The Saugeen Ojibway Nation Environment Office has asked South Bruce Peninsula to halt its parking improvement work along Lakeshore Boulevard in Sauble Beach until the municipality receives consent from Saugeen First Nation.
South Bruce Peninsula is preparing to cut back encroaching sand dunes and install a concrete-block retaining wall along Lakeshore Boulevard from the Crowd Inn to Kinloss Lane – a distance of about 469 metres.
The town has received approvals for the project from both the Grey Sauble Conservation Authority (GSCA) and the Ministry of the Environment, Conservation and Parks.
At a Nov. 17 meeting, South Bruce Peninsula council approved the purchase of decorative concrete retaining wall blocks for roughly $79,000 and directed staff to hire a landscaping company for $57,000.
The total cost of the project is estimated at $150,000.
A staff report suggested the landscaping company hired to do the work, Bluewater Landscaping and Construction, could complete the job in 15 days. And there is an impending deadline, the staff report made clear, as work becomes much more difficult once the snow moves in and the soil freezes.
The staff report goes on to say there won’t be enough of a construction season in the spring between when the ground thaws and the plovers begin to nest in the surrounding area, which is followed by peak tourism season.
On Nov. 24, SON Environment Office Acting Manager Kathleen Ryan wrote an open letter addressed to South Bruce Peninsula director of public works Lara Widdifield. The letter was published online on the SON website. In the letter, Ryan said, “all plans to proceed with the proposed work must stop until the Town has fulfilled its obligation to consult with and obtain consent from Saugeen First Nation”.
“Based on the information provided in the November 17 Town Council Report, we do not believe that any consideration has been made regarding the proposed works and the Town’s obligations to consult Saugeen First Nation in regards activities occurring on Saugeen First Nation’s land, to consult Saugeen Ojibway Nation regarding SON’s Aboriginal and treaty rights in SON Territory or the potential environmental impacts to the sand dune ecosystem and sensitive species,” the letter reads.
Ryan said that the location of the proposed work “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 has 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'”.
Town of South Bruce Peninsula Mayor Janice Jackson said she was surprised by the letter, and that the town has always maintained its roads without needing to consult anyone.
“We have a deed to that land, and until a judge says that we don’t own it we have a duty to continue to maintain it,” Jackson said.
An ongoing boundary dispute is before the courts.
Jackson said the town has consulted with SON on larger municipal projects, which included environmental assessments, such as the Colpoy’s Pier reconstruction and the Town’s sewage treatment plant.
However, Jackson said the town didn’t even think to consult SON this time because of the relatively small scale of the project.
“It’s cutting two to six feet into the backside of a 60-foot sand dune . . . and the back part of the dune is not plover habitat,” Jackson said.
A South Bruce Peninsula staff report detailed that for years the migration of the Sauble Beach sand dunes due to wind and water action has slowly been encroaching upon the beachfront parking along Lakeshore Boulevard. Wooden bollards installed by the Friends of Sauble approximately 30 years ago have become almost completely covered with sand, the staff report said.
Jackson said the encroaching sand dunes have created a critical safety hazard as large vehicles now spill into the roadway when parked, and there is no longer any shoulder space for pedestrians walking to the beach access points.
“We see it time and time again. Excited children jump out of their cars and they run around to the back to get their toys out of the truck and we just cringe,” Jackson said. “Anybody who has witnessed what goes on at the lakeshore knows it’s just a matter of time before we have a serious accident.”
The SON Environment Office asked that the town provide to SON copies of all proposals or applications submitted to GSCA and MECP regarding the proposed works and that they include SON in future submissions of additional materials. SON has also asked for both the GSCA and MECP to provide SON with any written reviews, comments, or conditional approvals provided to the Town.
Jackson said some of those documents were turned over Thursday, and town public works staff have now met with SON environment office staff.
On Friday, the Town of South Bruce Peninsula held an emergency council meeting to discuss the next steps in light of the SON letter. At that meeting, South Bruce Peninsula council chose to move forward with the parking improvement work “due to critical safety issues”.
“We all agreed to delay it by a week allowing time to consult with the SON and see if we can come to some form of understanding,” Jackson said in an e-mail Saturday. Jackson said the work will begin Dec. 4.
In its letter, the SON Environment Office said the town had an obligation to consult with the Saugeen First Nation on the project. SON also said in its letter that no alternative solutions to the parking congestion issue have been proposed or considered by the Town and that environmental impacts have not been properly scoped, assessed or mitigated.
In Canada, the Crown has an obligation to consult with and accommodate concerns from rights-bearing Indigenous communities. The duty to consult is triggered when Crown conduct or decision has the potential to adversely impact the rights of Indigenous peoples when the Crown has knowledge of existing or potential Aboriginal and treaty rights.
However, there is no Canada-wide or Ontario-specific legislation or judicial ruling confirming that municipal governments are independently responsible for the Crown’s duty to consult.
Other provinces have ruled against a municipal duty to consult, arguing that it is unreasonable to expect municipal governments as non-Crown corporate entities with limited authority, capacity and resources to fulfill the constitutional Duty in the same manner as a Crown, according to the Association of Municipalities of Ontario (AMO).
In 2019, AMO argued that a lack of knowledge and information on Indigenous claims and a lack of financial resources and capacity prevent municipal governments from assuming the Crown’s duty to consult.
“AMO continues to request a deeper discussion between municipal governments, the Crown and rights-bearing Indigenous communities to determine how the Crown’s Duty to Consult can be pragmatically and thoughtfully implemented. Any Duty to Consult process involving a municipal government needs to recognize municipal capacity and resource constraints along with the Crown’s ultimate responsibility for fulfilling the Duty” read a 2019 AMO report titled Municipal Governments and the Crown’s Duty to Consult.
Attempts to reach Saugeen Ojibway Nation Environment Office acting manager Kathleen Ryan on Thursday and Friday were unsuccessful.