starting at 7:00 p.m. in the village church. By 1:00 a.m. on October 13, 1854, Treaty 72 had been signed.

[138] The First Nations were represented by fourteen chiefs, councillors and leading men. The Crown was represented by Oliphant, who was accompanied by Crown Land Agent Alexander McNabb and PLS Charles Rankin – yes, the very same Rankin responsible for the post-Treaty survey of these boundaries. McNabb and Rankin ultimately signed the Treaty as witnesses. As well, Peter Jacobs, described as an “Indian missionary”, acted as an interpreter for the Imperial Crown. It appears that two of the Treaty signatories, David Sawyer and Charles Keeshig, may have served as interpreters on behalf of the First Nations.[^27]

[139] By all accounts, Oliphant was eager to make his mark and succeed where his predecessor had repeatedly failed. He was determined to leave the treaty council with a signed treaty.

[140] No minutes of this treaty council were taken. The only contemporaneous written archival record we have describing the negotiations comes from Oliphant in the form of his report concerning the treaty council dated November 3, 1854. With the caveat that the Treaty Report is written from the perspective of Oliphant, the parties accept that it generally sets out the chronology of events of October 13 – 14, 1854.[^28]

[141] According to his Treaty Report, Oliphant opened the Council by making his proposal for surrender and why, from the Crown’s perspective, it would be mutually beneficial. It appears that Anikeogimaag Madwayosh was vocally opposed. However, after a recess to allow the Saugeen and Nawash leaders to discuss Oliphant’s proposal, some active discussion ensued from the other leaders asking for increased boundaries for the proposed reserves and the addition of other “privileges”.

[142] In his Treaty Report to the Governor General, Oliphant wrote the following description of the discussion following the recess:

Upon returning to the council I found that the chief, Alexander Madwayosh, had been completely out-voted. Some of the other chiefs now came forward to stipulate for increased limits to their reserves and fresh privileges, in consideration of their readiness to adopt the views of Government. These were discussed seriatim; each party finding occasional concessions necessary, until we decided upon the terms of the surrender, as embodied in the document herewith annexed, which I drew out in the presence of the chiefs, and which was afterwards read and explained to them. By 1 o’clock A.M. the signing, sealing and affixing of totems was concluded, and the council broke up.

[143] I accept that this passage sets out the negotiation process and basic elements accurately. There is no evidence to the contrary. Accordingly, I find there was an active negotiation in which each of Saugeen and Nawash’s concerns for increased limits to their reserves and fresh privileges were discussed one after the other (seriatim) and that compromise occurred. I also find that the terms of Treaty 72 were handwritten by Oliphant at the Treaty Council and interpreted and explained to the Indigenous leadership at this Treaty Council. Only after this occurred, did the leadership affix their doodems (referred to in the Treaty Report as totems) and was the document witnessed by Rankin and McNabb.

[144] I also find as a fact that PLS Rankin was present throughout the Treaty Council and heard the negotiations and resulting terms of surrender, including the “limits” of the five resulting reserves which included, of course, what became IR 29. As will be seen, Rankin conducted a preliminary traverse for his survey of IR 29 shortly after the Treaty was formed. There is no dispute with respect to these facts or evidence to the contrary.

[145] In addition, I find as a fact that Madwayosh was originally opposed to the surrender proposed by Oliphant but was eventually out-voted or changed his mind. Again, there is no dispute nor is there any evidence to the contrary.

[146] Thus, under the terms of Treaty 72, five reserves were created. Two were for the exclusive use of Saugeen (called IR 29 and Chief’s Point), two were for the exclusive use of Nawash (called in Treaty 72 the “Owen Sound Indians”) and one reserve was set aside for the Colpoy’s Bay Indians.

[147] Important to this analysis, certain islands in each of Lake Huron and Georgian Bay were reserved from surrender, including the Fishing Islands which were reserved for the exclusive use of Saugeen. However, Chantry Island, located near the mouth of the Saugeen River, was surrendered with the stipulation that it would be sold to McNabb (who was the local Indian and Crown Land Agent) with the proceeds of sale to benefit Saugeen. Notably, Saugeen had already agreed to lease this island to McNabb under a 99-year lease in March 1854 by Band Council resolution. This latter Treaty term was confirmed by Order in Council on May 9, 1855 and in January 1856, Letters Patent were issued reserving to the Crown parts of the island as required for a lighthouse, piers and breakwaters.

[148] Also notable, Treaty 72 reflected the first proposed surrender by the Crown in which Saugeen did not reject the concept of two separate reserves separated by the Sauble River. In all prior efforts, Saugeen had resolutely maintained its position for a single large reserve comprised of the entire coastline of Lake Huron north of Southampton and the Half Mile Strip, up to and including Chief’s Point. Under this Treaty, Saugeen and Nawash surrendered a further 450,000 acres.

[149] Oliphant’s Treaty Report was sent to Governor General Lord Elgin on November 26, 1854.

[150] In his Treaty Report, Oliphant advised that he had “appended a sketch map in which the limits have been defined as accurately as possible without actual survey”.[^29]

[151] A plain view of Oliphant’s map shows a fairly significant gap between the Chief’s Point reserve and IR 29; however, it does not have a scale, nor does it purport to be drawn to scale. It does not claim to be an accurate map, much less a survey. Very little, in my view, can be concluded from this sketch map, drawn by a layperson with access to no reliable pre-existing maps of this region other than Bayfield’s hydrographic map which is of limited utility given its purpose. The fact there is little evidence to suggest this sketch map was shown to the Indigenous leadership, much less approved by them, further undermines its probative value with respect to determining whether the “spot upon the coast” was intended to be at Lot 31 or Lot 26 (a relatively small distance of 1.4 miles in relation to the subject coastline). A map was shown to the Indigenous leadership at the Treaty Council, but it is uncertain as to whether Oliphant’s sketch map was that map. Even if it was, given its lack of scale and accuracy it is of little value in terms of pinpointing the “spot upon the coast” and did not feature in the evidence of the various boundary and survey experts.

[152] As noted by Dr. Reimer, Oliphant’s sketch map “shows the North-East point of the Reserve in the vicinity of the fourth stream, which on Bayfield’s hydrographic chart is situated near 44 37’ latitude. But the text of the Treaty does not suggest that the “spot on the coast” is the mouth of a stream that flows into Lake Huron, nor to any other land or water feature”. This is curious since other boundaries do tend to be referenced by way of a geographical marker when available such as the ravine and the newly constructed bridge reference of the west boundary. Dr. Reimer accounts for her description of the Oliphant sketch map on the basis of Oliphant’s rudimentary knowledge of the peninsula and the lack of mapping available at that time. This again demonstrates the limited utility of Oliphant’s sketch map in defining the “spot upon the coast”. Had it meant to be marked by a stream, the Treaty would have said so based on a reading of the Treaty as a whole.

[153] Dr. Reimer adds that nonetheless it is plausible that the spot upon the coast and about 9 ½ miles from the Treaty “were reference points understood by the Saugeen First Nation delegates”.[^30]

[154] Also of import is the fact that at this time, the Imperial Crown had limited cartographic knowledge of this region. It had yet to survey any of this heretofore unceded Saugeen/Nawash territory and the only map in existence was a hydrographic map prepared by Captain Bayfield in 1822, which depicts the west coastline of Lake Huron from the perspective of water ways and coastline markers aimed at showing economic potential along that coast. Both historians agree that the objective of Bayfield’s map was not to survey the land; rather the map’s focus was on water navigation routes. This was the only map that depicted the coastline at the time of the Treaty formation.

[155] The surrender was confirmed by Order in Council on February 3, 1855 and registered on February 16, 1855.

[156] The lands reserved by the Saugeen included the site of their council fire (at the Saugeen Village) and their burial ground. In addition, the preservation of much of the coastline together with the Fishing Islands suggests that maintaining fishing activities continued to be a fundamental objective of Saugeen, with the recognition that the Imperial Crown insisted that the coastline at the location of the Sauble River and to the south be surrendered for its own purposes of facilitating a mill, water route and some settlement land around that river.

[157] As evident by the terms of the Treaty, another important objective secured by the Saugeen was the promise that the Imperial Crown would protect their reserve lands from encroachment by settlers, as well as an annual annuity which Saugeen had already demonstrated would be put to securing the prosperity of their future generations. In exchange, the Imperial Crown achieved its objectives of securing the vast majority of the peninsula for settlement purposes, the timber trade, agriculture, transportation routes and the mill site. Notably, the archival record does not support a finding that, at this point in time, the fishing industry at Lake Huron was a significant priority from an economic perspective for the Imperial Crown (commercial or otherwise), as the fishing stocks were experiencing a steep decline.

[158] It is also trite to say that there was no suggestion of the later cottage industry that would eventually make the beachfront an attractive economic feature of the peninsula. Indeed, beaches or sand as an economic interest or commodity are not mentioned at all in the Treaty Report by Oliphant nor by representatives of the Imperial Crown in the context of its attempts to secure surrenders from Saugeen culminating in Treaty 72.

[159] Rather the expert historians agree that both the Treaty and Oliphant’s Report confirm that about nine and a half miles of coastline as well as Chief’s Point were reserved, and these were Saugeen’s traditional and active fishing grounds.

x. Immediate Aftermath of the Treaty

[160] Returning to the principles of treaty interpretation from Marshall, the post-treaty conduct of the Treaty parties can be considered insofar as this may contribute to the understanding of the Treaty terms by those parties. However, the closer to the signing of the Treaty the conduct is, the more likely it is to be relevant. This is because, as time marches on, the post-treaty conduct becomes more vulnerable to the interpretation of subsequent Treaty beneficiaries (as opposed to those who signed the Treaty). Notably, Oliphant left his post shortly after Treaty 72 and there is no record of him having been consulted about any boundary disputes raised by Saugeen.

[161] The Court of Appeal in Restoule, at para. 108, affirmed that extrinsic evidence may be admissible to assist the trier of fact in ascertaining how the treaty partners understood the Treaty. The court also warned, at para. 154, that post-treaty evidence and evidence of the parties’ subsequent conduct must be treated with “extreme caution”. At para. 153, the court cited Lamer CJ’s caution in Sioui, at p. 1060, that “the subsequent conduct which is most indicative of the parties’ intent is undoubtedly that which most closely followed the conclusion of the document”.[^31]

[162] With these principles and cautions in mind, I will first examine the immediate post-treaty conduct of the treaty partners, which is of particular significance to determining the Treaty partners’ understanding of the Treaty’s description of the east boundary and the reserve boundaries of IR 29 in general. This leads to a consideration of the extrinsic evidence concerning Rankin’s preliminary traverse in 1854 and then his formal survey in 1855 - 1856.

(a) Rankin’s Preliminary Traverse and Survey : The Historians’ Evidence

[163] The most important post-Treaty conduct occurred when PLS Rankin[^32] was instructed to undertake a preliminary survey of the reserves and the peninsula as a whole, including the townships, town plots, and farm lots, and then to prepare his official survey. It is important to recall that Rankin was present throughout the Treaty council and was one of the witnesses to sign the Treaty.

[164] Rankin was to “examine the whole tract” in order to recommend “the best method of dividing it into lots”. These instructions were formally issued by Oliphant on October 14, 1854. His task was initially to determine the reserve boundaries and to report on the condition of the land that was surrendered, with a view to the sale of those surrendered lots which would financially benefit Saugeen.

(i) Rankin’s Preliminary Traverse – 1854

[165] Rankin began his preliminary traverse in October and November 1854 (before winter made such work impossible). The purpose of the traverse was to walk the boundaries of the reserve as closely as possible to the terms set out by the Treaty for IR 29 and of the surrendered land to be set out in township lots for Amabel Township. There was, as yet no map of the peninsula for Rankin to work from. This traverse was a precursor to the official survey of Amabel Township.

[166] As a surveyor, Rankin was required to keep daily notes of his progress. His “Journal of Preliminary Survey of the Southern portion of the Owen’s Sound and Saugeen Peninsula” dated October 14, 1854 sets out his recorded traverse.[^33] In his Journal, Rankin recorded that he began his traverse at Saugeen on October 20, 1854, with a view to conducting a “traverse of Lake Huron shore” “from Saugeen to Fishing islands as a first step towards enabling me to project a plan of division”.

[167] This initial traverse occurred between October 20 and 27, 1854. According to his Journal, on October 28, 1854, Rankin “planted a post as the S.E. angle of the Chief’s Point Reserve” one half mile upriver (from the Sauble River), consistent with the terms of Treaty 72 as regards this reserve.

