Common Sense Calls for One of Two Outcomes in this Case:
There should be one of two possible outcomes to this landclaim from a trial if the legal system is set up to bring justice.
- Crown Indigenous Relations and SFN meet the requirement to fully and completely prove, beyond a reasonable doubt, that the Saugeen Native reserve's north east boundary terminates at midpoint lot 31. To do this it should be required that they have taken all evidence into consideration. If they are successful, the Saugeen band should have the land restored to them with compensation. The Town and the private landowners should also be well compensated for their loss since their titles are all valid and registered legally without ambiguities.
- If the defense, however, presents irrefutable evidence or evidence which cannot be disproven (evidence should be submitted on its merits and not whether a client is financially able to do so) and is contrary to the Saugeen claim, it should be determined that the Saugeen claim is unfounded and thrown out of court. The result should be the landowners and the Town retain title to their properties. Compensation should also be awarded to the Town and landowners for being denied due process as well as being subjected to undue stress and suffering for an unwarranted amount of time. You only need to look at the length of time for the Sarnia case to prove due process has been denied in this case.
Sarnia
Back in December of 2000, a decision for the Sarnia Native land claim was rendered. The decision considered that the Crown Patents of the landowners were invalid. However, since so much time had passed without a challenge from the Sarnia band along with missing information and it being unfair trying to equate the law of the past to the law of the present, the judge ruled in favour of the landowners. A good article about it can be found here.
The reason the Crown Patents were invalid in the Sarnia case was because the land was purchased directly from the Native band without it being surrendered to the Crown first. The Natives did actually sell the land and did actually receive payment for the land. Unlike Sarnia however, the land from lot 26 to 31 in Sauble Beach was surrendered and you can look over previous postings on this blog for the proof. The previous posting "About" Nine and a Half Miles is a good start followed by the Copway Road Amendment Theory onward.
In the Sauble case, it would appear that the Town is going to defend the validity of the Crown Patents from lot 26 to 31. You may ask, "that's good, isn't it?" It is definitely a good start. My concern would be, by defending the Crown Patents only and not putting forth a counter argument to CIR/SFN's NE < Ind. Res. notation theory it will not resolve and disprove SFN's claim. Meaning, although the patents are valid, it appears as though they shouldn't have been issued. As was the case for Sarnia, the Sauble landowners should be allowed title to their land based on similar arguments from the Sarnia case with one advantage: the Sauble Crown Patents were issued by the Crown.
Possible Outcomes
Don't get me wrong, I am not getting ahead of myself by thinking that this case is a "slam dunk" for the defense, far from it. I think it should be, yes, but I believe that there is a thinly vailed secret desire for a politically correct outcome in court. Perhaps outcomes that have been bandied about in the secret confines of the Barrister's Lounge. Maybe outcomes like:
- Saugeen Band are awarded both the land and compensation. Landowners and Town receive market value as compensation for their loss. A very possible outcome from a politically correct standpoint.
- Saugeen Band are awarded both the land and compensation. Landowners receive nothing but the use of the land. Probably the most politically desirous outcome considering the mediation of 2006, but perhaps the most difficult to pull off in court based on the evidence that will be heard.
- Private landowners and the Town are allowed to keep title of their land without compensation for their troubles and the Saugeen Band is awarded a huge compensation package. Not the end of the world politically, but it leaves things untidy and open for appeals by the Saugeen band.
At this point, the facts are being ignored. Based on the wording of the Treaty it should not be ignored that it is impossible for CIR/SFN to prove the Saugeen boundary terminates at midpoint lot 31 or even should have terminated at midpoint lot 31. The Treaty description supported by CIR/SFN that the 9 1/2 mile measurement is to begin from the NW position of the original western boundary to midpoint Lot 31 is mathematically impossible. It is also impossible for the eastern boundary to run parallel to the western boundary as required by the Treaty terms using the CIR/SFN argument. The revised locations of these two problems are not impossible and match the treaty terms exactly once the Copway Road amendment research I have conducted and support is considered. Once the amendment was put in place the wording of the treaty was slightly changed, but left no doubt as to where the 9 1/2 mile shoreline boundary measurement was to begin. In rebuttal, CIR/SFN will argue, yes, but it was the original intent of the treaty that the shoreline from Lot 25/26 to midpoint Lot 31 was to be included as part of the SFN boundary and that the Copway Road Amendment is in addition to the original instructions. This is false. There was a mistake and miscommunication at the time of surrender which resulted in the placing of the NW position of the western boundary 1 1/4 miles north along the shoreline from where it was initially agreed to be located. The original NW position of the western boundary was never the intended location by either Indian Affairs or the Saugeen Band in 1854. The mistake was demanded by the 1855 SFN to be remedied which led to the Copway Road Amendment.
