- by Kyra Brennan & Chris Albinati

The picturesque dunes of Sauble Beach and the jurisdiction of the Saugeen Ojibway Nation (SON) over them have been under attack since last week.

Acting under the directions of the Town of South Bruce Peninsula (the Town), workers began marking out nearly half a kilometre of the dunes for excavation.

Reaction from vigilant community members was swift and poured in over social media. Surprise, shock, anger and even betrayal were the themes that played out in videos and comments that were posted and shared thousands of times in private and public social media forums. The reason underlying this collective expression of outrage is simple and obvious: There was no public notice or consultation process.

For a project that will literally reshape the face of Sauble Beach by paving over its natural beauty, the failure of the Town to meaningfully engage both the public and SON, speaks volumes about the attitude of the current Council and its Mayor Janice Jackson.

All of this seems to have started on November 17. A review of the relevant documents reveals that the project was rushed through as quickly as possible.

First, the Town’s council minutes state that “Approvals have been received from [Grey Sauble Conservation Authority (GSCA)] and [Ministry of Environment, Conservation and Parks (MECP)].”1 However, the report from the Director of Public Works, Lara Widdifield, which is referenced in the minutes, indicates that, “MECP has granted approval in principle” and that the GSCA “has been consulted and has indicated that the project seems approvable, pending a detailed design.”2

The recording of the GSCA’s meeting that day indicates that virtually no planning or studies have been undertaken.3 The project is discussed in the first 11 minutes of the meeting and several things stand out:

First, the project does not appear to be urgent as safety and parking have been an agenda item since 2017. Second, the GSCA’s policy sets out a blanket prohibition on development in this area. Third, prompted by questions from GSCA Director Marion Koepke, there were no coastal engineering studies conducted and no consultation with Lake Huron Coastal Centre was undertaken. The explanation for this amounted to accepting the Town’s characterization of the project as essentially little more than routine maintenance of a public road; described “more or less” as an idea that they wanted “to try to see if it would meet their needs for parking”. There appear to have been no concerns or further questions on this. The GSCA seems to have simply accepted the Town’s explanation at face value and on that basis, authorized an exemption to its blanket prohibition on development.

The lack of notice, public engagement, credible information, detailed planning, careful study, and due diligence underlying the approval process of this project by both the Town and the GSCA should be startling to anyone.

However, no one appears to have been more startled by the project than the proper title holders and authority over the area in question, the Saugeen Ojibway Nation (SON).

On November 24, SON was made aware of the project and released a public letter addressed to the Town and the Director of Public Works which states that, “the location in question… is and always has been part of Saugeen First Nation Indian Reserve #29. The town is well aware of this fact. The fact that this land is Saugeen’s reserve land been confirmed by the Federal Government, which has previously advised project proponents that no activities can occur there unless ‘you have obtained the consent of Saugeen First Nation to proceed with the’ activities. As such, any undertaking on this portion of Saugeen’s reserve land without consent is unlawful and is trespassing on the reserve.”

The letter goes on to direct the Town in no uncertain terms that, “the proposed work must stop until the Town has fulfilled its obligation to consult with and obtain consent from Saugeen First Nation regarding the proposed activities to occur within Saugeen First Nation Indian Reserve #29”.

The requirement to obtain the consent of SON before proceeding with any proposed activity on SON’s territory is more than just a procedural hurdle. It is a constitutional obligation under Canadian law which can be traced back over 250 years.

The failure of settler governments to respect the inherent rights and jurisdiction of Indigenous Nations over their territories has been the lifeblood of colonialism in this country since contact. The Crown and Indigenous Nations addressed this failure through years of treaty-making and engagement, a process which included the Royal Proclamation of 1763 and the Treaty at Niagara in 1764.

Combined, these events recognize the inherent rights and jurisdiction of Indigenous Nations and set out the terms by which settler governments and Indigenous Nations are to peacefully and respectfully co-exist. The Constitution Act, 1982, recognized and affirmed those rights, entrenching them into the supreme law of Canada. The Supreme Court of Canada has fully endorsed those rights through dozens of landmark decisions over the past three decades.

However, as history has shown, settler governments do not always act as the law requires. Colonialism has insidiously infected successive settler governments who have attempted, and continue to attempt, to displace and dispossess Indigenous peoples from their territories. The sole purpose of colonialism has always been to secure access to Indigenous territories, to pave the way so to speak, for settlers, industries, tourists and others.