[168] On October 30, 1854, Rankin returned to Saugeen and began surveying part of the “north bank of Saugeen River” in preparation for surveying town lots for Southampton (the “tongue of land”). He then mapped out the “east boundary of the tongue” (the Southampton lots) from November 1 to 3, 1854. This concluded his work on the initial traverse of IR 29.

[169] On November 4, 1854, according to his Journal, Rankin proceeded to Owen Sound and did some preliminary survey work there. From November 27 to December 7, 1854, Rankin undertook the survey “for road to Fishing Islands”. He then went to Colpoy’s Bay and worked until December 1854, when the snow became too deep to continue his work.

(ii) Rankin’s Survey

[170] On April 26, 1855, Rankin received his instructions to conduct the detailed surveys of the reserves made under the Treaty from the newly appointed Superintendent General of Indian Affairs, Lord Bury.[^34] These instructions superceded Oliphant’s instructions. Rankin’s assistant, George Gould, conducted a preliminary survey traverse of IR 29 from May to September 1855, as recorded in his Journal, Fieldbook 322. At the same time, Rankin was instructed to start the official survey of the Southampton town plots to the north of the Saugeen River.

[171] However, Saugeen, upon seeing Gould beginning to mark the west boundary “due north”, objected to that trajectory. This is relevant as it potentially relates to the location of the north terminus of the east boundary.

[172] More specifically, Saugeen and Nawash’s council passed a band council resolution dated May 5, 1855, expressing dissatisfaction with the survey of the west boundary. The resolution stated that the boundary has been commenced “about four hundred yards too far southward, and then not running the line through an opening, called ‘Copway’s Road’ as expressed and understood by Mr. Oliphant and ourselves, at the time our Treaty was made”. Saugeen indicated that this was important because otherwise their village was cut off from the lake. No reference is made to a map having been made at the Treaty by Oliphant. Saugeen asked that the survey stop until it could “confer with the Government on this subject”.

[173] When Rankin raised this concern with Superintendent Bury, Bury’s initial response was that the Governor General’s instructions were to “carry out the survey of this plot in strict accordance with the terms of the Surrender”.

[174] In May 1855, the Saugeen and Nawash councils caused a petition to be sent on their behalf requesting a meeting with the Governor General to discuss certain promises they alleged were made by Oliphant at the Treaty Council but not kept. One of the concerns expressed in the petition was that they saw that Rankin had, the prior fall, marked out the wrong location for the west boundary because he ran a marker north from a point just west of the Saugeen village, at a creek that flowed into the Saugeen River. The resulting boundary commencing from that point cut Saugeen off from access to Lake Huron. It also enclosed their corn fields within the boundaries of two park lots, bisected by a planned road allowance for a road that was called Copway Road. This marked boundary also separated Saugeen from the proposed reserve’s log homes and shanties that Saugeen had built and were leasing to settlers.

[175] This issue became urgent since Rankin had started the survey process for the Southampton plots north of the Saugeen River along the Treaty-defined west boundary of IR 29. He was under severe pressure from the Imperial Crown to get this survey completed to facilitate the sale of lots to settlers which was targeted for fall.

[176] In the petition, these First Nations stated “[t]hat the wording of the late Treaty is not in accordance with the map laid before the council the night the Treaty was discussed, which we are prepared to show.” While the referenced map is no longer in Saugeen’s possession, the expert historians agree that this issue related to the location of the western boundary.[^35]

[177] The First Nations did not receive a response from the Governor General and no meeting was granted.

[178] An incident then occurred when George Gould and his crew, who were assisting PLS Rankin, began their survey of the west boundary bordering the Southampton town plot in May 1855. On May 28, 1855, Gould noted in his field notes that they had to stop their work because of threatened violence from some of “the Indians”. Gould sent word to Rankin who arrived 8 days later, on June 5^th. Rankin was able to resolve the matter without resort to any military assistance offered by the Imperial Crown. However, this incident shows that the First Nations were aware of, and observing, at least this part of the survey and checking to ensure the survey markers were in accordance with what they believed they were to receive under the Treaty. It must be remembered that Saugeen and Nawash did not receive a physical copy of the Treaty, nor would they have received a copy of Rankin’s instructions or his field notes. They could only react as to what they saw was being done on the ground.

[179] However, as a result of the growing tensions over Rankin’s marking of these boundaries, and the other unaddressed concerns reflected in the petition, a Grand Council was held on July 19, 1855 between the leadership of Saugeen and Nawash and Lord Bury (then Superintendent General of Indian Affairs) called the Allenford Council. Lord Bury agreed to submit the requested boundary changes for both reserves, noting that it would have to be the Governor General who made the final decision, having accepted the surrender in the first place. After receiving assurances from Bury, the First Nations consented to the respective surveys proceeding.

[180] In the meantime, Rankin was being pressured by Lord Bury to complete his surveys of the various reserves as soon as possible since the Crown wanted the land on the surrendered parts of the peninsula at Lake Huron subdivided into lots to be put up for sale. On August 11, 1855, Rankin wrote to Lord Bury and forwarded his completed plan of the Southampton town plot bordering the west boundary of IR 29.

[181] Rankin recommended that the west boundary be changed so as to follow Copway Road (which was then a dirt pathway), which would result in a small addition to the coastline of IR 29 to be received by Saugeen. As Rankin was at the Treaty Council it is likely that if he believed that the west boundary agreed to had been misdescribed in the Treaty, he would have said so – he was the surveyor with expertise that the others did not have relating to marking and describing boundaries. Accordingly, it is a reasonable inference that the change requested by Saugeen to the west boundary was not reflective of what had been ultimately agreed to at the Treaty Council. By this time, Oliphant had left his post and there is no evidence suggesting he provided his views. It may well be that Saugeen believed they had asked for the west boundary to follow Copway Road, but it was not reflected in the Treaty, giving rise to a latent ambiguity in this term of the Treaty from the perspective of Saugeen.[^36]

[182] Bury accepted Rankin’s recommendation, which did not require an amendment to the Treaty. The change to the west boundary of IR 29 was approved by Order in Council, dated September 25, 1855, stating:

On a Memorandum dated 12^th Instant from the Superintendent General of Indian Affairs, submitting certain proposed changes, as shewn in two certain plans, in the shape of the Indian Reserves in the Tract commonly called the Saugeen Peninsula, lately surrendered to the Crown, both changes having been assented to by the Indians in Council; and recommending:

…That the Reserve known as the Saugeen Reserve now bounded on the West by a straight line running due north from the River Saugeen at the spot where it is entered by a Ravine immediately to the west of the village, be bounded instead by the Indian path called the Copway Road, which takes a North-Westerly direction, as shown by the red line in the plan. This change will give the Saugeen Indians a small increase of frontage on Lake Huron, and will not interfere with the town plot now laid out on the tongue of land contained between that lake and the River Saugeen.” [Emphasis added.]

[183] In this Order in Council, there is no mention of amending or correcting Treaty 72 or referencing any of the other boundaries of IR 29. Indeed, there is no indication in the Order in Council that it is amending the terms of the Treaty at all, but rather, it is only altering the west boundary post-Treaty. The Order in Council does say that the resulting change will result in a small addition to the coastline of the reserve which is shown on the “sketch of alteration to west boundary” attached by Bury dated September 1855. That sketch shows only a small portion of the reserve at and around Saugeen’s village at the Saugeen River. The fact that the Order in Council acknowledges an addition to the coastline, as opposed to a replacement of a segment of this coastline boundary, suggests that the north terminus of the east boundary was not altered by this Order in Council. This conclusion is supported by the lack of reference to any amendment to Treaty 72.

[184] Importantly, in Bury’s letter responding to Rankin’s proposal, Bury agrees that this boundary change will not require Rankin to re-survey the town plots for Southampton, and this amendment was not registered on Southampton’s official plan. This factor seemed to be determinative with respect to the Crown’s agreement to change this portion of the west boundary.

[185] As noted by Dr. Bohaker, based on the archival record, the Imperial Crown characterized the Copway Road amendment issue as a “misunderstanding” as between the Treaty parties — not as a mutual mistake in the Treaty’s description.

[186] The expert historians agree that it was likely the intention of Saugeen when they entered into Treaty 72 that the west boundary would run northwesterly, as opposed to “due north”, along Copway Road rather than from the creek next to their village, and that it would intersect with Lake Huron’s shore. This position is supported in the archival record.

[187] As stated, against these boundary disputes raised by Saugeen was the clear pressure placed on Rankin by the Crown to complete his survey of IR 29 so as to meet the deadlines for putting the surrendered land in Amabel Township up for sale.[^37]

[188] From August 22 – 31, 1855, Gould travelled from the Half Mile Strip north to Lot 26, Concession D, Amabel Township and surveyed the boundary between Concession C and D north to Lot 26. On September 1, 1855, Rankin joined Gould’s party to commence “the running of the Eastern boundary of the Saugeen Indian Reserve, in accordance with the treaty”.[^38]

[189] On September 3, 1855, Rankin and Gould traversed the Sauble River. The survey field notes for Amabel Township (which included IR 29) record that posts were planted at the side road allowances between Lots 25 and 26 and between Lots 30 and 31, Concession D. Rankin purposely omitted planting posts within a chain of Lake Huron’s shoreline (contrary to his instructions) because, in his view, posts planted that close to the water’s edge would likely be washed away. Therefore, Rankin proposed to Indian Affairs that “a reservation of a chain in breadth, to allow all boating people access to the beach”… “should, as is usual, be mentioned in the patent”.

[190] Dr. Reimer’s opinion is that when Gould met with Saugeen council on September 14, 1855 it “is plausible that the Chiefs will, at minimum, have been aware that the East boundary was now surveyed”.[^39] Dr. Reimer notes, however, that Gould’s journal provided little detail about that meeting.

[191] Saugeen’s understanding at the time of the Treaty Council was likely that the west boundary would run along the dirt pathway known to them as Copway Road to preserve the direct route to Lake Huron. However, that understanding did not affect where Saugeen and the Imperial Crown understood the “spot upon the coast” to be. Saugeen would not have used miles as a unit of measurement at that time – this was a colonial unit of measurement. Saugeen did, however, know the coastline intimately. The terms agreed upon as reflected in the Treaty included the west boundary as was initially surveyed by Gould. Saugeen agreed to the boundary description reflected in the Treaty at the time it was interpreted at the Treaty Council and signed but misunderstood the trajectory of the west boundary. The fact that Rankin, who was a witness to the treaty negotiation and the signing of the Treaty itself, did not state that there was an error in the Treaty description of the west boundary but rather proposed an alteration that would not interfere with his Southampton survey further strengthens this view.

[192] In the alternative if there was a misunderstanding on the part of both Saugeen and Oliphant, then this was a latent ambiguity that was resolved in favour of Saugeen but did not, as will be seen, alter the north terminus of the east boundary, also known as the “spot upon the coast”.

[193] The Imperial Crown, as evidenced from Bury’s representations resulting in the Order in Council, took the position that the land surrendered had been accurately described in the Treaty, but that an accommodation would be made to alter the west boundary and that this would result in an addition of coastline to the reserve. No reference was made to a corresponding amendment to the east boundary. That this was an after-the-fact accommodation by the Imperial Crown to ensure that Rankin could carry on with his survey of the west boundary in a timely manner is further supported, in my view, by the statement in the Order in Council that such alteration of the boundary would have no impact on the surveyed Southampton town plot. In other words, this proposed change was inconsequential from the perspective of the Crown who, at the time, was anxious that Rankin’s survey be completed to facilitate the public auction for the sale of the surrendered lands in Southampton and Amabel.

[194] I find as a fact that, while there was a misunderstanding on the part of Saugeen regarding the location of the west boundary as following along Copway Road to Lake Huron’s shore rather than “due north” at the time of signing, nonetheless, the boundary as described in the Treaty is what was intended by the Imperial Crown and agreed to by Saugeen. In any event, the subsequent change to the west boundary to follow Copway Road at a northwest angle further south than the Treaty-defined west boundary had no effect on the location of the about 9 ½ miles from a spot upon the coast which distance was still to be measured from the west boundary as described in the Treaty. Otherwise, there would have been no additional coastline received by Saugeen as a result of the Copway Road amendment.

[195] Ultimately, as will be seen in a review of the expert evidence on the survey, Rankin identified the “spot upon the coast” to be located within Lot 31, Concession D, which is about nine and a half miles from the original west boundary as defined by the Treaty. Accordingly, Rankin, who was present at the signing of the Treaty, did not interpret the southerly adjustment to the west boundary as altering the location of the “spot” upon the coast either.

