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Remedies. Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town)
In Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town) (Ont CA, 2024) the Ontario Court of Appeal considered an indigenous claim seeking damages and a declaration that "excluded coastline (the “Disputed Beach”) forms part of the Reserve, that no third parties have any interest in the Disputed Beach, and that the honour of the Crown and its fiduciary duties were breached by the wrongful demarcation of the Reserve boundaries".
Here the court broadly considers remedies, here in this indigenous context:[217] Remedies are necessarily prospective and purposive. A court cannot go back in time and change history to stop past injustices from having occurred. Rather, what a court can do is craft remedies that try, as best as possible in the circumstances, to undo the effects of past wrongs and prevent their perpetuation into the future.
[218] As Jamal J. explained in Restoule (SCC), at para. 277, quoting from Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 45, and from academic commentary by Kent Roach and by Peter Hogg and Laura Dougan (citations omitted):As with other constitutional rights, courts should take a purposive approach to determining the appropriate remedy for breaches of treaty obligations. As always, “[t]he controlling question ... is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake”. Restoring the honour of the Crown “requires the courts to be creative” within a principled legal framework and provide remedies that “forward the goal of reconciliation”.
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