This is a comment on the current state of the law regarding Aboriginal title to water spaces, a critical issue for many if not all First Nations in British Columbia, whose unceded territory includes ocean, lakes, and rivers. Relatively recent decisions in BC and Ontario have preserved the possibility of Aboriginal title to water spaces; however, the common law jurisprudence is old and dusty and there are cobwebs in the corners. Even as the Crown has committed to UNDRIP, the Vatican has repudiated the doctrine of discovery (two years ago now), and there’s growing recognition in the courts that the history underpinning section 35 jurisprudence is incorrect, we’re still stuck with old, racist colonial ideas. On the other hand, Canada’s history of legal pluralism and strands from the jurisprudence that recognize Indigenous sovereignty and the legally precarious nature of the Crown’s sovereignty and title to unceded Indigenous territory, mean there is a path forward, towards recognition of Aboriginal title over all unceded Indigenous territories, including water territories. Canada has title to dry land, lakebed, riverbed, and seabed. There’s no reasons Indigenous peoples cannot have Aboriginal title to the same.
The magic of Crown sovereignty
Nearly 26 years ago, John Borrows, commenting on the then-recent Delgamuukw decision from the Supreme Court of Canada, asked “[h]ow can lands possessed by Aboriginal peoples for centuries be undermined by another nation’s assertion of sovereignty? What alchemy transmutes the basis of Aboriginal possession into the golden bedrock of Crown title?”, noting the “ancient origin” of the way in which “[p]olitical and legal ascendancy are conveyed to those who can conjure fictions that vindicate their claims of authority” (Sovereignty’s Alchemy, pp. 558-559).
Recent title to water cases
Decades later, the Canadian law of Aboriginal title is still premised on ‘conjured fictions’, applied by judges even as some recognize, like Justice Kent in the Saik’uz trial decision: “the whole construct [of how the Crown asserted sovereignty] is simply a legal fiction to justify the de facto seizure and control of the land and resources formerly owned by the original inhabitants of what is now Canada” (Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15, para 198). Despite explicitly acknowledging the fictional underpinnings of Crown sovereignty over British Columbia and the legal doctrine of Aboriginal title, Kent J felt bound to apply that law. The case included a claim for Aboriginal title to water – specifically, to riverbed, certain portions of the Nechako and Stellaquo Rivers, and Fraser Lake. While Kent J did not dismiss that claim on its merits, he expressed significant doubt that Aboriginal title to submerged lands could ever be proven: “the conflict between the exclusivity of Aboriginal title and the primacy of the public right of navigation might still provide a potentially insurmountable barrier to a finding of Aboriginal title … this would appear to be the case for anyAboriginal title claim to the bed of a navigable waterway” (para 331).
Justice Kent based those comments on the reasons of Justice Matheson of the Ontario Superior Court of Justice, the trial judge in the largely unsuccessful claim by the Saugeen Ojibway Nation (“SON”) for Aboriginal title to part of Lake Huron and Georgian Bay (Saugeen First Nation v. The Attorney General of Canada, 2021 ONSC 4181). On appeal, the Ontario Court of Appeal carefully walked back any categorical or in-principle barrier to Aboriginal title to submerged lands, noting that [t]he common law has permitted private ownership of discrete areas of property on the seabed or lakebed of tidal waters or waters like the Great Lakes”, and further saying “[s]ome instances of Aboriginal title to submerged lands may have no practicable effect on the public right of navigation and may be entirely compatible with it” (that decision did not, however, definitively decide whether SON’s Aboriginal title was possible given the public right of navigation, instead sending the matter back to trial to determine if SON had established title to certain portions of the area claimed) (Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2023 ONCA 565, paras 93-94). Similarly, the British Columbia Court of Appeal, in the Saik’uz appeal, punted the issue of Aboriginal title to submerged lands for a later case (Thomas v. Rio Tinto Alcan Inc., 2024 BCCA 62, paras 322-335).
While the law has therefore currently pulled itself back from the brink of categorically denying the possibility of Aboriginal title to waters or submerged lands, which never made sense in the first place given that both private fee simple ownership and Crown title exist to submerged lands, the SON and Saik’uz cases reveal the tensions inherent in the state of Aboriginal title jurisprudence.
What is Aboriginal title anyway?
The conception of Aboriginal title as a sui generis “property” right sits uncomfortably with how the Supreme Court of Canada (“SCC”) understands section 35 of the Constitution Act, 1982, which is of course the provision that constitutionally protects Aboriginal rights, including title. Then-Chief Justice McLachlin, in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, called section 35 a “promise of rights recognition” which is “realized”, and “sovereignty claims reconciled through the process of honourable negotiation” (para 20, emphasis added). The bolded language implies that both the Crown and Indigenous peoples have competing sovereignty claims. Indeed, the Delgamuukw case was originally framed as a claim for ownership and jurisdiction over Wet’suwet’en and Gitxsan territories, in the absence of clear prior guidance from the SCC on Aboriginal title. By the time it reached Canada’s highest court, however, the parties were talking about “Aboriginal title”, and then-Chief Justice Lamer’s reasons, for the first time, elaborated on the nature of Aboriginal title. According to him, although Aboriginal title is sui generis (i.e., “of its own kind” – primarily because it is an interest in land that is unique to the common law – other interests like fee simple are “estates” in land that derive from the Crown’s underlying, or allodial, title – but the Indigenous interest arises from the “prior occupation” of the land by Indigenous peoples, before the Crown’s ‘alchemical transmutation’ of that prior occupation into Crown title), it is nonetheless a proprietary interest, distinct from fee simple but ultimately, it seems, analogous to it (the other leading SCC case on Aboriginal title, Tsilhqot’in Nation v. British Columbia, 2014 SCC 44explicitly drew on “ownership rights … associated with fee simple” to explain the incidents that come with Aboriginal title (para 73)).