[196] Accordingly, the “spot upon the coast” did not move as a result of the 1855 Order in Council but was to be measured from the original west boundary as described in the Treaty.

ix. The Public Auction

[197] Rankin submitted his survey return to Pennefather, Superintendent General of Indian Affairs on May 26, 1856 which included his final Plan of Survey of Amabel dated 1856.[^40] The Imperial Crown’s acceptance of the survey was subject to approval by its Crown Lands Department.[^41]

[198] The Imperial Crown determined it would proceed with the public auction of the lots surveyed by Rankin for Amabel, Albermarle and Keppel Townships pending the review by the Crown Land examiners. These lots included Lots 26 to 31 along the Disputed Beach.

[199] A map of the lands for public auction was published on July 31, 1856 by the firm of Dennis & Boulton, Surveyors & Land Agents. This map was published “under Authority of the Indian Department of Canada”. This map appears to show the Disputed Lots as ending at Lake Huron. However, this map does not purport to be a survey. Rather, it was used as a demonstrative aid for prospective purchasers at the public auction. The map describes the lots as “Wild Lands”. Dennis & Boulton’s role at this public auction was to act as a land sales agent.

[200] The public auction was conducted in Owen Sound from September 2 to September 6, 1856. Certain of the Disputed Lots (26, 27, and 29) did not sell and were held over to the next auction. The other Disputed Lots (28, 30 and 31) were sold. However, none of the purchasers of the Disputed Lots received the patents for those lots because those sales were ultimately not completed by the original purchasers for various reasons, including, for example, failing to pay the balance of the purchase price.

[201] Rankin was present at this public auction with his field notes, for purposes of answering questions about the lots for sale. There is no evidence, however, concerning what information, if any, he may have given or to whom.

[202] The remainder of the Disputed Lots were sold at a second public auction held in September 1857.

x. Where did Rankin Mark the North Terminus of the East Boundary of the Saugeen Reserve No. 29?

[203] The next section will review the evidence relating to where PLS Rankin surveyed the east boundary of IR 29 and, in particular, that boundary’s north terminus (or north east angle) and why.

[204] In short, I find that Rankin placed the north terminus of the east boundary at around the road allowance at Lots 25 and 26, rather than at Lot 31 where he planted a post marking the “spot upon the coast” under Treaty 72. He did this in exercise of his discretion, applying ordinary surveying principles applicable to deeds, to resolve a physical obstacle that he encountered when he marked the Treaty-defined boundary on the ground; namely, the concavity (or inward curve) of Lake Huron’s coastline at and south of the “spot”. The concavity meant that Rankin could not run the east boundary in a straight line due south to the Half Mile Strip entirely on dry land so he moved the “spot” to a point that was approximately 1.4 miles south of the location established by the Treaty. The 1.4 mile strip of beach is the Disputed Beach.

(a) Introduction and the Parties’ Positions

[205] In addition to the historical perspective on Rankin’s traverse and final survey, the court received expert evidence from the perspective of boundary and surveying principles.

[206] A brief recap chronology of events to put Rankin’s official survey of the Township of Amabel and the east boundary of IR 29 into context is as follows:

a) October 13, 1854: Saugeen and the Crown enter into and sign Treaty 72 in the presence of witnesses, including Rankin;

b) October 20 – 27, 1854: Rankin carries out a preliminary traverse (walk) of Lake Huron from the Saugeen River in the south to the Fishing Islands in the north;

c) October 28, 1854: Rankin plants a post marking the southeast angle of Chief’s Point reserve north of Sauble River;

d) October 31 – November 3, 1854: Rankin performs a preliminary survey of the west boundary, and estimates where the “spot upon the coast” about 9 ½ miles from which to commence his survey for the east boundary southward;

e) February 3, 1855: Treaty 72, with the reserve boundaries, is confirmed by Order in Council;

f) April 26, 1855: Rankin receives fresh instructions from Lord Bury to survey the Saugeen Peninsula, including IR 29, in accordance with the terms of Treaty 72;

g) May 1855: Saugeen raises a dispute with Rankin’s assistant surveyor, Gould, regarding the location of the west boundary, which Saugeen says was supposed to be at Copway Road (northwesterly) and not “due north” as stipulated in the Treaty. Rankin intervenes and the Crown responds by affirming that the terms of Treaty 72 accurately reflect what was agreed to at the Treaty council and initially takes the position there will be no change in the trajectory of the west boundary;

h) July 19, 1855: the Allenford Council occurs, at which time Lord Bury agrees with Saugeen and Nawash to recommend a change to the west boundary to follow Copway Road which is in a northwesterly direction from the south boundary out to the coastline instead of due north;

i) September 4, 1855: Rankin begins his official survey of the east boundary, starting south from around Lot 31, based on his earlier preliminary survey of the west boundary. Rankin places a post within Lot 31 which is identified in Gould’s field notes as “post of Ind Res”;

j) September 27, 1855: the Crown formally approves the Copway Road amendment by Order in Council altering the placement of the west boundary;

k) October 12, 1855: Rankin prepares a draft map which shows a post with the notation of northeast angle of IR 29 at around Lot 31 with a thin line drawn south from Lot 31, through Lake Huron (close to the coastline), to Lot 25/26;

l) May 22, 1856: Rankin submits his plans, reports and field notes including his final Survey Plan of Amabel to Indian Affairs which passed it on to the Crown Lands Department for review;

m) June 10, 1856: Commissioner Joseph Cauchon, of the Crown Lands Department, sends Rankin’s submissions back to rectify many errors ascertained in the course of review;

n) November 1856: The Commissioner of Crown Lands signs the Return of Survey for the Amabel Township, and it is deposited with Crown Lands Department, including Rankin’s final Plan of Survey and field notes.

o) November 1856: Engineers, Ridout and Schreiber, prepare a hydrographic plan that shows a post at Lot 31. The plan labels the post as: “Post marked: N.E. angle of Saugeen Reserve according to Treaty boundary running south”. This is the post planted by Rankin during his traverse.

[207] In a nutshell, Saugeen’s primary position is that Rankin properly placed the north terminus of the east boundary at Lot 31 in September 1855 and marked it with a post. Saugeen states that Rankin ran his chain line completely on dry land south from Lot 31 to the south boundary at the Half Mile Strip in a straight line, consistent with the testimony of its surveyor expert, Mr. de Rijcke. In other words, Rankin properly marked the boundary as crossing the beachfront of Lots 26 to 31 on dry land as it existed in 1855, but he did not reflect that northern part of the east and west boundaries in any way on the final Plan of Survey. In the alternative, if Rankin was unable to run the line on dry land between Lot 31 and 26, Saugeen submits Rankin wrongly exercised his discretion with the effect of shortening the coastline portion of its reserve contrary to the promise made in the Treaty.

[208] Similar to Saugeen, Canada’s position is that Rankin was able to draw the boundary on dry land from Lot 31 to Lot 26 as per the terms of the Treaty. Canada reasons that, based primarily on Rankin’s field notes, which it says are more authoritative and precise than the maps and sketches relied upon by the defence experts, Rankin exercised his discretion to create an additional short north boundary connecting the east and west boundaries. This ensured that Saugeen received the “about” nine and a half miles of coastline from Lot 31 to the Treaty-defined west boundary expressed in the Treaty’s text rather than arbitrarily shortening the coastline reserve to 8.1 miles. This additional boundary captures the Disputed Beach. Canada adopts Mr. de Rijcke’s expert evidence.

[209] Ontario’s position is that the Crown had discretion under the Treaty to determine the exact location of the reserve boundaries. Therefore, Rankin had discretion under the Treaty to locate the northern terminus of the east boundary where he did. Ontario relies on the Treaty description of “about” in “about (9 ½) nine and a half miles from a spot upon the coast” as conferring this discretion. Ontario argues there is language in the Treaty vesting discretion in the Crown with respect to locating the boundaries for the Nawash and Colpoy’s Bay’s reserves as well. The only caveat, says Ontario, is that the exercise of discretion had to be consistent with the terms of the Treaty. Ontario argues the fact that neither Rankin’s nor Gould’s survey journals state that they could not run the boundary line in accordance with the terms of the Treaty, means they were able to do so. The reason the “spot upon the coast” could be moved to where Rankin ultimately placed it (between Lots 25 and 26) is because the word “about” allowed him to account for latent ambiguities – in this case the concavity of Lake Huron’s coastline which, it argues, prevented a straight line being run on dry land from Lot 31 to be run south to Lot 25/26. Ontario relies on the opinion of its expert, Dr. Ballantyne, for this theory based on the resolution of a latent ambiguity.

[210] The basic position of the Landowners is that Saugeen was not guaranteed 9 ½ miles of coastline under the Treaty, and that the spot upon the coast was only a starting point for creating the north terminus of the reserve’s east boundary. Furthermore, the Treaty did not create the reserve boundaries but established a process for determining where the north terminus of the east boundary would lie: Rankin exercised his judgment appropriately by placing it at the road allowance between Lots 25 and 26. Furthermore, Rankin’s final Plan of Survey accurately establishes the northeast angle of the east boundary at this road allowance and this is consistent with the Treaty. These defendants rely on Mr. Fediow’s opinion confirming that this is the accurate location of the northeast angle of IR 29, consistent with Rankin’s final Plan of Survey of Amabel. They submit that Rankin’s own field notes and the various maps created in and around this time frame corroborate this requested finding. However, where there is a conflict between the maps and field notes and Rankin’s final Plan of Survey, the final Plan of Survey must prevail.

[211] In the alternative, these defendants argue that if Rankin had to exercise discretion in light of encountering a latent ambiguity in the form of the concavity of Lake Huron’s coastline, then that discretion was exercised appropriately with the same result – the north terminus of the east boundary of IR 29 is located at the road allowance between Lots 25 and 26, as marked by Rankin on his final Plan of Survey, and is consistent with the terms of the Treaty. These defendants state it matters not whether Dr. Ballantyne’s opinion that Rankin ran his line between Lots 31 and 26 on wet sand, or Mr. Fediow’s opinion that Rankin ran his line under water between those lots, is the correct one. In either event, Rankin had the right to exercise his judgment to commence the northern end of the east boundary where he did. Furthermore, Saugeen received what it was promised because, with the additional coastline received under the Copway amendment, it received close to 9.5 miles of Lake Huron coastline and some additional interior land as well.

(b) The Shape of the Coastline at the Disputed Beach at and after 1855 – Geomorphology Evidence

[212] Before I turn to the expert survey and boundary evidence, I will briefly address the expert evidence on the configuration of Lake Huron’s coastline at around the time of Rankin’s preliminary traverse and survey. I do this since the expert survey evidence relied on this evidence to various degrees in forming their respective opinions regarding where it is Rankin likely marked the north terminus of the east boundary and why.

[213] The main objective of this expert evidence was to try to reconstruct the width of the coastline across the Disputed Beach between Lots 25 and 31 at the time of Rankin’s survey.

(i) The Expert Witnesses

Michael Davies

[214] Dr. Davies is a civil engineer. His applied science background is as a coastal engineer in the application of geomorphology. He testified on behalf of the Town. He was qualified as an expert in the field of coastal engineering and geomorphology.

[215] Dr. Davies’ opinion is that, based on the long-term trends in water levels and other factors at Lake Huron since 1855, it is likely that there has been a significant change in the shape of Lake Huron, particularly at the northern end of it, notably in the concavity of the shoreline. In his opinion, in 1856, the shoreline in and around the Disputed Beach would have been further inland than it is today and likely east of Lakeshore Boulevard North.

[216] Dr. Davies concluded that since the 1850’s, the shoreline along the Disputed Beach has migrated lakeward or in a westerly direction by:

(a) Between 300 and 440 feet at the north end of Sauble Beach around Lots 33 and 34;

(b) Between 80 and 400 feet around Lots 30 and 31 (the “spot”) and

(c) “at least” 60 feet around Lots 25 and 26 and possibly as much as 300 feet.

[217] Of particular significance to the surveying experts, Dr. Davies testified that station 59 of Rankin’s traverse (Lot 30) was likely the eastern most point of the inward curve of the Disputed Beach at the time of the traverse in 1854.[^42]

[218] Dr. Davies agreed under cross-examination that his analysis and conclusions were based on a long-term perspective of the gradual change in the coastline and were not meant to pinpoint the shape of the coast, water level, or beach width at any single point in time. He explained that over time and since the Treaty, the water levels of Lake Huron have decreased and therefore the coastline has migrated lakeward with the consequence of wider beaches along the Disputed Beach.

