The province’s top court has upheld a lower court’s ruling that a strip of Sauble Beach, a popular Ontario tourist spot, has always belonged to a local First Nation.

In a 121-page decision on Monday, the Ontario Court of Appeal dismissed appeals brought by the Municipality of South Bruce Peninsula, the Ontario government, and several local families to the April 2023 ruling by Superior Court Justice Susan Vella.

In her 2023 decision, Vella ruled that “Chi-Cmiinh,” a roughly two-kilometre strip of beach at the northern end of Saugeen Reserve No. 29, had always belonged to Chippewas of Saugeen First Nation, and that the federal government breached its treaty rights.

“No third parties have any interest in Chi-Gmiinh, also known as the reserve portion of Sauble Beach,” Vella wrote.

The Crown, Vella wrote, failed to protect and preserve the treaty it signed in 1854, Treaty 72, in which the First Nation and neighbouring Chippewas of Nawash surrendered Saugeen Peninsula, excluding five reserve territories. One would become Reserve No. 29.

In 1856, the Crown surveyed the land improperly, Vella ruled. As a result, roughly 2.2 kilometres of land promised under the treaty was removed from the reserve. Today, the land covers an area west of Lakeshore Boulevard from Main Street and 7th Street North.

She also determined that, upon Confederation in 1867, the federal government assumed the Imperial Crown’s liabilities when it came to the protection and preservation of reserve lands.

The town, province, and landowners appealed, asking the judgment be set aside and the First Nation’s action against them be dismissed. 

Officials with South Bruce Peninsula said they were disappointed by the decision, but “respect the judicial process and remain committed to acting in the best interests of our community.”

“A thorough review of the decision will be conducted, and Council will convene to discuss its implications and determine the appropriate next steps in the coming days,” a statement from the town reads.

CBC News contacted Saugeen and the province for comment, but did not receive a response by publication.

The province’s appeal centred around the interpretation of Treaty 72, including that Vella made “factual errors” assessing the historical and cultural context relevant to its interpretation, the Court of Appeal ruling says.

The appeal brought by South Bruce Peninsula and the families argued Vella erred by granting judgment on an “unpleaded theory” that would move the eastern boundary further east, impacting landowners who weren’t involved in the litigation.

Both appeals were dismissed.

The families also argued Vella erred in ruling they couldn’t use the “bona fide purchaser” defence because they inherited their properties rather than purchased them. The appeal court agreed, but saw no basis for challenging her discretion to not apply the defence.

The appeal court also dismissed Bruce Peninsula’s leave to appeal on legal costs. Bruce Peninsula argued the costs should be borne by Canada, “as it alone was responsible” for identifying the reserve’s boundary, the survey, and Crown patents.

The federal government conceded at trial that it breached its fiduciary duty to Saugeen, and bore some responsibly for the breach of fiduciary duty committed by the pre-Confederation Crown. However, it rejected that it engaged in dishonourable conduct.

Vella ruled 100 per cent of the liability fell on Canada, with none falling to Ontario. The Court of Appeal said it would allow a cross-appeal by the federal government, who argued such a determination should have been made at a later phase of the trial meant to address any outstanding issues.

In May, Vella ordered Bruce Peninsula to fork over $1.67 million in legal fees to the First Nation, and ordered the province to pay $1.28 million, and the federal government $322,000. The town was also ordered to pay 50 per cent of the federal government’s $486,784 legal costs.

The town appealed the award, and cost submissions were paused as was dealt with.

The appeal court says if a cost agreement cannot be reached, each may make submissions. The town and federal government would have 15 days, and the province and families 30 days.