This information is being totally ignored by Canada and the legal system. Conceptualizing this information may sound complicated, but it is relatively simple if it is visually presented on a map. It is all documented and can be proven without doubt, yet it is being totally ignored or more correctly, it is being avoided. How can this be allowed to happen? The real possible outcome is not even listed above which should be: The private landowners and the Town keep title to their properties and are compensated for their time and trouble for the last 30 years. The SFN land claim is ruled unfounded and everyone is allowed to get on with their lives.
It is my opinion, since Crown Indigenous Relations has taken the position to support the claim of the Saugeen Band, they should have to argue their claim and prove it in court against the Copway Road Amendment argument. This is new evidence and has never been given a chance to challenge the evidence of CIR/SFN. If the defendants do not put Crown Indigenous Relations and the Saugeen First Nation to task and only argue the validity of the Crown Patents, the issue of true ownership may never be resolved and the claim will never be settled definitively one way or the other.
As I said before, the Crown Patents in this case are valid and unlike Sarnia, due to the evidence in the Sauble case, it will be very difficult to argue that the Crown Patent's are not valid. This would make option 2 from the above list of possible outcomes unlikely. I base this on:
On the other hand, if the land is given to the Saugeen band and the landowners are compensated, the people of South Bruce Peninsula will feel they have not been properly represented. Most have at least some knowledge of the basics of the arguments of this lawsuit and have bought their beach properties on the assumption it is municipal land. Again, without closure to the argument, this can only create resentment and more hard feelings and a perception that they have been cheated out of their beach without a say in the proceedings.
What's Going On?
You have to ask yourself, what's going on with this land claim? If you have followed this blog from the beginning or have first hand knowledge of what has happened over the last 25 years, you may well be asking: What the hell is going on? A certain person I sought advice from said "You have my deepest sympathies. It's Kafkaesque for you." If you wonder what this means read The Trial by Franz Kafka.
There has been a very suspicious and bad odour to this claim for a very long time. At least since 2006. Consider the following list for example:
Why would defense council, particularly Ontario (blamed by Canada for everything), not take an aggressive stance and try to disprove the position of CIR and the Saugeen band in court a long time ago? Four reasons that I can think of:
This posting may sound like a personal vendetta on my part toward the Saugeen Band. I say this not because I think it sounds that way, but because due to the political climate we live in today, anything said challenging a Native position is perceived as slanderous and racist. For those who feel this way I remind you that I find myself in the same situation as what the Native people complain to be in: Someone with a lot more power and influence is trying to strip me of my rightful ownership to my land which I have obtained and possess legally contrary to the claim that I obtained it by way of adverse possession. On my own, there is very little I can do to prevent them from doing what they have set out to do.
Even though the Saugeen Band has aggressively pursued ownership of my property and even though the Native position and policy states that no third party ownership will be included in land claims, I harbour no ill feelings toward the Saugeen band. I am annoyed however, that because of the political climate of today, the Saugeen band have the advantage both in public perception and political assistance not to mention sympathy within the legal system. Anything that can be done from a political and legal perspective to ensure the Saugeen Band is successful is being done. You only need to look at the treatment of Judge Newbould and the complete denial of the evidence I have uncovered to see this is true. The same cannot be said of the private landowners and the Town. Ontario could be far more supportive and aggressive in favour of our position, but have been sitting on the fence for reasons which appear to be political in nature.
