Since I know the facts I would be remiss if I did not express some gratitude towards former mayors Roy Avis, Dan Onichuk and Glenn Witherspoon and their councils for having provided the foresight and directions that were instrumental in achieving recent Superior Court of Ontario decisions regarding Agency No. 1 land.
Recently there has been much discussion about costs and legal fees associated with the town maintaining its sole interest in a portion of Agency No. 1 land.
Ontario Superior Court of Justice decisions have put that at rest.
A major decision regarding costs has to do with a court challenge made by the four Agency No. 1 bands against the “Two Chain Road Allowance” (132 ft.) around Agency No. 1 waterfront from the overpass to the cemetery and church site, which they claimed ownership of.
This challenge was defended by Canada, Ontario and the Town of Fort Frances and was heard over a 20-day period in 2013.
The challenge was dismissed as well as subsequent appeal. It was only on Aug. 24, 2018 that the Ontario Superior Court of Justice awarded the Town of Fort Frances, costs associated with defending the challenge of the four Agency bands.
The town was awarded $1,396,296.00 in costs, which was to be paid in 90 days, i.e. November 2018.
Has the town received the nearly $1.4 million from the four bands?
A further Ontario Superior Court of Justice decision was handed down on Dec. 18,2018. This was a challenge by the four Agency No. 1 bands regarding ownership of the “roads” in the Agency i.e. Mill Road, Hwy. 11, Idylwild Drive and Park Road. Canada, Ontario and the Town of Fort Frances defended the challenge.
It was found that the roads were legally vested in the Town of Fort Frances. Costs to be awarded to the town have yet to be determined.
A most important Ontario Superior Court of Justice decision was also handed down on Dec. 28, 2018. The four Agency No. 1 bands had challenged the “Surrender for Sale” dated Oct. 1, 1908 of Agency No. 1. Canada, Ontario and the Town of Fort Frances defended the challenge.
It was found by the court that the “Surrender for Sale” dated Oct. 1, 1908 to be binding on the plaintiffs (the four bands). Costs to be awarded to the town have yet to be determined.
What's important now is the transfer of ownership of the proper portion of Agency No. 1 land to the town for its park. After all it was a decision by Canada and Ontario, that the town should have its park on these lands.
It was the Ontario Order-in-Council of Sept. 4, 1908 that prompted Canada taking the “surrender" under the provisions of the Indian Act. It was Ontario's use of "grant" land that has prompted the Ontario panel holding session on April 24, 2018 at La Place Rendez-Vous to say that "grant" does not really mean "give land.”
I suggest checking documents of title given to the first buyers of the lots on Idylwild Drive. There on the front of the document it states, “Grant from the Government of Canada.”
There is on record a 1986 land agreement between Canada and Ontario where all Indian land surrendered for sale before 1924 and not yet sold becomes vested in Ontario. Therefore Canada no longer holds title or has a fiduciary responsibility to the portion surrendered.
Since the land was surrendered for sale in 1908 and Ontario's Order-in-Council was in 1908 and Ontario has the sole authority over the surrendered portion, then get on with the job of “granting” the 60 acres for the park to the Town of Fort Frances.
Edward “Ted” Berry
Former District Superintendent
Land, Revenues & Trusts
Indian and Inuit Affairs
Fort France Disctrict