[219] Dr. Davies acknowledged that the water level data for Lake Huron prior to 1920 is limited – only one such gauge existed and that was to the south of Sauble Beach at Harbour Beach. Since 1920, water levels have been regularly recorded (annually). He agreed that the lake level data from 1850 to 1900 is therefore less reliable because of the paucity of that data. However, Dr. Davies maintained that he used the most reliable data available from that historical time period.

[220] Notwithstanding the shortcomings of the early lake-level data, Dr. Davies maintained that the evidence over the long term shows that the shape of Lake Huron has changed, reflecting a gradual decrease in water level and resulting in accretion of sand to the beach fronting Lots 25 to 31. Notably, the beach currently in front of the Disputed Lots is much wider now than it was during Rankin’s traverse and subsequent survey.

Joseph Desloges

[221] Dr. Desloges testified on behalf of Saugeen. He is a full professor at University of Toronto and a registered professional geoscientist. He was qualified as an expert in the area of geomorphology with a specialty in the geomorphology of rivers and freshwater lakes and their shorelines. He was called to respond to the expert evidence of Mr. Davies.

[222] Dr. Desloges explained that geomorphology is about the study of the earth surface processes and landforms. He is a specialist in rivers and lakes, including the transport of sediment to coastal shorelines. He explained that accretion is the permanent and semi-permanent deposition of sediment.

[223] It is his opinion that it would be virtually impossible to reconstruct the profile of Sauble Beach as it existed in a single year – 1855 – without knowing the relevant water levels at Lake Huron in a reliable or accurate manner. Specifically, it is not possible to be precise about the configuration of the beach at that time, as that exercise would require pinpointing the appearance of the beach in a very narrow timeframe, and because there is a lack of available evidence from that era. Before 1918, there is only one gauge or measurement taken regarding water levels and that measurement of water level was taken at the south end of Lake Huron at Harbour Beach – not near the Disputed Beach.

[224] However, his opinion was that the shoreline of the Disputed Beach, aside from accretions of sand that accumulated at the northernmost point of Sauble Beach caused by a man-made jetty, has likely remained in a steady state since Rankin’s traverse and survey, meaning that the beach has more or less remained the same over the course of the long term. That said, Dr. Desloges opined that within the 170 year span, the shoreline has fluctuated from time to time within 50 meters as a result of seasonal factors such as climatic variations (precipitation, temperature, evaporation) affecting the water level of Lake Huron.

[225] A major criticism of Dr. Davies’ analysis by Dr. Desloges was that he did not account for the seasonal factors and their impact on water levels in Lake Huron in any given year. This “significantly undermines the degree of certainty” of Dr. Davies’ opinion. Furthermore, the monthly lake level observations of Lake Huron from 1855 to 1917 that Dr. Davies’ heavily relies upon are based on too limited number of lake level gauges and further undermined by the lack of precision of water measurement given the instruments of the day.

[226] In the end, Dr. Desloges’ opinion is that it is not possible to reconstruct the shoreline along the Disputed Beach during Rankin’s traverse and survey in a reliable way or with any reasonable degree of certainty.

(ii) Analysis of the Geomorphology Evidence

[227] Overall, I found the expert evidence of Dr. Davies relating to the reconstruction of the shoreline and water levels to be of little assistance to the determination of where Rankin placed the northern terminus of the east boundary. As noted by Dr. Desloges, it is difficult to extrapolate from long-term data what the concavity of the Disputed Beach would likely have been during the time of Rankin’s preliminary traverse and survey.

[228] As Dr. Davies testified, his analysis was informed by the long-term trends in the historical data. The data regarding the historical water levels of Lake Huron, critical to a determination of the movement of the shoreline, for the period from 1850 to 1900 was extremely limited and not as reliable as more recent level recordings – even if the Harbour Beach data was the most reliable available to Dr. Davies.

[229] Most notable was Dr. Davies’ testimony that the easternmost point of the Disputed Beach, based on Rankin’s field notes of his survey and his own analysis, was at station 59 or Lot 30, which was not contested.

[230] I accept that the Disputed Beach is far wider today than it was in 1854-55, based on Rankin’s field notes which record his observations and sometimes describe the measurements of the Disputed Beach and immediately south as being narrow. It was not until the 1930’s that questions arose from cottagers about who owned the increasingly large beach owing to accretions. However, I accept Dr. Desloges’ opinion that the early lake level data relied upon by Dr. Davies is too unreliable and, together with the later data, are not very helpful when trying to pinpoint the width of a beach at a particular location along a large lake’s coastline’s concavity in a narrow period of time 170 years ago. The lack of reliable water level data relating to Lake Huron in the latter half of the 19^th century and the failure to take into account the climatic variations and their impact on water levels over the past 170 years casts significant doubt on Dr. Davies’ attempt to have reconstructed the coastline along the Disputed Beach as it would likely have existed in and around 1854-56. I find that his methodology relied on an unsupportable factual basis.

(c) The Expert Witnesses – Survey and Boundaries

[231] The survey and boundary experts agreed that the “about” 9 ½ miles from the “spot upon the coast” as defined by the Treaty fell within the vicinity of Lot 31. Mr. de Rijcke states that the post planted by Rankin within Lot 31 marks that spot and is evidence that he ran the line due south on dry land past the concavity without hitting water. Dr. Ballantyne and Mr. Fediow say that the post was not the exact “spot upon the coast” insofar as it was planted further inland. Their position was that the “spot” was at the natural water boundary of Lake Huron.

(i) Izaak de Rijcke

[232] Mr. de Rijcke testified on behalf of Saugeen. Mr. de Rijcke was qualified as an expert in professional contemporary and historical land surveying in Ontario. He has a designation as an Ontario Land Surveyor, was called to the bar of Ontario in 1983 and became a specialist in real estate law. He has various other qualifications, including having written a textbook in 2016 on the principles of boundary law and has extensive experience in conducting and interpreting surveys.

[233] Mr. de Rijcke’s opinion is that Treaty 72 established (i.e., created) the boundaries of IR 29 because it set out in sufficient detail, from the perspective of a surveyor, the markers for plotting the boundary. Rankin’s task was to implement the Treaty-defined boundaries on the ground.

[234] It is Mr. de Rijcke’s further opinion that Rankin plotted out the west boundary of IR 29 at the Disputed Beach entirely on dry land, and that he did not have to cross into the water at any point to run a straight line south from Lot 31. He contends that this view is supported by a review of Rankin’s field notes recording his survey on the ground, chain by chain, and by the working draft survey map created by Rankin reflecting his preliminary traverse. Furthermore, Rankin established the “spot upon the coast” at “about” nine and a half miles from the original (Treaty-defined) west boundary in about the mid-point of Lot 31, inland from the water’s edge of Lake Huron, and marked that spot with a post as recorded in Gould’s field notes and labelled by Rankin as the northeast angle of IR 29 on his working draft survey map dated October 12, 1855.

[235] Mr. de Rijcke opined that there was a strip of continuous dry land between the lake and the east boundary at the Disputed Beach that was marked as reserve land by Rankin when he established the east and west boundary of IR 29 in his final Plan of Survey of Amabel in 1855, as submitted and ultimately accepted by the Crown in 1856. He concluded that the surveyors hired subsequent to Rankin to re-establish the east boundary either failed or did not attempt to re-establish the east boundary north of Lot 25 across the Disputed Beach as “run on the ground by Rankin”. Furthermore, none of the subsequent boundary investigations, plans, surveys or patents created after 1856 that purport to show, or relate to, the east boundary of IR 29 alter his opinion.

[236] Mr. de Rijcke’s task was to “re-establish” the north segment of the east boundary of IR 29.[^43] Mr. de Rijcke attempted to physically retrace the disputed segment of the west boundary and the north terminus of the east boundary using Rankin’s field notes.

[237] Mr. de Rijcke characterized his methodology as “non-traditional” surveying and acknowledged that the task of re-establishing the boundary was made more difficult because neither of the posts planted by Rankin at Lot 31 or the road allowance between Lots 25 and 26 have survived. Furthermore, the topography Rankin faced in 1855 is not the same as when Mr. de Rijcke carried out his own attempt to re-establish Rankin’s boundary in the 1990s. This is significant because Rankin’s field notes make frequent reference to the topography as he marked the boundary. However, Mr. de Rijcke relied on the many boundaries Rankin surveyed and monumented in the surrounding township lots in Amabel for guidance.

[238] Mr. de Rijcke used much of the same equipment as would have been used by Rankin and Gould. He painstakingly attempted to physically retrace Rankin’s steps between Lots 31 and 25 as reflected in Rankin’s detailed field notes.

[239] Mr. de Rijcke explained that, according to his field notes, Rankin’s first step was to run a preliminary shore traverse of Lake Huron, because the Saugeen Peninsula had never been accurately surveyed or measured by anyone. Mr. de Rijcke explained that Rankin would have used a heavy chain to plot and measure the course. One inch on Rankin’s survey reflects a scale of 10 inches, and one chain is 66 feet long. Eighty chains represent a distance of one mile. Of course, the imperial measurement was used in this time frame.

[240] Mr. de Rijcke’s opinion is that Rankin plotted out the “spot upon the coast” at “about” 9 ½ miles from the original Treaty-defined west boundary. Rankin used a surveyor’s compass and used the magnetic north as the reference line. While this methodology presents some challenges with accuracy it was acceptable in the historical timeframe.

[241] In Mr. de Rijcke’s opinion, Rankin’s marking of the “spot” was fairly accurate.

[242] The east boundary of IR 29 was then surveyed commencing on September 4, 1855 by Rankin and his crew. Rankin recorded entries in his field book of his observations of the topography, consistent with the practice of the day.[^44] In Mr. de Rijcke’s opinion, Rankin’s field notes are the best evidence of what Rankin did in the course of physically plotting this boundary (as opposed to his Final Plan of Survey).

[243] Recall that Rankin was surveying not only IR 29 and Chief’s Point reserves, but also the lots to be sold throughout the surrendered portion of the peninsula. Further recall that Rankin was present at the Treaty Council and witnessed the signing of Treaty 72 so he was presumably very familiar with the terms of the Treaty and the negotiations that led to those terms.

[244] At p. 143 of his Field Book No. 214, Rankin wrote “Indian Boundary West Side of Concession D”. This is referring to the west boundary of IR 29 where it intersects with the spot upon the coast and includes the segment along the Disputed Beach. The key entry relevant to the Disputed Beach (focused on by all of the survey experts) is that the total distance of this segment was 101 chains,[^45] with the following taken from the field book verbatim:

On sandy beach, at 14 c to 115 c Lake, edge of, at 128 c ascend the little sandy bank from the beach, then low sand hills…

[245] All of these experts agree that the reference to “c” is chains. However, there was much controversy at trial as to what Rankin’s reference to “Lake, edge of” and then “ascend the little sandy bank from the beach” meant. More specifically, where was Rankin’s chain during this segment of the traverse?

[246] Mr. de Rijcke’s interpretation of this field book entry is that Rankin approached the edge of Lake Huron, walked on beach or dry land along the lake edge meaning sandy beach, then left the sandy beach to go to the “little sandy bank” which Mr. de Rijcke interprets as sand dunes. He notes that 14 chains is the equivalent of 924 feet, 115 chains is 7590 feet or 1.14 miles, 128 chains is 1.6 miles and 160 chains is two miles.

[247] In other words, Mr. de Rijcke’s opinion is that Rankin did not actually enter the water of Lake Huron between Lots 31 and 26 from chain 14 to chain 115 and did not need to in order to plot the west boundary and its intersection with the east boundary at the northern terminus of this reserve. The survey by Rankin was conducted entirely on dry land in a straight line around the concavity of Lake Huron at the Disputed Beach. Mr. de Rijcke testified that his traverse of this same boundary segment along the Disputed Beach re-established the north terminus of the east boundary at Lot 31 where Rankin planted his post.

[248] In support of his opinion, Mr. de Rijcke points to the fact that there is no explicit mention by Rankin at this entry or in Gould’s field notes of having ever entered into or crossed the water or having run an offset line (from a boundary running through the water to the dry land). According to Mr. de Rijcke, a qualified surveyor of the day would have been expected to record such a detail explicitly in his field notes. Mr. de Rijcke also observed that in Rankin’s field notes elsewhere, Rankin makes it clear when he went into water; therefore, Rankin would have written something like “entered water at 14 c and left water at 115 c” if that was the case.