I understand what motivated the Saugeen Band in this claim, but I also understand my own motivations. People don't understand that the SFN had a totally different belief as to why their boundary should continue further north as far as the Sauble River. It is not the same original belief as compared to what is being presented by CIR in their defense. Since the discovery of the Copway Road Amendment Theory, I am outraged by the sloppy investigation that brought this land claim into existence. With the support of the Canadian government, the Saugeen Band has nothing to lose by aggressively challenging my ownership title. It is my firm belief that this claim is unfounded and I believe I, with the help of the BBR, have delivered the evidence to prove it. If the defense lawyers never present these arguments, it is my belief that non-Native people in this case are being cheated and that there is a double standard in this country. I have been placed unjustly in a negative, life altering experience for the last 30 years.
The blame for this case lies entirely at the feet of Crown Indigenous Relations. They jumped to conclusions too quickly and created a monster to which they will not accept responsibility. No one deserves to have 30 years plus of their life to be disrupted in this manner regardless of the appearance there is a possibility a Native interest has been denied. Especially when that person has met their legal requirements for possession of the land and the government is supposed to be legally obligated to stand behind those requirements.
In 2015, I put forth a petition to try and have third party interests protected in land claims. It was presented to the Ontario legislature without success. If third party ownership is questioned in a Native land claim, there should be a formula to fairly evaluate the property for the government to expropriate the land and remove the third party from the proceedings. If the landowner would rather fight for his right to the land that also should be their choice. From my experience, however, I would advise for expropriation. I wouldn't wish a Native land claim on my worst enemy.
Burden of Proof...
The burden of proof is supposed to be on the Saugeen Band and more specifically Crown Indigenous Relations since they are the ones supporting and, in essence, presenting the argument for the Saugeen Band. Unfortunately, even though Canada has failed in this obligation, based on the evidence they have presented, they are somehow pardoned in our legal system. In this case it seems the burden of proof has now been placed on the defense. Canada presents a presumptuous argument and automatically it is considered the truth. Why? Because they control the mediation process and have unlimited funds to use to their advantage. Now, the defense has the burden of proof unfairly placed on them. Even though that burden of proof has now been satisfied, no one is obligated to give it recognition unless it is financially supported and sent through the proper channels to be heard in court.
Even though the defense has cast more than enough reasonable doubt upon the evidence of CIR/SFN, it is not enough for the case to be dropped, even with the Copway Road Amendment argument. Anyone with a grade eight education could examine the two arguments to determine which one is built on logic through a thorough examination of the actual evidence and which one is built on assumption and wishful thinking by ignoring certain elements of the evidence. Why do we need to take this to court for a decision? As I have said: it is impossible to prove the assumptions made by Crown Indigenous Relations/Saugeen First Nation to support a successful outcome for the SFN claim. Not improbable... impossible. That being said it is easy to mislead the uninformed with their assumptions. However, the Copway Road Amendment argument matches the Treaty terms to the SFN boundary outline found on the final and official survey map of 1856. How can this not be considered the ultimate goal of success to determine whether the SFN received the reserve territory they should have?
It is my opinion, since Crown Indigenous Relations has taken the position to support the claim of the Saugeen Band, they should have to argue their claim and prove it in court against the Copway Road Amendment argument. This is new evidence and has never been given a chance to challenge the evidence of CIR/SFN. If the defendants do not put Crown Indigenous Relations and the Saugeen First Nation to task and only argue the validity of the Crown Patents, the issue of true ownership may never be resolved and the claim will never be settled definitively one way or the other.
As I said before, the Crown Patents in this case are valid and unlike Sarnia, due to the evidence in the Sauble case, it will be very difficult to argue that the Crown Patent's are not valid. This would make option 2 from the above list of possible outcomes unlikely. I base this on:
- The official and final map of 1856 shows the lots going to the waters edge (remember: during mediation this map wasn't even considered for argument.)
- BBR if it were to be presented.
- Censored
- The 1910 letter from the Wiarton Indian Agent advertising that the lots go to the waters edge.
- The 1932 response letter from Indian Affairs to Livingston Huff validating the belief that the lots go to the waters edge, plus, the owner of the lot is entitled to any accretion to the lot.
- Several more letters in subsequent years that all validate the Crown Patent owners land is secure in title.
