Tuesday, August 4, 2015

‘Two-chain’ ruling favours town

An Ontario Superior Court of Justice ruling last week has stated the Town of Fort Frances owns the strip of land—two “chains” in width (i.e., 132 feet)—along the shore of Rainy Lake from just before the Ranier bridge to the Nanicost building, extending along Couchiching First Nation.
Justice J.S. Fregeau passed down the decision last Wednesday, dismissing the claim from the plaintiffs—Couchiching, Naicatchewenin, Nigigoonsiminikaaning (formerly Nicickousemencaning), and Mitaanjigamiing (formerly Stanjikoming)—that the lands referred to in the two-chain allowance form part of the Agency One Reserve.

He also dismissed the plaintiffs’ claim for a declaration that any portion of the two-chain strip included in the Oct. 1, 1908 surrender of part of the Agency One Reserve was within this reserve prior to the surrender.
As to what this means going forward remains to be seen.
Fort Frances Mayor Roy Avis, who was on his way out of town for a conference last Thursday morning, said the town would defer comment until after council could meet with its solicitor and get more information.
The Times also contacted the Couchiching band office for comment but received no reply as of press time today.
The plaintiffs have 30 days from the Feb. 19 decision to file an appeal.
But Justice Fregeau’s ruling does mean the town now has no doubt about its ability to provide a beachfront space for the public—and perhaps even make it a tourist attraction.
The ruling also confirmed that Idylwild Drive residents, who intervened in the case, are living on town land.
As well, it could have a major impact on future decisions regarding related lawsuits.
The “Point two-chain” matter, which commenced in 1998, in fact is one of five lawsuits before the court involving the Point Park, road allowances in and in the vicinity of the park, and the waterfront lands surrounding (and in the vicinity of) the park.
These other lawsuits include a claim by Couchiching FN for the ownership of a further two-chain strip of land along the shore of Rainy Lake, north of the Point two-chain.
This “Couchiching two-chain” spans from where the “Point two-chain” leaves off, going as far as the Five-Mile Dock.
The defendants are Canada, Ontario, and the Town of Fort Frances.
Another claim by the four plaintiffs is for damages in the sum of more than $300 million for the breach of fiduciary duty of Canada and Ontario rising out of the 1908 surrender for sale of any interest the plaintiffs may have had in certain lands of which the park is a part.
This claim also is seeking damages—in the sum of $100 million—from Canada for breach of fiduciary duty for reducing the size of the reserve (Agency lands) of which the 1908 surrendered lands were a part of.
Furthermore, this claim is asking for damages in the sum of $20 million from Canada for breach of fiduciary duty by failure to collect rents for certain lands.
This claim also is asking for a declaration from all defendants that the plaintiffs are entitled to the return of most of the 1908 surrendered lands, including roads and allowances for roads which constitute the only access to privately-owned businesses and residential properties located on Idylwild Drive, within the 1908 surrendered lands (these lots were sold to the public by the federal government following the 1908 surrender).
A third claim by Couchiching is that a portion of Highway 11, which runs through a part of the town/Couchiching reserve to the shore of Rainy Lake, is the property of Couchiching.
The defendants are Canada and Ontario.
And a fourth claim by Couchiching is for damages from Canada for the flooding of land and destruction of property resulting from that highway.
Justice Fregeau’s “Point two-chain” ruling last week could impact these other lawsuits.
For example, in the damages case mentioned above, the land referred to in this case no longer will include the “Point two-chain” area, so the value of land will be lower.
The “Point two-chain” decision also may prove to be a step closer to a resolution to all the litigation—providing an impetus for the parties to settle other suits out of court.
Dispute history
The background to all of this litigation stems back to 1873, when the federal government and First Nations entered into Treaty #3, by which the First Nations gave up their interest in the Point Park and other land in return for, among other things, reserve lands being set aside for them.
In 1902, the Supreme Court of Canada decided that because all land in Ontario belongs to the province and not the federal government, land for reserves could not be set aside in Ontario without the agreement of the provincial government.
Ontario never agreed that the Point Park lands be set aside as reserve land for the First Nations. Rather, in 1908, Ontario consented—by Order in Council—that the Point Park lands be granted to the town for a park.
Canada agreed to this and that year, Canada obtained surrender of the Point Park lands to that end.
In August, 1908, Frank Cochrane, then Ontario minister of Lands, Forests and Mines, said what was to happen with the Point Park land in a letter to then Fort Frances Mayor Williams.
In that letter, Cochrane said he would “. . . now have the matter attended to as far as Pither’s Point is concerned. I’m putting in a provision that it may be given to the Town of Fort Frances for park purposes only.”
But instead of granting the park to the town outright, Canada demanded a lease arrangement—contrary to the promise of Cochrane.
This lease expired in 2008 but the 1908 Order in Council remains.
The town was unable to reach an agreement with all parties, and as it publicly has stated in the past, “went to court to bring out the facts, clarify, and protect the interest of the public in the Point Park.”
In April, 2010, Ontario Superior Court judge Justice J.F. McCartney granted the town’s motion that the Point Park continue as before—in the possession of the town—pending the outcome of the case which finally will decide the matter of who has the rights to the park.
With the “Point two-chain” case, the town’s point-of-view is that when Canada wanted Ontario to agree to a reserve at the Point, it described this reserve as including the land where the park is now.
It came with the added condition that “two chains in depth along the shore of Rainy Lake and bank of Rainy River . . . be reserved for roads, right-of-way to lumbermen, booms, wharves, and other public purposes.”
In the Ontario-Minnesota case of 1924, the court considered this wording and decided the two-chain strip of land was not included in any reserve.
Under the Municipal Act, all roads within town boundaries generally are owned and maintained by the town.
Since the description of the then-proposed reserve states that the two-chain is reserved for a road, and the fact the old road to the mill on Couchiching used to run along the shore, the town has remained firm that it owns the two-chain, just like any other road or road allowance in town limits.
In 1998, however, the four First Nations issued a claim in Superior Court contending that the Ontario-Minnesota case was wrongly decided as far as the two-chain is concerned and should be overturned.
One of several arguments put forth was that Canada, which prosecuted the case on behalf of the First Nations, failed to bring before the court at trial the relevant evidence concerning the Point two-chain, and so the 1874 agreement between the plaintiffs and the Crown concerning the location of the Agency reserve was wrongly construed.
Another key argument was that the boundary of the Agency reserve goes down to the water’s edge, and that the Point two-chain is not an exception but a reservation within the reserve which simply created easements for certain public purposes.
But last week, Justice Fregeau dismissed the plaintiffs’ claims, finding that: “The two-chain allowance adjacent to the Agency One Reserve was land surrendered to the Crown by the Ojibway in 1873 pursuant to the terms of Treaty #3.”
“I have found that this land did not form part of the Agency One Reserve when that reserve was set aside and surveyed in 1874/1875,” he wrote.
“I have also found that it was not intended that the two-chain allowance be included in the Agency One Reserve,” Justice Fregeau added.
The “two-chain” hearing was held last Feb. 19-March 28 at the Fort Frances Courthouse.

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