[249] At p. 143 of his Field Book 214, Rankin documented his measurements and describes the vegetation, soil type and terrain he walked over. Mr. de Rijcke explained that Rankin was recording these observations because he was evaluating the suitability of the soil for farming and settlers’ lives, and these were important details in the course of surveying the inland lots of Concession C to the east of Concession D at Amabel.

[250] Gould recorded the existence of the post planted by Rankin as the northeast angle of IR 29 located within Lot 31. The post was planted 1.72 chains from Lake Huron and 10.66 chains north of the Lot 30/31 road allowance.

[251] Mr. de Rijcke testified that it is evident from Rankin’s September 4, 1855 journal entry that he only spent the first day with the survey party and ran the first two miles of the east boundary south from what he determined was the northeast angle of IR 29 or the “spot upon the coast”. Once they left the beach Rankin left the survey in his assistant Gould’s hands. It bears repeating that Gould was not a licensed surveyor, but that Rankin had been authorized to employ assistants to help with the survey. This suggested to Mr. de Rijcke that Rankin anticipated the first leg of this survey of the east boundary would be difficult due to his preliminary traverse of the shore.

[252] Mr. de Rijcke then considered the working draft survey plan prepared by Rankin, dated “Sydenham October 12, 1855” (found in Rankin’s working papers but not submitted as part of his Survey Return) which he stated supported his opinion. Mr. de Rijcke highlights the fact that Rankin wrote on to this working copy “NE>Ind. Res.” Also visible on this draft map is a faint line that appears to start at the station at the water’s edge of Lot 31 and continues through Lake Huron (albeit very close to the shoreline) ending at Lot 25/26 where Rankin records ascending the “little sandy bank from the beach”. The road allowance at Lot 25/26 is the official northern terminus of the east boundary of IR 29 as designated by Indian Affairs.

[253] Mr. de Rijcke characterized Rankin’s failure to visibly draw the boundary as extending north from Lot 25 to 31 as a “drafting anomaly”. He speculated under cross-examination that Rankin’s failure to draw a small north boundary to connect the spot upon the coast with the west boundary was perhaps due to an inability to draw a line with a thin enough pencil to illustrate a narrow boundary. However, this answer makes no sense in light of the fact that other boundaries, such as the side road allowances on the final Plan of Survey of Amabel were clearly marked even though they reflected a width of distance smaller than Mr. de Rijcke’s estimate of the width of the shoreline comprising the east boundary at the lake side of Lots 26 – 31. Mr. de Rijcke’s explanation was that these sideroad allowances were exaggerated on the Survey by Rankin.

[254] Mr. de Rijcke also speculated that the reason Rankin did not draw the reserve boundary along the Disputed Beach or mark where the various side road allowances along the Disputed Beach ended to the east of the reserve boundary was that it was perhaps “too obvious” to mark. However, that explanation, as noted by Dr. Ballantyne, also makes no sense since the purpose of a final Plan of Survey is to clearly mark all boundaries as surveyed including posts to visibly demarcate those locations so that others will be able to plan accordingly.

[255] Under cross-examination, Mr. de Rijcke testified that his estimate of the length of the north boundary Rankin made to attach the post at Lot 31 to the water’s edge was 100 to 150 feet in 1885, and approximately 400 – 600 feet of beach today due to accretion, but agreed that there is no line marking such a boundary on Rankin’s final plan of survey. Mr. de Rijcke explained that the line was not necessary because Rankin was “clear” that he was running the line from the spot upon the coast. Mr. de Rijcke also testified that the patent to Lot 28, with its express reservation of free access to the waterfront, was a mistake that he has seen often though he ultimately agreed that if this was not a mistake, the reservation was inconsistent with a reserve running along the beach to the west of this lot.

[256] In conclusion, Mr. de Rijcke’s opinion is that Rankin’s role was to mark on the ground the east boundary of IR 29 as defined by Treaty 72. Furthermore, Rankin did so in 1855 from a spot upon the coast about 9 ½ miles from the original treaty-defined west boundary at Lot 31 and marked this boundary on dry land along the Disputed Beach. He acknowledged that the boundary along the Disputed Beach is not shown on Rankin’s final Plan of Survey of Amabel in any way but believes that was a drafting anomaly on Rankin’s part.

(ii) Stephen Fediow

[257] Stephen Fediow testified for the Town. He was qualified as an expert in historical surveying, boundary principles focusing on riparian boundaries, and boundary disputes concerning First Nation reserves. His task was to provide an opinion as to where the north terminus of the east boundary was located based on Rankin’s final survey.

[258] Mr. Fediow’s opinion is that the northern limit of the east boundary of IR 29 is at the monument established by DLS and OLS Nathaniel Low located on the south side of the road allowance between Lots 25 and 26. He observed that this terminus point is shown on Rankin’s draft Plan dated October 12, 1855, his final Plan in 1856, and the July 31, 1856 auction map published under the authority of the Indian Department of Canada by Dennis & Boulton, Surveyors and Land Agents. This map was used to advertise and facilitate the public sale of the lots (including the Disputed Lots) surveyed by Rankin.

[259] Mr. Fediow testified that Rankin commenced his survey of the east boundary on September 4, 1855 from “a spot on the sandy beach” starting at the post he planted in Lot 31 – not the “spot upon the coast” referred to in the Treaty which would have been in the same approximate position but on the water’s edge of Lake Huron. The Lot 31 post was therefore not a “monument” representing the commencement of the reserve’s boundary, but rather a “witness monument” meaning that it represented where Rankin started his preliminary traverse. Rankin’s survey commenced at the spot upon the coast which was, in Fediow’s view, at the water’s edge of Lake Huron. Due to the concavity of Lake Huron at the Disputed Beach, Rankin had to run his line “across the waters of Lake Huron to the west of the disputed portion of Sauble Beach, before re-emerging onto dry land in the vicinity of the road allowance between Lots 25 & 26”.[^46] In his opinion, Rankin likely used an offset line from the lake so he did not have to physically walk through the shallow water for the approximately 1.4 miles. This despite the lack of a reference to an offset line in Rankin’s field notes or his Report.

[260] Mr. Fediow relied primarily on Rankin’s final Survey which does not show any indication of a reserve boundary north of Lot 25, and referenced as secondary evidence Rankin’s field notes, draft plan, maps of the day, and subsequent patents and surveys or investigations conducted by surveyors in response to Saugeen’s claim that IR 29 was intended to extend past Lot 25 to within Lot 31.

[261] In many respects Mr. Fediow’s opinion is consistent with Dr. Ballantyne’s opinion. However, he did not consider the latent ambiguity theory that Dr. Ballantyne focused his analysis on.

[262] Mr. Fediow described the “hierarchy of boundary evidence” as providing an analytical approach surveyors use when determining how best to run a boundary on the ground, recognizing that descriptions in deeds often do not reflect the reality on the ground. The elements of this hierarchy are:

(a) Evidence of natural boundaries;

(b) Evidence of original monuments;

(c) Evidence of possession which can reasonably be related back to the time of the original survey; and

(d) Measurements quoted by the original surveyor on a plan or in field notes.

Mr. Fediow acknowledged that one does not apply the above order of the prescribed importance of evidence rigidly as there must be flexibility to allow the surveyor to deal with whatever they are facing on the ground.

[263] In Mr. Fediow’s view, Rankin dealt with the obstacle posed by the inward curve of Lake Huron at the Disputed Beach through the hierarchy of evidence framework.

[264] Of the four factors, Mr. Fediow agreed that none of the original monuments placed by Rankin remain in existence. Furthermore, evidence of possession was not relevant in the circumstances of this case. What remained from the hierarchy of evidence was therefore the evidence of natural boundaries[^47] and the measurements quoted by Rankin in his field notes.[^48]

[265] Accordingly, Mr. Fediow focused on the “spot upon the coast” of Lake Huron, which he described as a “shifting” natural boundary. Mr. Fediow reviewed the measurements relative to the topography identified by Rankin in his field notes regarding the segment of the Survey from Lots 31 to 25/26 (above referenced and quoted at para. 244), and the expert evidence of Dr. Davies who testified that it is likely that the beachfront bordering the concavity of Lake Huron at the location of the Disputed Beach has changed since 1885 such that there have been substantial accretions of sand widening the beach. Based on these two factors, Mr. Fediow concluded the value of the “spot upon the coast” stipulated by the Treaty to his task was limited. He was the only survey expert to take this position.

[266] While Mr. Fediow agreed that the “spot upon the coast” was likely in the vicinity of Lot 31 (though not as far inland as Rankin planted the post), his view was that Rankin’s task was to start the northern terminus as close to the spot upon the coast as was physically possible. Due to the concavity of the Lake Huron’s coastline, the “spot” ended up being at the side road allowance between Lots 25 and 26, where the coastline bends westward from the most eastern point of the concavity. In Mr. Fediow’s view, Rankin faithfully followed the terms of the Treaty by placing the northeast angle at “about” 9 ½ miles even though that boundary was only 8.1 miles under the terms of the Treaty. The word “about” vested Rankin, from a surveying perspective, with the discretion to place the boundary where he did. In his opinion, what Rankin did best fit the description of this reserve boundary from the Treaty.

[267] Mr. Fediow did not characterize Rankin’s decision as having to resolve a latent ambiguity but rather as being consistent with the hierarchy of boundary evidence.

[268] Under cross-examination, Mr. Fediow’s opinion was weakened by the fact that the easternmost part of the concavity of Lake Huron’s coastline was north of Lot 26. Therefore, as he agreed, a straight line due south could have physically been run entirely on dry land from a point further north on the Disputed Beach than the side road of Lot 25/26. He further agreed that this placement of the northern terminus of the east boundary would have extended the west boundary beyond the 8.1 mile mark and across part of the Disputed Beach. This placement would also have achieved the intersection of the east boundary with the west boundary at Lake Huron.

[269] Under cross-examination, Mr. Fediow stated that it was likely the Treaty parties believed the “about” 9 ½ mile mark would have been coincident with being able to draw a line on dry land from Lot 31 due south, but it did not work out that way on the ground.

[270] Mr. Fediow also agreed that if Rankin had drawn the boundary from the eastern most point in the concavity, as indicated in Dr. Davies’ geomorphology report, Saugeen would likely have received about 9 miles of coastline. The easternmost point of the concavity based on Rankin’s field notes is around station 59 according to Dr. Davies, and Mr. Fediow marked that station at around the road allowance between Lot 30 and 29.

[271] Mr. Fediow also admitted that Rankin had other options in the exercise of his discretion in determining how to mark this boundary on the ground in a manner consistent with the Treaty, but he chose to run his line south (under water) from Lot 31 to where it reemerged from the water at around the road allowance at Lots 25 and 26 and terminate the east and west boundary there. Mr. Fediow testified that if confronted today with this difficulty, he would have sought further instructions. However, in Rankin’s day, time was of the essence to get the survey done, and there was no way to communicate quickly. Had Rankin sought instructions, Mr. Fediow speculated that Rankin would have lost the whole survey season since it was already fall and he had to stop the survey over the winter.

[272] Mr. Fediow further agreed there was no monument post placed at Lots 25/26 to mark the reserve boundary by Rankin. He acknowledged the plans of subdivision do not show the Lots going to the water but rather ending at Huron Lane (now Lakeshore Boulevard North). He ventured that this may be because there was no beach of any note at that time. The latter answer was purely speculative, as the plans of subdivision appear to show land between Huron Lane and Lake Huron.

[273] In re-examination, Mr. Fediow agreed that the Twining deed for part of Lot 26 (April 1947) states that this Lot extends to the westerly limit of Huron Lane at a distance of 60 feet and 2 inches meaning about one acre of the beach. This additional beachfront is not shown on the Davidson plan of subdivision, suggesting to Mr. Fediow that it did not exist at that time and is therefore the product of subsequent accretions.

[274] Mr. Fediow wrote in his report that “we cannot rely upon the location and profile of the Lake Huron shoreline today as evidence of where PLS Rankin surveyed the Reserve’s east boundary in September 1855”, and instead he focused on determining the likely location and profile based on the “monumented evidence, PLS Rankin’s field notes, and the various maps and plans of the Township of Amabel”. In so doing, Mr. Fediow discounts the utility of the description contained in the Treaty of “about (9 ½ ) nine and a half miles” from the spot upon the coast as an important measurement indicator under the hierarchy of survey evidence.

[275] Mr. Fediow strongly disagreed with Mr. de Rijcke’s methodology in attempting to re-trace Rankin’s steps regarding the survey of the east boundary from Lot 31 to Lot 25.