- The Crown Patent's themselves make no reservation for anything in front of the lots to the west. Road allowance, shoreline allowance, or a Native Reserve. This would indicate riparian rights.
- The initial owners of the lots purchased the Crown Patents legally through Indian Agents representing Indian Affairs.
On the other hand, if the land is given to the Saugeen band and the landowners are compensated, the people of South Bruce Peninsula will feel they have not been properly represented. Most have at least some knowledge of the basics of the arguments of this lawsuit and have bought their beach properties on the assumption it is municipal land. Again, without closure to the argument, this can only create resentment and more hard feelings and a perception that they have been cheated out of their beach without a say in the proceedings.
What's Going On?
You have to ask yourself, what's going on with this land claim? If you have followed this blog from the beginning or have first hand knowledge of what has happened over the last 25 years, you may well be asking: What the hell is going on? A certain person I sought advice from said "You have my deepest sympathies. It's Kafkaesque for you." If you wonder what this means read The Trial by Franz Kafka.
There has been a very suspicious and bad odour to this claim for a very long time. At least since 2006. Consider the following list for example:
- The NE < Ind. Res. notation was never fully investigated by any expert representing Canada after the BBR or after my own investigation. Canada holds strong to the ambiguous speculation of its meaning. The notation is left as the "elephant in the room", no one wanting to discuss it past what CIR and SFN have inferred it to mean. Even if you question the explanations from my Copway Road Amendment Theory, it is still far more plausible and supportable than the CIR/Saugeen Band theory.
Wouldn't you think that it would make Ontario, owners of the Censored, want to investigate the Copway Road Amendment argument further? Canada is trying to blame Ontario for everything. The Copway Road Amendment argument shows Ontario did no wrong. What about the Town? Why aren't they more interested? I know for a fact that they are aware of the information. If you thought that you could win a case with new information, wouldn't you professionally investigate the plausibility of that information? Not aggressively challenging CIR/SFN's assumptions regarding the boundary argument is very puzzling if not outright suspicious.
Without funding, I cannot afford to have the Copway Road Amendment argument professionally corroborated. Even though, I have tried and all the CLS's I have contacted would not touch it. Try this for irony: To qualify for funding for this case, I have to prove that I have no means to financially support the proceedings and trial. If you are rejected for funding, lawyers will not represent you because they are fully aware that you cannot afford to pay them the amount of money it would take to represent you. Described as hundreds of thousands of dollars.
This should not be my problem. My research has uncovered enough evidence to either disprove CIR/SFN's theory or cast enough doubt that their theory can't hold up. It is impossible to prove CIR/SFN's NE < Ind. Res. post theory. It is that simple. On the other hand, presently, there is no further evidence that can prove the Copway Road Amendment argument wrong. Based on this fact, Canada or Ontario should have to foot the bill to have a CLS give an opinion on my research, not me.
It's not surprising no one is interested in further investigation considering:
- At the time of my first discovery regarding this case in 2006, my explanation of the possible meaning of Huff letter was never presented or even submitted to anyone. If you read my explanation, you would be hard pressed to disagree that it gives a better explanation than the argument of CIR/SFN.
- It is difficult to understand why the Town's first lawyer was not reporting any information to Town council. Can someone explain this to me? What does this say about how the defense was being represented and why they were being kept in the dark?
- Two day mediation meetings of 2006. Private landowners not invited to day one and Town Mayor not invited to either. Why? Guess who was presenting at day one? BB. Guess who was present for day one and two? SFN.
- Why did Ontario commission the Censored if they had no intention of using it? To this day, they have not commented. I think the conclusion of the BBR took them by surprise. I think they were expecting a similar conclusion to that of CIR/SFN and it left them dumbfounded when this wasn't the case leaving them questioning themselves as to how to proceed.
- The CIR presentation meetings of 2014 in Wiarton and Sauble Beach. Information was deliberately withheld from the public to keep this from going to court in a hope that the Town and the residents of South Bruce Peninsula would accept a dubious settlement proposal. Ontario once again intentionally let an opportunity go by to present the Censored and support the Town and the private landowners.