What Mayor Jackson loosely characterizes as “road maintenance” is, in fact, a clear act of colonialism. The Town is literally bulldozing portions of SON’s territory in order to expand parking capacity and the associated revenues the Town receives.

Mayor Jackson’s affinity for bulldozers and disdain for the natural beauty of Sauble Beach is widely known.4 Under the Mayor’s watch, Sauble Beach lost the Blue Flag beach designation in 2015; an international award which recognizes beaches that adhere to the best environmental, sustainability and tourism practices. The reason the prestigious title was taken away was because the Mayor ordered that raking the beach should continue. At the time, the Mayor defended the decision stating that the Ministry of Natural Resources (MNR) had given the Town permission.5

Contrary to the Mayor’s statement, in 2017 and 2018 respectively, MNR charged the Town for raking the beach with two counts of endangering piping plover habitat. The Town was found guilty on both counts and was ordered to pay a fine of $100,000, though it could have faced fines up to $1-million for each count. The Town appealed the decision and Ontario Court Justice Julia Morneau has reserved judgment until March 9, 2021.

The Mayor’s stubborn determination to continue waging a costly legal fight against MNR reflects poorly on the Mayor’s ethics and decision-making. So too does the disregard for public input. The actions and attitudes of the Mayor and Council are emblematic of bad politics and bad governance. This is an issue for constituents and concerned members of the community to take on. The swift swell of outrage that transpired this past week shows that this issue is being taken up in earnest.

While it is one thing to have a track record of bad governance, it is an entirely different thing to lack a basis for governing in the first place. Both history and the present-day reality acknowledge that SON is the rightful authority over the portion of beach that is now at issue. The Mayor’s dogged determination to continue fighting SON over the recognition of its rights6 is not only costly, but also wrong, legally, politically, morally and ethically. This latest “road maintenance” project simply adds insult to the injury.

On November 27, the Mayor and Council held a special emergency meeting to discuss SON’s opposition. Minutes from the meeting were posted publicly on November 30.7 According to the minutes, the MOE “have not provided a permit but more a letter of advice as to what would make the work acceptable.” In fact, upon hearing from SON, the MOE has requested additional information. The Town’s response to this is “it would be nice to have permission. The MOE being explicit that this work will not happen in the spring”. The minutes go on to record the Town as saying, “We have done the public process and approvals, by doing this we are hoping we do not have to go in every year.

We are starting with a small section to see how it works and to see if it is going to be the proper thing to do.”

It is perplexing to see that the Town is on the one hand aware that they are undertaking this project without a permit from MOE, and yet on the other hand declare that they have the necessary approvals, while still admitting that they are unsure whether this is “the proper thing to do.”

It is clear that the Town has no interest in doing the proper thing, as they concluded the meeting with a motion to give SON until December 3 to respond before they go back to digging up the dunes.

It is time to put a stop to this Mayor’s impulsive bulldozer approach to planning, stewardship and maintain relationships with both the public and our First Nation Treaty partners. The only thing that has come of this approach in 5 years has been losing international acclaim, losing costly legal battles and public controversy.

It is time to start rebuilding trust and confidence in the governance of the Town and the stewardship of Sauble Beach. Most importantly, it is time to renew our treaty relationships and the terms of respectful coexistence which are the true foundation of this country, and every square inch of it, including the dunes.

If Mayor Jackson and the current Council is not up to the task, then it is well past time for them to go.

Kyra Brennan is a former Parking and By-Law Officer for the Town of South Bruce Peninsula with an educational background in environmental studies and public policy and experience working for the House of Commons.

Chris Albinati is a lawyer who specializes in the litigation of Indigenous rights and treaty claims and academically researches and writes about the implementation of Indigenous jurisdiction in the context of on the ground conflicts with settler governments.

1 Town Council Minutes, Nov 17, 2020, Item 36 at p 19
2 PW50-2020 at p 2, (emphasis added)
3 Grey Sauble Conservation Board of Director's Special Meeting - November 17th, 2020
4 The plight of endangered species in a hostile Ontario beach town
5 Sauble Beach has lost its Blue Flag eco-certificiation
6 Saugeen First Nation’s long fight to reclaim Sauble Beach
7 Town Council Minutes, November 27