(iii) Brian Ballantyne

[276] Dr. Ballantyne testified on behalf of Ontario. He was qualified as an expert in the area of historical surveying, boundary principles with a focus on riparian rights, boundaries and reserve boundaries. Dr. Ballantyne is not licensed to survey in Ontario but has an undergraduate and graduate degree in surveying. He has many publications, including two textbooks, in the fields of survey and boundaries and has been qualified as an expert witness in several cases in the areas of surveying and boundary disputes.

[277] His opinion is that the east boundary of IR 29 ends at the intersection of Lake Huron with Lot 25, Concession D, at a distance of 2.84 chains south of the road allowance between Lot 25 and 26 and that this point is the northeast angle of the reserve as surveyed by Rankin and reflected in the final Plan of Survey.

[278] Dr. Ballantyne based his opinion on the archival record and some site visits to Sauble Beach.

[279] Dr. Ballantyne testified that there are many points of agreement between his opinion and that of Mr. de Rijcke.

[280] Dr. Ballantyne agreed that Rankin’s primary role was to take the boundary as described in the Treaty and run the lines on the ground as the parties would have intended. He agreed, based on the Treaty and Rankin’s instructions, Rankin’s role was not to create boundaries but to reflect the intentions of the Treaty parties. However, Dr. Ballantyne testified that the Treaty text vested discretion in Rankin as to where to mark the boundaries on the ground.

[281] Dr. Ballantyne conducted a paper review of Rankin’s survey of the northern terminus of the east boundary, including subsequent plans and Rankin’s field notes. His overall conclusion is that, based on Rankin’s final Plan of Survey of Amabel, as supported by his field notes, Rankin did not mark a boundary north of Lot 25 as forming part of the east boundary. First, the final Survey does not show a boundary at Lots 26 to 31 demarcated in any way, much less as part of an “Indian” reserve boundary. Second, the key field note at p. 143 of Field Book 214, when interpreted in light of how Rankin used those terms in other entries in that Field Book, is best interpreted (from a surveyor’s perspective) to mean the following:

a. From the “spot upon the coast” in Lot 31, Rankin walked from 0 chains to 14 chains (a distance of 282 metres) across a (sandy) beach;

b. From 14 chains to 115 chains (a distance of 2,032 metres), the chain left the dry beach and was on the “lake, edge of” meaning either in the shallow water or along the wet sand caused by wave action;

c. Rankin re-entered and crossed the “beach” to 128 chains (a distance of 262 meters); and

d. At chain 128 Rankin left the beach and entered on to a “little sandy bank” (at a distance of 2.5 km south of the post at Lot 31).

[282] Dr. Ballantyne notes that, elsewhere in Rankin’s field notes, he specifically wrote “in” the water when he entered the water. The absence of that word suggests that Rankin did not likely enter into the water from chains 14 to 115 when he wrote “Lake, edge of”.

[283] Furthermore, Dr. Ballantyne found that Rankin was inconsistent in his use of the term “shore” in his field notes, though he concluded that Rankin generally used “shore” to describe stony terrain and “beach” as sandy terrain. Rankin was also inconsistent in his use of the term “edge” and “Lake edge of” in the field notes. Those terms could mean “an area away from the lake rather than refer to the lake itself”.

[284] It is Dr. Ballantyne’s opinion that Rankin did not mark any reserve boundary along the Disputed Beach between Lots 26 and 31 and this was intentional. The reason Rankin did not include this section of the coastline (notwithstanding that Lot 31 roughly approximated the “spot upon the coast”, though closer to the water’s edge) was because Rankin ran into an obstacle on the ground as he attempted to implement the boundary under the terms of the Treaty: namely, due to the unexpected size of the concavity or inward curve of Lake Huron’s coastline at Lot 31 south to Lot 26 where the coastline turns eastward and then returns westward, it was physically impossible to run a straight line south on dry land from the Treaty-defined north terminus of the east boundary to intersect with the north terminus of the west boundary at the lake’s edge itself. This physical impossibility could not be predicted by the Treaty parties and was therefore a “latent ambiguity”. Dr. Ballantyne testified that it was within Rankin’s professional discretion as a surveyor to resolve this latent ambiguity.

[285] In Dr. Ballantyne’s opinion, Rankin resolved it properly by commencing the boundary at the road allowance between Lots 25 and 26, which is where Rankin crossed the sandy beach from the lake’s edge and could be run on dry land south to roughly parallel the Lake Huron/riparian segment of the west boundary to the Half Mile Strip where the south terminus of the east boundary is. Dr. Ballantyne’s opinion is that Rankin likely ran his line along the Disputed Beach on wet sand caused by wave action and by Rankin’s lack of an entry indicating he was “in” the water.

[286] Dr. Ballantyne observed that pursuant to Bury’s survey instructions of April 26, 1855, Rankin’s role was to mark the reserve boundaries on the ground as defined by the Treaty and record those lines on his survey. Indeed, this is how Rankin understood his instructions as evidenced by his report when he submitted his final Plan of Survey and records to the Crown Lands Department in which he stated, “I used my best judgment in carrying out this survey with a view to the spirit of the orders and in a way most to the public advantage and to the advantage of the Indians”.

[287] Dr. Ballantyne testified, however, that Rankin was vested with some discretion in marking the boundaries. First the survey instructions themselves invited discretion in marking the boundaries of the various reserves such as proposing how the settlements at Saugeen River should best be subdivided. In addition, Dr. Ballantyne’s opinion was that Rankin’s discretion was “rooted” in the urgency underlying this task as captured by Instruction 25 from Bury: “You will endeavour to conduct this survey with a judicious economy, combining accuracy with dispatch”.

[288] Dr. Ballantyne’s opinion was that when Rankin was faced with the inward curve of Lake Huron’s coastline that prevented him from running the line entirely on dry land, Rankin had two options in exercising his discretion in marking the boundary in accordance with the terms of the Treaty:

(a) He could set boundaries to result in a five-sided parcel with two north-east corners and a short east west boundary between the two corners:

• The first corner would be at the water’s edge (wet sand, or the low water mark, according to Dr. Ballantyne) about 9.5 miles from the original west boundary to mark the end of that shoreline boundary along Lake Huron but not mark the start of the east boundary;

• The second corner would be inland from the water’s edge and east of Corner 1 to mark the start of the east boundary, but not mark the end of the west (shoreline) boundary.

This would effectively result in the drawing of a short new north boundary to join the two corners together and would have continued the natural riparian border of the west boundary to the spot upon the coast, which in turn would have been posted inland from the edge of Lake Huron.

(b) The second option was to maintain a four-sided parcel with only one north east corner, whose east boundary intersected with Lake Huron in Lot 25, approximately 115 chains or about 1.4 miles south of the spot upon the coast (again, about 9 ½ miles from the original west boundary as prescribed by the Treaty).

[289] Rankin chose the second option, resulting in his marking the boundary south of the “spot”.

[290] It is thus Dr. Ballantyne’s opinion that Rankin was within his right in exercising his professional judgment to resolve the apparent latent ambiguity that arose from the Treaty text and the acknowledged imprecise Oliphant sketch sent with the Treaty and, when doing so, he was following general surveying principles of the day. This decision resulted in a deprivation to Saugeen of approximately 1.4 miles of the west boundary coastline as a natural water boundary which otherwise would have terminated at Lot 31. By setting the boundary where Rankin did, Dr. Ballantyne testified that the Survey becomes determinative of its location since the final Survey, and not the field notes, is the primary reference source.

[291] In his report, Dr. Ballantyne explains:

In choosing Option two and in reconciling the Reserve description/sketch with the concave shoreline, Rankin recognized the latent ambiguity in the description. A “latent ambiguity…appears when the words [in the description] are applied to the ground.” The ambiguity in the description – as between a physical feature such as Lake Huron and a distance of 9.5 miles – remains hidden until a surveyor starts to set out on the ground the boundaries described. At that time “evidence and facts are encountered which make the reconstruction of the description on the ground impossible without reconciling the conflicting elements of evidence.” Such as it was with Rankin as he established the East boundary through survey in 1854-56, so it is with a surveyor as he/she re-establishes the East boundary through survey in 2021. The relevant boundary principle is to “consider the best evidence available and re-establish the boundary on the ground in the location where it was first established and not where it was necessarily described”.[^49]

[292] In Dr. Ballantyne’s opinion, Treaty 72 assumed that the reserve parcel was a “pseudo trapezoid, with a more-or-less straight shoreline running from the West boundary in a north-easterly direction to the East Boundary”. He opined that Rankin resolved the ambiguity using the established boundary principle of favouring natural features (or physical features) over stated distances, relying on the “hierarchy of boundary evidence”.[^50]

[293] In his view, the Treaty required that the north terminus of the east boundary intersect with Lake Huron’s west boundary at the water’s edge, and therefore drawing a short north boundary to tie the inland northeast corner to the lakeside northwest corner was a better option as the Treaty makes no explicit reference to a north boundary.

[294] Dr. Ballantyne’s explanation for why Rankin, assuming he encountered a latent ambiguity, did not follow the usual surveying practice of returning to his instructing party for further instructions on how to resolve the ambiguity was the urgency underlying the need to complete the Survey. This explanation makes sense in the historical context of the Crown’s urgent desire to put the surrendered land up for sale at public auction and given that the public auction date, after being postponed twice, was September 1856.

[295] Such a request, if made, would have been documented in the archival record, together with the response as it was when the Copway Road proposed amendment to the west boundary was raised. In such a scenario, it is reasonable to assume that the Crown would likely have consulted with its Treaty partners for input as to how to resolve the ambiguity in terms of the reserve boundaries. Instead, according to Dr. Ballantyne, Rankin simply resolved the latent ambiguity on the ground without expressly referencing this in his field notes or in any documentation, likely because of the urgent time constraints imposed on him to complete the Plan of Survey to facilitate the public auction of the lots to be sold. This does not explain, however, why there is no mention of this latent ambiguity in the field notes or his report to Pennefather. The only plausible explanation is that this was an exercise of professional discretion used to carry out the instruction, as was implicit in the terms of the Treaty and Bury’s instructions, and so no report or note of it was needed.

[296] As Dr. Ballantyne acknowledged, the fact that Rankin’s returns were ultimately approved by the Department of Crown Lands without any comment concerning the location of the north terminus of the east boundary (after Rankin was required to fix or explain what Crown Land Commissioner Joseph Cauchon called a “very unusual number of errors” in his field notes) is tempered by the fact that the Crown Land examiners would not likely have been familiar with the terms of Treaty 72, which was under the jurisdiction of Indian Affairs. This may be a case of the Crown’s left hand not knowing what the right hand was doing.

[297] Dr. Ballantyne also points out that, had Rankin intended to mark the spot upon the coast at Lot 31 as a boundary terminus, he would have noted that spot with a monument drawn on his final Plan of Survey. The fact that the strip of land along the coast between Lots 31 and 25 would have been narrow so as to prevent drawing the line on the map, as opined by Mr. de Rijcke, is no excuse, in Dr. Ballantyne’s opinion, for a surveyor failing to show that boundary on the final Plan of Survey. It could and would have been done by Rankin if that was the boundary he surveyed. There were techniques at Rankin’s disposal to draw narrow or short boundaries.

[298] As well, Dr. Ballantyne notes that not all posts planted by surveyors are boundary posts. The post at Lot 31, while demarcating the approximate location of the spot upon the coast, was just meant to be the starting point of his survey, not the final location of a boundary terminus, as evidenced by the fact it was not shown on the final Plan of Survey of Amabel signed and submitted by Rankin in 1856 together with his returns (including his field notes and maps). A copy of Rankin’s return was filed with his report to Superintendent Pennefather on May 22, 1856 and, after correction of some of the errors noted by the Crown Land examiners, was forwarded by Pennefather to Commissioner Cauchon, of the Crown Lands Department, on November 20, 1856. They were ultimately deposited in Crown Lands Survey Records in December 1856 reflecting acceptance of Rankin’s Survey of the reserve by the Imperial Crown.[^51]

[299] Furthermore, the fact that no mention of Lot 31 is made in Rankin’s field notes recorded on September 4, 1885 of the post he planted in that location during his preliminary traverse, suggested to Dr. Ballantyne that the post was not intended to demarcate or monument the marking of the north terminus of the boundary. Such monument posts are always reflected in a surveyor’s field notes.