Meanwhile the Canadian Judicial Council is trying to besmirch the career of Judge Newbould for his participation and the opinions he provided as a result of the 2014 meeting. The attack on Newbould was demanded by the Indigenous Bar Association. Is there not an obvious double standard here? The Canadian government, represented by Crown Indigenous Relations is allowed to come to Sauble Beach and Wiarton and present incomplete and inaccurate information, yet when an actual Ontario Superior Court appointed judge questions the accuracy and value of that information he is silenced, allowing the misinformation to continue. - It took five years to settle the Sarnia case. Why has it taken twenty-five years just to get to where we are now? What is different between the two? Is it because there are only four private landowners and the Town involved in the Sauble case with land that is almost vacant of buildings or improvements? Under these circumstances Sauble's not likely to stir up too much public attention. Compare this to Sarnia which had 2000 settled families and a few large business corporations for the government to contend with. The families presented their case as a class action and therefore had financial clout.
- There is no public pressure or outrage of any kind. If people are not directly affected, they are apathetic. What people don't realize is: if the landowners lose, the validity of Crown Patents and registered deeds will become open to review. The way the government is respecting "traditional territories" of Native bands, this is a terrifying prospect.
These examples of absurdities are only a testament to the fact that further investigation would easily have lead to the truths I have uncovered. Something that was politically not desired.
- For many years before the BB Report, CIR had convinced the defense that they didn't have a defense. Even with the BB Report, since it did not tackle the issue of the NE < Ind. Res. notation and the impact of the Copway Road Amendment, the defense still believed the Saugeen Band had a reasonable case. No one seemed to understand that, according to the Treaty, it is mathematically impossible for the Saugeen boundary to extend to lot 31.
Therefore, if the claim could be resolved through mediation, the Saugeen band could be publicly touted as the winner who had been wrongly stripped of their land. They would receive the disputed land and would also receive a large compensation package. Crown Indigenous Relations Canada would appear as the "knight in shining armor" bringing a resolution to another land claim and fulfilling their fiduciary duty to the Native people. Ontario doesn't have to get involved in a messy court case and The Town, they're not even aware of the proceedings due to a lawyer with motives that can only be described as suspicious.
Very few are directly hurt if the SFN are successful in this landclaim; a handful of landowners. Landowners who, without anyone left to champion their cause in court, don't have the financial clout to defend themselves. Legal council for the landowners see this as a good reason for not defending further. Court is avoided, the evidence presented by CIR/SFN is all that the public is made aware of and all is presented in a neat package with a tidy little bow.
As I stated earlier, in my opinion, Ontario was not prepared for the results of the BBR with only two and a half months separating the delivery date of the BBR and the actual mediation of 2006. Therefore they basically "chickened out" of an adversarial position against Crown Indigenous Relations and the Saugeen Band, having little time to digest the BBR. Ontario may also not have wanted to appear as the "bad guy" in Native relations with Mike Harris' infamous order to the police in regard to Ipperwash still ringing in the ears of the public. - If mediation somehow fails and the court rules in favour of the Town and the landowners, by agreeing to use the Crown Patent argument only, it would still leave a door open. The perception would be that the Saugeen Band have been wronged by the government by issuing Crown Patents that they shouldn't have and the band would be entitled to a large compensation package. The Saugeen Band would not be left with nothing and it will appear that CIR did not waste 25 plus years of the taxpayers money defending the Saugeen claim. It's almost like plea bargaining.
- Perhaps you get a sympathetic judge to Native issues and despite the Crown Patent evidence, a decision is rendered in favour of the Saugeen Band. The band receives the full package of land and money. Since they are supported by CIR, the Saugeen Band has nothing to lose by going to court and the defense is nervous about the sympathetic political climate regardless of the strength of their evidence.
- Do you remember the threat of "political action" in the case of Judge Newbould made by Koren Lightening-Earle? Do you think that this same threat doesn't influence how negotiations proceed in land claims?
This posting may sound like a personal vendetta on my part toward the Saugeen Band. I say this not because I think it sounds that way, but because due to the political climate we live in today, anything said challenging a Native position is perceived as slanderous and racist. For those who feel this way I remind you that I find myself in the same situation as what the Native people complain to be in: Someone with a lot more power and influence is trying to strip me of my rightful ownership to my land which I have obtained and possess legally contrary to the claim that I obtained it by way of adverse possession. On my own, there is very little I can do to prevent them from doing what they have set out to do.
