Sauble Beach Land Claim Frequently Asked Questions

August 13, 2014

 Responses to Frequently Asked Questions Re: Land Claim  

Mediation

1. Has the mediator set a time frame for the parties to return to the table?

The mediator has not set a time line. That is currently in the hands of the Parties. 

2. Were both points of view brought to the table during the Mediation?

Yes 

Litigation

3. Are there any facts in support of the position that the Town owns the lands in question?

There are facts in support of both positions. Some are stronger than others. Some were speculative. When looking at the risks in a trial and the relative strength of the evidence regarding the Rankin documents, the settlement being proposed was considered to offer the Town the best prospect for continued public access and involvement in the operations of the beach.

4. Has the Town ever publicly or otherwise conceded ownership of the land?

The only context within which there has been any discussion of the First Nation owning the land has been within the context of discussion of the settlement proposal.

5. Is it true that the standard of proof in civil proceeding is the balance of probabilities?

The standard of proof in civil claims is the balance of probabilities. This means that if a trial judge is persuaded that it is more likely than not that the evidence is accurate, the Judge can accept that evidence. Therefore, in this case, if the Judge is convinced on the evidence that Sixth Street is more probably the northern limit of the Reserve, the Judge can make a finding on that basis. In the mediation, the Parties were of the view that there was a strong possibility that a trial Judge would make that finding. If the Judge did, then he would find the beach to be part of the Reserve and the Town would have no further part in its operation and no input with respect to continued public access. 

6. What impact will this have on the larger litigation (road allowances, etc.?

This settlement should have no impact on that litigation. 

7. How will agreeing to this proposal affect the other claims that are ongoing? Will the claim filed by the Government of Canada be rescinded?

This proposal will have no effect on other claims that are ongoing. If this proposal is agreed to. The claim by Canada against the Town would be dismissed since it is essentially the same claim. 

8. What is the estimate of $7 million dollars for litigation based on? How will these monies be raised?

The estimate given in the materials was $5 to $7 million. This was based on the fees incurred for similar litigation based on the likely length of a trial. It could be more or it could be less. Presumably, the monies would be raised as part of the municipal property taxes. 

9. Has there been any statement by the Courts that would lead one to believe that the First Nation Claim has justifiable merit?

There has been no statement by the Courts regarding the merits of this claim. However, there have been two mediations of this claim, one with a Justice of the Ontario Court of Appeal and one with a former Justice of the Supreme Court of Canada. Both appear to be of the view that the First Nation has a reasonably strong claim. 

Proposed Compensation  

10. What compensation is being offered to the First Nation?

The amount of compensation for loss of past use is a matter being discussed between Canada and the First Nation as well as Ontario. The Town has not been part of those discussions. The First Nation was not a party to any discussions between the Town, Canada and Ontario regarding the compensation proposal to be made to the Town 

11. Will the First Nation consider a payment option so that the Town can keep Sauble Beach?

The First Nation has been clear throughout that they are not prepared to sell or rent the beach. 

Ballantyne Report and Other Information

12. Was consideration was given to the Ballantyne Report?

The Ballantyne Report is an opinion that was prepared and submitted as part of the process some years ago. It was not specifically discussed or debated as part of the mediation process but all parties were aware of its opinions and it was taken into consideration by them in reaching their conclusions. 

13. Was the information presented by the Friends of Sauble Beach taken into consideration by the negotiating Committee?

All relevant information was considered. 

Proposed Joint Management Agreement  

14. Information about the Management Board.

The Board members would be appointed by the councils of both the First Nation and the Town.

The qualification to be a board member would be determined by the Town and the First Nation respectively. Presumably, they would be residents or property owners in the Town or on the Reserve. 

The time limit of a member on the Management Board would be determined by the Town and the First Nation, likely as part of the Terms of Reference. 

The question of removing a Board member would be covered in the Terms of Reference. 

The Terms of Reference would include the details of operation of the Board; e.g. - when it will meet, where it will meet and how it will conduct its meetings. 

The Terms of Reference would likely be drafted and approved after the agreement. 

15. Was there a different governance model (rather than 3/3) reviewed prior to bringing the potential agreement going forward?

There may have been discussion of different total numbers but the Board was always envisioned as equal representation. 

16. Can the language in the agreement be more specific in reference to fees and vehicle usage?

Yes. The language is still being worked on and finalized by all parties. 

17. Will the Endangered Species Act, the rules and regulations of the Government of Ontario and Canada, Municipal By-laws, Planning Act and Ontario Building Code apply to the lands?

If the lands were to become part of the Reserve, they would be governed under the Indian Act and other applicable laws for these matters. For example, there are federal laws that govern these various issues. 

18. Who will respond to emergency services, by-law infractions and infractions under the jurisdiction of the Police Board?

They will be overseen by the Management Board in a manner that is consistent with what is otherwise provided on the Reserve. 

19. What items were noted, if any, when the language included future uses not identified in the Agreement would be at the Band’s discretion?

The language does not refer to “future uses”, it refers to “any matters not herein expressly addressed or specifically delegated to the Board”. This is intended to mean that any matter not under the jurisdiction of the Management Board in the agreement will be under the jurisdiction of the First Nation. 

20. Is the agreement enforceable and what are the consequences if either party, at a future date, decides to ignore it?

The agreement will become part of a court order. If either party ignores it, a court can force compliance and possibly make the party pay damages and the costs incurred by the other party in enforcing the agreement. 

21. Will the beach be maintained at the same standards as the Town has and will the piping plover continue to be protected?

The Town will play an equal part in the management of the beach and will therefore have an equal say in the standard. The First Nations are also bound by endangered species laws which are at least as stringent as those the Town must follow. 

Public Input  

22. If the Town decides to support the agreement, will the formal document be brought to the public before it is officially signed?

This agreement, like any other agreement into which the Town enters into, would become a public document before it is signed. 

23. What is a reasonable timeframe for the public to make an informed decision?

The decision as to whether to accept or reject this proposal is not a decision that is made by the public. It is a decision that is made by the Town Council. The process being conducted now is to inform the public and allow them to provide comment and input. After that the Council will vote on the proposal. The question as to what is an appropriate timeframe is dependent upon how long Council feels they need to obtain comment before voting. The format used to obtain input is up to Council. It is important to note that this is not a referendum in which the public votes and votes are tallied. Normally in settling litigation, a municipality does not go through this type of public information and comment process. It is only as a result of the impact of this litigation that the Town is going through this process. 

24. Does the Town have the resources to mail the notice to all taxpayers?

That is a determination to made by the Town considering the amount of time and resources the Town wishes to devote to this. 

25. Was it an error in judgment to announce that there might be a second meeting in Sauble Beach?

The intention was to have one meeting unless absolutely necessary. A second meeting would have significantly reduced the amount of time available for public comments and questions. When it appeared that any overflow, which appeared to be minimal at the start of the first meeting, could be accommodated in Wiarton, the decision was made to only have the one meeting in Sauble Beach, and thereby provide a greater period of time for public questions and comment at the meeting. 

Possible Impact on Property Values / Property Transactions  

26. Is a decrease in property values likely?

There was some very general information from non-experts speculating about the effect on property values. There was no concrete information to support the suggestion that property values would decrease or increase as a result of a joint management arrangement with continued public access. The question of whether a property owner can expect a decrease in property taxes would depend how MPAC views the situation. 

27. Is there a legal reason why prospective property owners should have an expectation that they should have been informed of the potential land claim?

Any responsibility for informing prospective property owners of the potential land claim, would be with the party from whom they are purchasing the property and perhaps with the real estate agent. Often these cases are a matter of buyer beware and it is up to the purchaser and the purchaser’s lawyer to investigate this. 

28. Is there any data referring to decrease in property values when faced with a situation such as this?

There has been no such data produced which relates to a similar situation. Any data would be relative to the outcome. For example, would the effect on property values be greater if the Town lost the litigation, thereby having no say in operation and public access than it would be if the Town continued to be involved in the operation and public access was continued. 

29. If property values decrease, can a property owner expect a decrease in their taxes?

That would be determined by the processes controlled by MPAC taking into consideration the same factors relevant to any property assessment review.

Attachment RESPONSES TO FREQUENTLY ASKED QUESTIONS-Categorized

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