[300] Dr. Ballantyne’s main criticism of Mr. de Rijcke’s approach was his reliance on Rankin’s draft map prepared during his preliminary traverse on which he depicted the post at Lot 31. In Dr. Ballantyne’s view, little reliance can be placed on a draft map because it was an “early, incomplete, error-ridden draft” not signed by Rankin and replaced by the official signed final Plan of Survey. It was the custom of the day, and remains the custom today, to treat the final signed Plan of Survey as the authoritative document.

[301] Dr. Ballantyne also rejected Mr. de Rijcke’s explanation that the lack of a line demarcating a boundary across the Disputed Beach was merely a drafting anomaly. It is not a plausible explanation given the fact that the other plans drafted by Rankin between 1855 and 1856 contained the same drafting anomaly, the Crown land examiners overlooked this drafting anomaly, and both the Superintendent General of Indian Affairs and the Commissioner of Crown lands overlooked the drafting anomaly.

[302] Another of Dr. Ballantyne’s main criticisms of Mr. de Rijcke’s approach was that, in his opinion, de Rijcke assumed that the north terminus of the east boundary was at Lot 31, as reflected by his terms of reference and the title of his report. Dr. Ballantyne stated that if there was no boundary surveyed to Lot 31 in the first place, as is his opinion, then there can be no re-establishment of the boundary between Lot 31 and Lot 25 pursuant to the surveying standards in place at the time of Mr. de Rijcke’s physical re-establishment efforts. In other words, by resorting to the field notes first, and the final approved Plan of Survey of Amabel (which included the reserve) second, Mr. de Rijcke has not actually “re-established” the boundary since the proper procedure is to start with the final Plan of Survey, and then resort to field notes as a secondary source only.

[303] Also, by using the historical surveying equipment, Mr. de Rijcke ran the risk of compounding any inaccuracies already manifested by Rankin’s use of that equipment.

[304] Finally, Mr. de Rijcke’s method of trying to physically replicate Rankin’s movements from his field notes on what, given the passage of time, would have been different topography is not a generally accepted surveying practice.

[305] In summary, Dr. Ballantyne’s conclusion is that the post set within Lot 31 was not the exact spot upon the coast since it was set inland about 1.5 – 2 chains (or 30 to 40 metres) from the west boundary. Rather the “spot upon the coast” was located on wet sand, as opposed to sandy beach, within Lot 31.

[306] Faced with a latent ambiguity, Rankin exercised his discretion to resolve it by choosing the option of marking the north terminus of the east boundary south from the “spot” to a point where the boundary line could run entirely on dry land south to the Half Mile Surrender strip. In Dr. Ballantyne’s view, this decision was consistent with the terms of the Treaty and reflected the established surveyor principle of Rankin’s era that: “Neither the words of a deed, nor the lines and figures of a plan, can absolutely speak for themselves. They must, in some way or other, be applied to the ground”.[^52] Dr. Ballantyne emphasized that the option chosen by Rankin averted the need to add a fifth boundary at the north end joining the spot to the coast of Lake Huron which, in his view, Treaty 72 does not permit.

[307] On cross-examination, it was suggested to Dr. Ballantyne that the south boundary and the west boundary as drawn by Rankin on the final Survey do not actually intersect either because the north coast of the Saugeen River intervenes and operates as part of the south boundary. This aspect of the boundary is not specifically described in the Treaty text. Dr. Ballantyne was not prepared to accept this proposition because he could not verify if this was the case on the ground and he had not investigated this particular boundary intersection. He conceded that Rankin’s final Plan of Survey of Amabel shows this Saugeen River segment of the south boundary. He also agreed that today, with the accretions of land under his description of the boundaries, a north boundary would have to be effectively added to ensure the north terminus of the east boundary intersected with Lake Huron, assuming the accretion belonged to Saugeen.

[308] Also, in cross-examination, Dr. Ballantyne acknowledged that his opinion was not without doubt since Rankin was inconsistent in his use of “shore” and “edge” such that “Lake edge” might sometimes refer to an area away from the lake meaning inland from wet sand caused by wave action. Furthermore, the journal and diary entries for September 4, 1855 show that Rankin had surveyed two miles of the “boundary of Saugeen Indian Reserve” and Gould had traversed south from the Sauble River to the “Ind boundary & cont. the Boundary”. As well, Rankin’s field notes relating to the running of his line south from the post planted at Lot 31 (at a distance of 1.72 chains from the lake) are entitled “Indian Boundary”. Finally, according to the field notes, as noted earlier, a post was also planted at the road allowance between Lots 25 and 26 (at a distance of 1.56 chains from the lake).

[309] Dr. Ballantyne also agreed that if the east boundary was to be extended north to Lot 31 today, given the substantial accretion of sand that has occurred since the treaty formation to form a wider beach, the boundary would terminate within Lot 31 at the west edge of what is now known as Lakeshore Boulevard North, approximately 170 metres from the shoreline (compared to the distance of 30 – 40 metres established by Rankin when he planted this post referencing the north east angle of the reserve).

(iv) Conclusion of Expert Survey and Boundary Evidence

[310] I can accept all, none or some of the evidence of these experts.

[311] All of these survey experts agree that PLS Rankin was diligent, reliable and careful in his survey work, and had a good and respected reputation.

[312] All of the survey experts also generally agree that PLS Rankin identified the “spot upon the coast” referenced in Treaty 72 as being a location within Lot 31. This location coincided with station 60 (in Rankin’s field notes) of Rankin’s shoreline traverse. Where they disagree is whether Rankin marked the northern terminus of the east boundary at that location and neglected to show that segment of the boundary along the Disputed Beach on his final Plan of Survey.

[313] One foundational element of disagreement between Mr. de Rijcke and the defence surveying experts was which of Rankin’s documents constitute the primary evidence in attempting to re-establish the east boundary according to Treaty 72. Mr. de Rijcke testified that Rankin’s field notes were the primary evidence, and that his maps and final Plan of Survey were secondary. Dr. Ballantyne and Mr. Fediow took the opposite view. In my view, given the nature of this controversy, Rankin’s field notes were essential to the determination of what he did on the ground, and particularly the significance of planting a post within Lot 31. However, his field notes do not override his final Plan of Survey and its depiction of the official reserve boundaries.

[314] Furthermore, one of the determinations I must make is not only what was the east boundary as surveyed by Rankin, but also what was the east boundary as created by the Treaty. The answers are not necessarily the same and the treaty interpretation exercise is not constrained by the surveying principles testified about (though they are an important contextual consideration to help understand Rankin’s course of action and his rationale).

[315] Another area of disagreement was whether the Treaty “guaranteed” a result – namely, of a reserve that included about 9 ½ miles of coastline measured from the original west boundary or simply set out a process with the size and location of the reserve to be determined by Rankin as surveyor. In my view, the answer lies in the instructions to survey received by Rankin which, in both the case of Oliphant and then his successor Bury, were general but did not set out a process for reserve creation. Most relevant were Bury’s instructions delivered in April 1855 which, in material part, read:

It will be necessary to draw the outlines of the several reservations made under the Treaty…and with that view I enclose for your guidance a copy of the treaty made with the Indians for the surrender of the tract.

While the Treaty did not “guarantee” a result, the Treaty did set out the parameters to be followed by Rankin as best as he could.

[316] As noted by Dr. Ballantyne, the instructions were mostly focused on surveying the surrounding Township of Amabel, which was to be reflected on a survey of both the reserve and the surrounding townships (Amabel, Southampton site north of the Saugeen River, Keppel Township to the east and Oliphant Township to the north, including the towns of Wiarton and Oliphant, as well as Owen Sound). Rankin specifically notes that his instructions were to run “the Eastern boundary of the Saugeen Indian Reserve – in accordance with the treaty”, as reflected in his Journal, September 1, 1855. When he delivered his report to Superintendent Pennefather, Rankin again referenced the Treaty.

[317] Overall, I accept both Dr. Ballantyne’s and Mr. Fediow’s critique of Mr. de Rijcke’s attempt to “re-establish” the boundary. Mr. de Rijcke appears to have made the assumption that Rankin had in fact marked the official north terminus of the east boundary at Lot 31. In order to “re-establish” a boundary, the original surveyor must have established the boundary at that location in the first place. The fact that Mr. de Rijcke made this assumption suggests he had already determined the location of the north terminus of the reserve to be at Lot 31 before he commenced his investigation.

[318] More significantly, Mr. de Rijcke’s survey methodology was admitted by him to be “non-traditional surveying”. It was not done according to current standards, nor is it recognized as a valid or reliable method for re-establishing a boundary. There are too many uncertainties that undermine the likelihood of any accuracy, including using historical compasses and equipment that were less accurate than contemporary equipment, thereby potentially compounding any inaccuracies generated by the equipment used by Rankin. Further, the lack of original monuments at Lot 31 or the road allowance at Lots 25 and 26 from which to gauge the measurements recorded in Rankin’s field notes, and the inability to accurately measure the likely width of the Disputed Beach at the time of Rankin’s survey in September 1855, present further complications. I am not persuaded that Mr. de Rijcke’s attempt to re-establish the boundary and his methodology are reliable.

[319] The fact that I have rejected Mr. de Rijcke’s attempt to re-establish the north terminus of the east boundary does not mean I reject all of Mr. de Rijcke’s evidence. Indeed, there is agreement as between Mr. de Rijcke and Dr. Ballantyne, in particular, regarding certain aspects of the evidence. However, of most import, all three experts agreed that Rankin located the “spot upon the coast” on his traverse to be within Lot 31. Mr. de Rijcke opined that the post marked the actual “spot” whereas Dr. Ballantyne and Mr. Fediow concluded that the “spot” was at the water’s edge within Lot 31.

[320] All three experts had difficulties accounting for Rankin’s rationale in marking the north terminus of the east boundary and how and where he did so. However, overall, I find Dr. Ballantyne’s explanations to be more plausible than Mr. de Rijcke’s and Mr. Fediow’s. Specifically, I did not find convincing Mr. de Rijcke’s evidence on the following points: his explanation for Rankin’s failure to mark the boundary between Lots 25 and 31 on the final Plan of Survey as resulting from an inability to draw the boundary to scale on the survey; his explanation that the pencil line drawn from Lot 31 to the Lot 25/26 road allowance on Rankin’s draft Plan of Survey to be an inexplicable anomaly with no apparent purpose; and his disregard of the fact that the pencil line ended at the location where Rankin’s final Plan demonstrated the northern terminus of IR 29 as surveyed by him. The final Plan of Survey’s demarcation of the east boundary is replicated in the public auction map and elsewhere to Rankin’s likely knowledge (given his role and presence at the public auction in September 1856 when the Disputed Lots were placed for sale) is further evidence that Rankin was satisfied the Disputed Lots were properly described as going to the lake’s edge. However, Rankin did not have any role in the preparation or review of the Patents for the Disputed Lots, and there is no evidence to suggest he did.

[321] I did not find Mr. Fediow’s evidence persuasive as he was prone to speculation when confronted with anomalies in his evidence.

[322] In my view, however, Dr. Ballantyne’s conclusion that the Treaty required the east boundary to intersect with Lake Huron at the water to eliminate the need for a short north boundary is erroneous as I will discuss later in these Reasons.

[323] Where the evidence of these three experts diverges in a material way, I prefer Dr. Ballantyne’s evidence. While Rankin’s failure to draw attention to the latent ambiguity he encountered in the form of the concavity of Lake Huron’s coastline, how he resolved it, as well as his failure to return to his instructing client for instructions is troubling, I accept that Rankin was under urgent time pressures to complete the survey and simply exercised his discretion according to ordinary survey principles applicable to deeds and resolved it on the ground as the most plausible explanation based on the record. This does not mean that I accept that Rankin exercised his discretion appropriately.

(d) Findings: Where did Rankin Mark the North Terminus of the East Boundary?

[324] Based on the evidence, I find:

(a) Rankin was instructed to mark the boundaries as defined by the Treaty on the ground with respect to IR 29 as part of his survey of Amabel Township.

(b) He discovered the concavity of the Lake Huron’s coastline on his shore traverse and made the decision to personally conduct the first day of the survey to mark the north terminus of the east boundary (leaving the balance of the east boundary survey to Gould).

(c) He located the “spot upon the coast” within Lot 31 on September 4, 1855 and planted a post further inland (at about 30 – 40 metres or 1.5 to 2.0 chains from the water’s edge of Lake Huron) to protect it from being removed by wave action.