Even though the Saugeen Band has aggressively pursued ownership of my property and even though the Native position and policy states that no third party ownership will be included in land claims, I harbour no ill feelings toward the Saugeen band. I am annoyed however, that because of the political climate of today, the Saugeen band have the advantage both in public perception and political assistance not to mention sympathy within the legal system. Anything that can be done from a political and legal perspective to ensure the Saugeen Band is successful is being done. You only need to look at the treatment of Judge Newbould and the complete denial of the evidence I have uncovered to see this is true. The same cannot be said of the private landowners and the Town. Ontario could be far more supportive and aggressive in favour of our position, but have been sitting on the fence for reasons which appear to be political in nature.
I understand what motivated the Saugeen Band in this claim, but I also understand my own motivations. People don't understand that the SFN had a totally different belief as to why their boundary should continue further north as far as the Sauble River. It is not the same original belief as compared to what is being presented by CIR in their defense. Since the discovery of the Copway Road Amendment Theory, I am outraged by the sloppy investigation that brought this land claim into existence. With the support of the Canadian government, the Saugeen Band has nothing to lose by aggressively challenging my ownership title. It is my firm belief that this claim is unfounded and I believe I, with the help of the BBR, have delivered the evidence to prove it. If the defense lawyers never present these arguments, it is my belief that non-Native people in this case are being cheated and that there is a double standard in this country. I have been placed unjustly in a negative, life altering experience for the last 30 years.
The blame for this case lies entirely at the feet of Crown Indigenous Relations. They jumped to conclusions too quickly and created a monster to which they will not accept responsibility. No one deserves to have 30 years plus of their life to be disrupted in this manner regardless of the appearance there is a possibility a Native interest has been denied. Especially when that person has met their legal requirements for possession of the land and the government is supposed to be legally obligated to stand behind those requirements.
In 2015, I put forth a petition to try and have third party interests protected in land claims. It was presented to the Ontario legislature without success. If third party ownership is questioned in a Native land claim, there should be a formula to fairly evaluate the property for the government to expropriate the land and remove the third party from the proceedings. If the landowner would rather fight for his right to the land that also should be their choice. From my experience, however, I would advise for expropriation. I wouldn't wish a Native land claim on my worst enemy.
Burden of Proof...
The burden of proof is supposed to be on the Saugeen Band and more specifically Crown Indigenous Relations since they are the ones supporting and, in essence, presenting the argument for the Saugeen Band. Unfortunately, even though Canada has failed in this obligation, based on the evidence they have presented, they are somehow pardoned in our legal system. In this case it seems the burden of proof has now been placed on the defense. Canada presents a presumptuous argument and automatically it is considered the truth. Why? Because they control the mediation process and have unlimited funds to use to their advantage. Now, the defense has the burden of proof unfairly placed on them. Even though that burden of proof has now been satisfied, no one is obligated to give it recognition unless it is financially supported and sent through the proper channels to be heard in court.
Even though the defense has cast more than enough reasonable doubt upon the evidence of CIR/SFN, it is not enough for the case to be dropped, even with the Copway Road Amendment argument. Anyone with a grade eight education could examine the two arguments to determine which one is built on logic through a thorough examination of the actual evidence and which one is built on assumption and wishful thinking by ignoring certain elements of the evidence. Why do we need to take this to court for a decision? As I have said: it is impossible to prove the assumptions made by Crown Indigenous Relations/Saugeen First Nation to support a successful outcome for the SFN claim. Not improbable... impossible. That being said it is easy to mislead the uninformed with their assumptions. However, the Copway Road Amendment argument matches the Treaty terms to the SFN boundary outline found on the final and official survey map of 1856. How can this not be considered the ultimate goal of success to determine whether the SFN received the reserve territory they should have?
I put anyone to task to prove the research and evidence I have produced regarding the Copway Road Amendment, which proves the SFN claim to be unfounded, to be inaccurate, incomplete, incorrect, or in any way presumptuous.
I invite you to watch my YouTube videos on the topic, but my most up-to-date version can be found at:
