Ninth Line of Fact Sheet:
Correspondence between local landowners (e.g. Livingston Huff) and the Government of Canada has been exchanged over the years, but has not impacted the evidence upon which the federal position is based.
Why the qualification "but has not impacted the evidence upon which the federal position is based"?
Answer: With this qualifier, INAC just presents the Huff letter and doesn't tell you that other correspondence with the government took place from land owners looking for assurance that their property was not on Native boundaries. All inquires were answered that their properties were safe including a response letter sent to my Uncle Harold which was answered by then Minister of Indian Affairs, Jean Chretien in the 1960's.
I have read the Livingston Huff letter and I would admit at first glance it seems to support a reserve boundary, but on further analysis the letter is full of latent ambiguity.
So, from reading this letter, it would seem to leave no doubt that there is indeed reserve land between lots 26 to 31 at the water’s edge. However, the letter says that the white people were made to get off that strip from lot 26 to the Sauble River, not to lot 31. The Native’s themselves claim that in the working papers in Rankin’s notes, the post, supposedly indicating the Indian Reserve, is at lot 31. So why should white men have to get off all the way to the Sauble River?
Is it a strange coincidence that the area Livingston Huff is describing matches exactly the area described in the Special Fishery License? Could it be that the Natives told the white people to move off that strip because of the fishing license? It does say in the license that the Native’s will “neither sublet nor enter into partnership with white men.” Could members of the Band have mistakenly interpreted the license as ownership of the shoreline?
Huff’s letter says “the white people were made to get off that strip right to the Sauble River.” This is not consistent with the intention of Mr. Plummer’s proposed 66 foot reserve allowance I mentioned in the previous posting. It said that the allowance would not deny free access to the settlers to the water. This raises the question of where Livingston Huff received his information.
One last anomaly about INAC’s interpretation of the Huff letter: Livingston Huff’s letter states that there is 10 acres in front of his lot that is Indian Reserve from Lot 26 right to the Sauble River. If you approximate the distance from the Sauble Welcome Sign at the division line of lots 25/26 to the Sauble River at 2.2 miles, the strip Mr. Huff is describing is 37.5 feet wide. This establishes a similarity to the proposed 66 foot allowance, but it does not support the area the Saugeen Band is claiming. In fact, it establishes that if the Saugeen Band has any right to the shoreline from lot 26 to lot 31 it is to land and cure fish and that is all; it is not a reserve of ownership. It also adds to the confusion as to how wide an allowance was agreed to if an allowance had been established.
Calculations:
10 Acres = 435,600 sq feet
Lot 26 to River = 2.2 miles
5280 * 2.2 = 11,616
435,600/11,616 = 37.5 feet
INAC is supporting a claim of the entire beachfront from lot 26 to 31; at times as wide as 200 feet.
In 1932 the most substantive reference to where lots 26 to 31 end are in Rankin’s official survey for the plan of Amabel Township which show the lots as going all the way to the water’s edge and the description of the northern half of lot 31 by the Wiarton Indian Agent who also has the boundary at the water’s edge. So, who told Huff that “the white people were made move off that strip right to the Sauble River”? It certainly wasn’t the government of Canada or its branch at Indian Affairs as can be examined in the following response to Mr. Huff's letter:
If you find it hard to read the content of the above letter, it reads as follows:
Ottawa, September 14th, 1932
Sir,
I desire to acknowledge receipt of your letter of the 30th ultimo with reference to Lot 26, Con. "D" in the Township of Amabel, and advise that the Departmental records show that 130 acres, more or less, covering this lot, were patented to John Wenley (Wesley) Huff early in 1896. As the Department disposed of its interest in this lot by Crown Grant many years ago it is precluded from taking any action at this date.
Any normal accretion to this lot would, of course, go to the purchaser or his assignee, and the Department, therefore, has no further interest in the land which you are desirous of securing.
Your obedient servant
J.C. Caldwell,
Director, Indian Lands and Timber
What does this say about Indigenous and Northern Affairs Canada as a department representing Canada? Why would INAC keep this response letter from the residents of South Bruce Peninsula other than to manipulate evidence? This response doesn't only support the fact that the lots from 26 to 31 go to the waters edge, it also supports the fact that if there is accretion at the shoreline, the purchaser or his assignee is entitled to ownership of that accretion. Meaning the lots will always go to the waters edge.
Tenth Line of Fact Sheet:
The law is clear that an Indian interest in reserve land cannot be lost or extinguished without a formal surrender of the land to the Crown by the First Nation. Such a formal surrender has never happened.
This is not true as can be seen in the decision made in Sarnia in the case of The Chippewas of Sarnia Band v. A.G. of Canada et al. and also in the case of the Papachase Band of Edmonton in Canada (Attorney General) v. Lameman. The following is a summation of the Sarnia decision:
The Ontario Court of Appeal released its decision in the case of The Chippewas of Sarnia Band v. A.G. of Canada et al., on December 21, 2000, in which the defendants in the action included a large group of representative landowners (the Sarnia Landowners). The five-judge panel concluded that entitlement to the land in question rests with the Sarnia Landowners.
The dispute arose from an aboriginal land claim over a four square mile parcel of land near the City of Sarnia, which is presently occupied by over 2,000 businesses, organizations and individuals. In April, 1999, Ontario Superior Court Justice Archie Campbell ruled that an 1853 Crown patent purporting to transfer the lands from the Chippewas of Sarnia to a non-aboriginal party was invalid. He dismissed the Chippewas’ claim against the Sarnia Landowners, however, based on equitable grounds.
The Court of Appeal upheld Justice Campbell’s decision, noting that although the Chippewa lands were never properly surrendered to the Crown, by virtue of their subsequent actions, the Chippewas effectively accepted the sale of their lands. In other words, the good faith purchaser for value defence should be applied in favour of the Sarnia Landowners. The Chippewas are left with their claim in damages against the Crown.
The Supreme Court of Canada ruled in 2008 in the case of Canada (Attorney General) v. Lameman the following:
This Court emphasized in Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79, that the rules on limitation periods apply to Aboriginal claims. - 10 - The policy behind limitation periods is to strike a balance between protecting the defendant’s entitlement, after a time, to organize his affairs without fearing a suit, and treating the plaintiff fairly with regard to his circumstances. This policy applies as much to Aboriginal claims as to other claims, as stated at para. 121 of Wewaykum:
Witnesses are no longer available, historical documents are lost and difficult to contextualize, and expectations of fair practices change. Evolving standards of conduct and new standards of liability eventually make it unfair to judge actions of the past by the standards of today.
The same defence was also used in the Sarnia case.
I invite your comments or arguments, but please, let's be respectful of one another. I understand that this is a heated debate, but derogatory remarks toward anyone are not welcome
Thank you.
No comments:
Post a Comment