(d) The “spot” was measured by Rankin as a distance of about nine and a half miles from the original Treaty-defined west boundary of the reserve. This was consistent with the fact the Copway Road amendment did not alter the location of the “spot”. The OIC approving the Copway Road amendment explicitly recognized this change in the west boundary resulted in additional coastline to the reserve, and did not reference the Treaty much less the alteration of any other boundaries.[^53]

(e) On September 4, 1855, Rankin started his survey at the “spot upon the coast”. His field note reads: “On sandy beach, at 14 ch to 115 ch Lake edge of, at 128 ch ascend the little sandy bank from the beach, then low sand hills…”. Based on this field note[^54], when read in the context of how Rankin used these terms elsewhere in his field notes, I find that Rankin located the “spot” on wet sand (not in the water) and then ran his chain line south along the concavity of Lake Huron’s coastline on wet sand following the coast along the Disputed Beach. This interpretation of the key fieldnote is support by the fact that Rankin did not note in his fieldnotes any change in the topography between Lots 31 and 26 and, elsewhere in his fieldnotes, Rankin wrote he was “in edge of water” at two stations further south of Lot 25 during the course of his survey of the reserve when he did enter the water of Lake Huron. Rankin considered the concavity to be an obstacle, or latent ambiguity, to marking the boundary entirely on dry land south from the “spot”.

(f) Rankin had two choices in exercising his professional discretion to resolve this latent ambiguity. He chose to move the “spot” to around the road allowance between Lots 25 and 26. No post was planted to mark this location as the north terminus of the east boundary because it was too close to the lake.

(g) He resolved the latent ambiguity by resort to the well-established survey framework of the hierarchy of boundary evidence. The hierarchy of boundary evidence was developed as a way to resolve latent ambiguities (discovered by the surveyor when marking boundaries on the ground) relating to deeds and plans.

(h) He failed to go back to the Imperial Crown for instructions contrary to his obligation as a surveyor. He did this in light of the enormous pressure he was under, as reflected in several communications, to complete the survey quickly to facilitate the Imperial Crown’s intention to hold a public auction of the surrendered land initially by the fall of 1855.[^55] Seeking instructions in the fall of 1855 ran the risk that the survey would be delayed due to the winter season.

[325] The north terminus of the east boundary was therefore surveyed by Rankin to be at around the road allowance between Lot 25 and 26, Concession D, Amabel Township and his final Plan of Survey, as deposited with Crown Lands Department, shows that.

[326] The draft map of Rankin is of little utility in determining where he ultimately placed the east boundary. The field notes of his survey, however, support this interpretation of his final Plan of Survey. The final Plan of Survey of Amabel Township marks the north terminus of the east boundary of IR 29 at the coastline of Lake Huron where it intersects with the west boundary. This location is not the “spot upon the coast” as defined by Treaty 72.

xi. Subsequent Post-Treaty Conduct of the Parties after the Final Plan of Survey of Amabel Township by Rankin

[327] In addition to the 1855 (Copway Road amendment) Order in Council, Rankin’s preliminary survey traverse and his final Survey, the next areas of post-Treaty conduct relevant to the Treaty interpretation analysis are the patents issued by the Imperial Crown and then the federal Crown, the early series of complaints raised by Saugeen and the Crown’s responses (including further surveys and boundary investigations) and the early plans of subdivisions.

[328] Before I review these communications, however, I will first address a trace map that received considerable attention at trial.

(a) Trace Map – Boundary Desired by Alexander

[329] In or around May 1856, Rankin referenced in his report on the survey of the southern half of the “Owen’s Sound & Saugeen Peninsula” an issue raised by Saugeen relating to the east boundary. In that report, Rankin enclosed a sketch referred to as “Saugeen Indians trace shewing their proposed alterations in the boundary of their Reserve”. This trace map appears to have been drafted by Rankin after discussion with “Alexander” – likely Alexander Madwayosh. On the trace map is reflected the east boundary as depicted by the Treaty with the words “Boundary according to Treaty” as a straight line in a due north direction. Beside it is another straight line in a northwest direction with the words “Boundary desired by Alexander”. The east boundary as drawn in this trace map is on a northwest angle and intersects with the coast at a point which is further south than the spot upon the coast and indeed south of the road allowance at Lots 25 and 26. Rankin recommended that the proposal be rejected as “unreasonable”, and it was not acted upon.

[330] Much was made of this trace map at trial. Ontario and the Landowners contended that this map is evidence that Saugeen’s intention when it entered the Treaty was to sacrifice even more coastline than was ultimately surveyed. However, I reject this inference. There is nothing in the archival record to suggest that Madwayosh took the position that the line reflecting the “boundary desired by Alexander” was what Saugeen had thought they had agreed to at the time of Treaty formation. In fact, Rankin characterized the proposed change as an “alteration” to the east boundary. Furthermore, Rankin did not recommend any change based on this trace map. In his return of survey, in which he included this trace map, Rankin wrote in part that this is a “rough trace shewing an alteration which they desire to have made in their Eastern boundary of their Reserve but which, as I think it unreasonable, I cannot recommend”. He wrote that he was providing it “at the request of the Saugeen Indians”. Had Rankin understood that this was a disputed boundary under the Treaty, he would have said so. Furthermore, and more importantly, if Rankin had understood this request to be in line with what had been agreed to at Treaty formation, it is unlikely he would have called it unreasonable and declined to recommend it.

[331] Accordingly, the “Alexander” trace map is of little probative value in this treaty interpretation analysis. It does not provide evidence of Saugeen’s intentions, much less the common intentions of the Treaty parties when they entered into Treaty 72.

(b) The Patents of Lots 26 to 31, Concession D, Amabel Township

[332] Commencing in 1857 through to 1907, the Disputed Lots were sold by the Imperial, and later, federal Crown. Whether or not the Patents for the Disputed Lots provided title to Lake Huron as the natural water boundary or stopped east of the Lake recognizing that the shoreline was reserve land, raised an important issue at trial.

[333] The court received expert evidence on this issue, which will be briefly reviewed now insofar as it relates to post Treaty conduct in the context of treaty interpretation. However, the issue of whether the patents extinguished Saugeen’s reserve interest in the disputed beach will be reviewed under the Defences section.

(i) Richard Simison

[334] Richard Simison testified as an expert on the historical patenting of Crown lands. He worked for 35 years as an official at the Indian Department in land research, management and policy. He was one of the last Department officials to draft quitclaim deeds.

[335] Mr. Simison was the only expert qualified to give expert evidence concerning the Crown’s policies, practices and procedures in drafting federal Crown Patents.[^56]

[336] Mr. Simison’s opinion was that the patent for Lot 28 demonstrates an unambiguous intention by the Crown to grant title to Lake Huron as a riparian property. His opinion is that all of the patents issued for Lots 28 (1857), 26 (1896), 27 and 29 (1881), 30 (1899) and the south half of 31 (1907) are for riparian properties, meaning that they border Lake Huron’s water’s edge, which he says is consistent with Rankin’s 1856 final Plan of Survey. Mr. de Rijcke disagreed and testified that the “free access” reservation likely referred to all lots except Lot 28 or was added in error. Mr. Simison’s opinion is to be favoured over Mr. de Rijcke’s on this point. Mr. Simison is qualified to provide opinion evidence on the federal Crown’s policy and practice surrounding drafting of Letters Patent, and Mr. de Rijcke is not.

[337] However, in my view, the Letters Patent (with the possible exception of the 1857 Patent for Lot 28) and plans of subdivisions and subsequent surveys are of little probative value in determining the common intention of the Treaty parties and the terms of Treaty 72 as they relate to the description of the east boundary itself. This is in part due to the passage of time (the second patent was issued in 1881 and the last in 1907), and in part because the subdivision plans cut both ways – they do not show a reserve boundary, but they also do not show that these lots adjacent to the Disputed Beach actually terminate at the water’s edge. They are not depicted as riparian lots.

[338] I will return to the issue of the Patents in addressing the Landowners’ defence of bona fides purchasers for value without notice.

(c) Complaints by Saugeen and Crown Responses – 1877-1888

[339] In reviewing the complaints made by Saugeen and the federal Crown’s responses, I am guided by the principle that the further away from the formation of the Treaty the relevant conduct is, the less probative that conduct is to the treaty interpretation exercise.

[340] Saugeen’s first documented complaint was made in 1877. It alleged that the north terminus of the east boundary was improperly placed at the road allowance between Lots 25 and 26 and ought to have been at the road allowance between Lots 30 and 31. The historical context of this complaint was the relatively recent passage of the Fisheries Act in 1857 and amendments in 1866, which imposed restrictions on Saugeen’s ability to fish, including having to pay for fishing licences, and created closed fishing seasons for various species of fish.

[341] As well, in 1876, the Dominion of Canada passed the first iteration of the Indian Act. Under the Indian Act, the local Indian Agent exercised much control over band information. The band had no control over its own funds either. For example, Saugeen did not have access to a copy of Treaty 72 until at least 1948.

[342] On March 1, 1882, the Superintendent responsible for Saugeen, William Plummer, advised the Indian Department that settlers were interfering with Saugeen’s fishing rights. His recommendation was that the Department purchase a strip of land that was about one chain wide (66 feet) across Lots 24 – 34, in order to permit Saugeen to fish and use the beach to dry their fish. This suggests that in Plummer’s view at least, the beach in front of these lots was not part of IR 29. In any event, Plummer’s recommendation was not acted upon.

[343] Prompted by its increasingly difficult ability to fish on its fishing grounds in the manner it did before the passage of the Fisheries Act, exacerbated by the encroachments to their fishing by settlers, Saugeen claimed that it possessed an exclusive right to fish in the Sauble River. A number of fishing-related complaints ensued over the next decades tied to Sauble River, Sauble Bay and Sauble Beach. For example, in 1886, Saugeen petitioned Indian Affairs “for the whole of the Sauble Fishing Ground” and later that year Saugeen asked that only members of Saugeen be allowed to fish at Sauble Beach. A band council resolution passed on August 4, 1890 claimed the right to fish on the “lake shore” of Lake Huron from French Bay and the Sauble River. On November 3, 1890, Saugeen passed a band council resolution claiming that the right to fish at Sauble Beach, including the disputed portion of that beach, had been reserved from surrender by Treaty 72.

[344] While these complaints were often framed in terms of Saugeen’s fishing rights at the Disputed Beach, it is a reasonable inference that Saugeen was asserting its right not only to the fishing grounds, but also the beach that was an integral part of its fishing activities.

[345] In the early 1900’s, Sauble Beach began to see a small population of seasonal cottagers emerge. As that population grew, Saugeen began to assert claims to the Disputed Beach in terms that were unrelated to fishing activities.

[346] On September 2, 1930, Saugeen passed a band council resolution calling for a general meeting “for the purpose of discussing the northern limits of the reserve”. The local Indian Agent, Don Robertson, advised Indian Affairs that “there is some dispute with the Indians as to how far up the Sable beach the reserve runs, the Indians claim that the reserve goes to the Sable river which if so would take in some fifty or sixty cottages”.

[347] In response to Indian Affairs’ advice that the reserve ended at the road allowance between Lots 25 and 26, Saugeen passed a resolution asking for a new survey of the eastern boundary, to be paid for from band funds. This request spawned a number of similar requests by Saugeen for surveys to be done or reviewed over the next decades.

[348] Of note, in 1888, PLS Nathaniel Low surveyed the southern portion of the eastern boundary of IR 29. He surveyed the eastern boundary from the southern boundary up to the road allowance between Lots 20 and 21 only. However, he placed an iron post at the road allowance between Lots 25 and 26. It is not known why he did this. In any event he did not re-survey Rankin’s work and his survey stopped south of Lot 26, Concession D, as he was not instructed to re-survey the east boundary. This iron post appears to have been assumed by some subsequent surveyors to have monumented the northern terminus of the east boundary.

[349] The Low survey did not result in a re-establishment of Rankin’s boundary that may have existed north of the Lot 25/26 road allowance. The northern segment covering the Disputed Beach did not form part of his instructions. However, PLS Low concluded in 1888 that Rankin commenced running his line at Lot 31 but excluded the coastline between Lot 31 and the side road of Lots 25/26 because Rankin thought the land comprised of sand unsuitable for farming.

(d) The Subdivisions of Lots 26 to 31

[350] In 1908, Lot 34 (north of the Disputed Beach area) was proposed to be subdivided into quarter-acre cottage lots. At this time, it was the position of Indian Affairs that any accretions of sand (creating a wider beach) beyond the shore road allowance that ran parallel to the shoreline were owned by the Department of Indian Affairs.

[351] In around 1923-26, interest developed in Amabel about the potential subdivision of Lots 25, 26 and