Testing the waters on Aboriginal title to lakebeds

8 minute read
26 August 2021

In Chippewas of Saugeen First Nation et al v The Attorney General of Canada et al[1], Justice Matheson of the Ontario Superior Court provides important guidance on how an Aboriginal title claim to submerged land (lakebeds) could be advanced. Although the plaintiffs here were ultimately unsuccessful in their novel title claim, Justice Matheson left the door open to such claims to submerged lands, and provided instructive comments on how to bring them forward successfully.

In this article, we provide an overview of the novel Aboriginal title claim brought forward in this case to the lakebed of Lake Huron, and highlight some key implications of this important decision.

A novel title claim

In this case, the Chippewas of Nawash Unceded First Nation and the Saugeen First Nation (together, the Saugeen Ojibway Nation or "SON") claimed Aboriginal title to large portions of the lakebed of Lake Huron (the "Claim Area").[2] SON sought exclusive use and control of the Claim Area, including control over the use of the water and ownership of the contents of the water and submerged lands (such as fish and minerals).

The Claim Area surrounds the Saugeen (Bruce) Peninsula, which falls within both Nations' traditional territories, and extends to the Canada-US border, to the west and halfway into Georgian Bay to the east. SON holds an established treaty right to fish on both sides of the Peninsula.[3]

Illustration of Claim Area

This is the first time a claim to Aboriginal title in submerged land, such as lakebeds, has been tested by a court, and it brings into focus areas of conflict between Aboriginal title in such lands with the public right of navigation.

The Court's decision: The Claim Area extends beyond SON's historical occupation

Justice Matheson tested SON's claim both as a novel Aboriginal right to title in submerged lands and through the existing Tsilhqot'in[4] test for Aboriginal title to dry land. In both cases, she found that the evidence supported an Aboriginal right to fishing and a connection to the Peninsula, but not to the lakebed comprising the Claim Area.

Connection to the Claim Area must be of central significance to the Nation's distinctive culture

In reaching her decision, Justice Matheson noted that a historical practice on identified land does not itself lead to Aboriginal title. For title, an Indigenous group's connection with the land must be of central significance to their distinctive culture.[5]  SON relied on its spiritual connection with water generally and the importance of fishing to advance its claim. Justice Matheson, however, found that these connections were to the water itself or locations on or near the Peninsula, not to the submerged land claimed. In dong so, she considered the nature and scope of the claimed right, its potential impact on the public right of navigation, and the significance of the in-water boundaries.

Justice Matheson held that the geographic location of the Claim Area required a nexus with the historical practice relied upon by SON. Here, that requirement was not met, as the Claim Area's boundaries were based on the Canada-US border and modern agreements with other First Nations.

Moreover, the location and nature of the Claim Area conflicted with the common law, under which navigable waters are subject to the public right of navigation. Justice Matheson noted that the Supreme Court of Canada has established this right as paramount to any rights held by owners of a lake or river bed.[6]

Applying the Tsilhqot'in test for Aboriginal Title

Justice Matheson also found that SON did not meet the Tsilhqot'in test for establishing Aboriginal title, despite evidence of its historic presence on the Peninsula. To prove a claim to Aboriginal title in accordance with the Supreme Court of Canada's guidance in Tsilhqot'in, SON needed to demonstrate sufficient and exclusive occupation of the claim area at time of assertion to sovereignty.[7]

Where present occupation of the claimed area is relied upon as proof of occupation in 1763, there must be continuity between present and historic occupation. In this case, Justice Matheson found that SON did not put forward activities that took place on or in the water, other than fishing, limited travel, and limited use for ceremonies. She also found that evidence of SON's spiritual connection to water, while important, was (i) broad and unconnected to the Claim Area; and (ii) did not require physical occupation of the Claim Area.

Nochemowenaing: a ripple of hope

Despite SON's failure to establish title to the Claim Area, it did lead evidence on a site called Nochemowenaing that demonstrated a strong spiritual and physical connection. However, Justice Matheson did not rule on title to Nochemowenaing since SON neither sought title to the site specifically nor defined the area in evidence. Instead, she suggested that advancing a title claim to a precise location may provide better a better outcome for SON.

Key takeaways

With Justice Matheson leaving space for future claims related to Aboriginal title to submerged lands, such as lakebeds, Indigenous groups and Nations should consider the following points in advancing such rights:

  • The geography must match the evidence. Claims for Aboriginal title to submerged land must be grounded in historical use and occupation in a precisely defined area.
  • A connection to the water and submerged land is important. The use of water for fishing, occasional travel, or ceremony is not sufficient to ground a claim in Aboriginal title. The connection must be to the submerged land and water in the claimed area itself.
  • The occupation of the claim area must be physical. Ceremonies or beliefs relating to water generally do not satisfy the occupation requirement of the test for Aboriginal title.
  • Public access to navigation is paramount. The control—or ability or exclude—component of Aboriginal title may be inconsistent with existing public uses of water, particularly in large, well-travelled bodies such as the Great Lakes.

Next steps

We expect that more case law will develop as a result of this decision, and we will monitor the evolving jurisprudence on Aboriginal title to submerged land. Please contact us if you wish to explore advancing a similar claim or require assistance in understanding the implications of this decision on your interests and/or projects.

[1] 2021 ONSC 4181.

[2] SON also brought claims in relation to Treaty 45½ and Treaty 72. SON was successful in proving that the Crown had breached its promise to protect the Peninsula from encroachment under Treaty 45½, thereby breaching the honour of the Crown. SON was further successful in demonstrating that the honour of the Crown had been breached in negotiations leading up to Treaty 72, and in obtaining a declaration that Treaty 72 had no impact on SON traditional harvesting rights except where the surrendered land had been put to an incompatible use. SON's claim that fiduciary duties arose from Treaty 45½ was unsuccessful.

[3] R v Jones (1993), 14 OR (3d) 421 (Prov Ct).

[4] 2014 SCC 44.

[5] Delgamuukw v British Columbia, [1997] 3 SCR 1010.

[6] See Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3

[7] In this case, 1763.

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