As scholars have pointed out, Aboriginal title as a proprietary interest is a strange beast. Its strangest feature is the so-called “inherent limit”. In Delgamuukw, Lamer J said: “lands held pursuant to title cannot be used in a manner that is irreconcilable with the nature of the claimants’ attachment to those lands” (para 125). In a 2021 paper, “Why Is Aboriginal Title Property if It Looks Like Sovereignty?”, Doulgas Sanderson (Amo Binashii) and Amitpal C. Singh convincingly argue that the inherent limit makes more sense if Aboriginal title is a right of sovereignty (i.e. the right to make laws about the use of territory). They point out that a defining feature of property rights is precisely that they have no inherent restrictions – “[p]roperty is mine to do with as I please. If I own a book, I can give it away, or burn it, or sell it, or throw it off a cliff. I make the choices that I do without reference to anyone else…” (pp. 428-429). While restrictions on the use of property might be externally imposed (e.g. “[t]here may even be contractual or statutory restrictions on whether I can sell my book or give the book to someone else”), because those are external they don’t alter the internal inherent structure of property rights, which are what make those rights proprietary.
In contrast, sovereign rights have, like Aboriginal title, an internal norm or limitation: “sovereignty, in the form of the exercise of a public office, is constrained by reference to a public purpose”. Thus, “whereas the legitimacy of sovereign action requires reference to a public purpose, property is, at its fundamental level, not constrained in this way” (p. 433).
For a First Nation with Aboriginal title, however, Delgamuukw’s “inherent limit” precisely constrains them in a way that is fundamentally inconsistent with the nature of property interests. This tension, however, was ignored in the trial decisions of Saik’uz and Saugeen. That elision, moreover, gave rise to the conceptual tangle we see in those cases – especially in Saugeen. The reason is simple: if Aboriginal title appears to be a property interest with “incidents” like fee simple interests have, then it effectively is (collective) fee simple with special features, primarily features that limit the full exercise of control of title lands (Aboriginal title may be justifiably infringed by the Crown, for example). That means, however, that title, like other property interests, is fundamentally private, as opposed to public. It’s this conception that caused Matheson J in Saugeen such consternation:
[136] In this case, SON claims the right to exclude all other people from a large part of Lake Huron, including about half of Georgian Bay, right up to the international boundary. This right to exclude would apply not only to recreational use, but also to commercial uses and for national defence. Any limitation on Aboriginal title must satisfy the justification test under s. 35(1) of the Constitution Act, 1982.
The Saugeen reasons accordingly spend some time considering how “private” ownership of submerged land interacts, at common law, with the public right of navigation. Private ownership of water lots is subject to the right of the public to navigate on the water, but as conceived by Matheson J, Aboriginal title’s “exclusive” feature made it fundamentally inconsistent with that public right (e.g. paras 323-330). The court’s intuitive concern is precisely a concern about arbitrary, “private” ownership by a First Nation of an otherwise “public area” – Lake Huron. That concern was picked up by the province of Ontario on appeal, where it submitted “it holds sovereign ownership of the lakebed by way of a public trust, for the protection of public interests in navigation and fishing. It takes the position that the lakebed is Crown land underlying waters used for navigation and is therefore incompatible with Aboriginal title” (Chippewas ONCA, para 88, emphasis added) (note in the same paragraph, however, “Canada now says that it agrees that the public right of navigation can be reconciled with Aboriginal title”). In other words, the “sovereign” title of the Crown, held in the public interest, was put against an implicitly “private” Aboriginal title, somehow not held in the public interest.
We can see then, that the alleged potentially insurmountable conflict between a public right of navigation and Aboriginal title itself stems from a false opposition between Crown “sovereign” title and Aboriginal “[sui generis] private” title, an opposition which makes no sense if section 35’s purpose is, as Chief Justice McLachlin said in Haida, about reconciling sovereignty claims.
The Crown as a title claimant
The framing of both Crown and Indigenous assertions of sovereignty as “claims” is important; there’s an implicit recognition in that framing of the “legal fiction” underlying Crown title, which calls into question the core premise of Aboriginal title jurisprudence to date: that the Crown is sovereign and is the ultimate owner of all the lands (and waters) in Canada, with Indigenous interests being merely a “burden”. This premise derives from perhaps the mother of all Canadian (and US) legal fictions – the doctrine of discovery. The relatively early case of Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 SCR 335, cited by Tsilhqot’in as the “starting point in characterizing the legal nature of Aboriginal title” (para 69), drew from the infamous 19th Century US Supreme Court decision of Chief Justice Marshall, Johnson v M’Intosh, which relied on the purported principle that “discovery gave exclusive title to those who made it” to explain that, “the Indians’ rights in the land were obviously diminished; but their rights of occupancy and possession remained unaffected” (as cited in Guerin at p. 378). In fact, as scholars such as Kent McNeil have pointed out, Johnson v M’Intosh’s historical account of the doctrine of discovery is, to say the least, dubious: “[Lindsay] Robinson has shown how flimsy the authority really was for the doctrine of discovery, as formulated by Chief Justice Marshall. Much of the support for it was extracted from Marshall’s own much criticized work as a colonial historian in volume one of his Life of George Washington” (Kent McNeil, “The Doctrine of Discovery Reconsidered: Reflecting on Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies, by Robert J Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg, and Reconciling Sovereignties: Aboriginal Nations and Canada, by Felix Hoehn”, (link) p. 706).
In Canada, for most of the 20th Century, the leading case on Aboriginal title was, like Johnson v M’Intosh, a case with no Indigenous parties at all St. Catherine’s Milling and Lumber Company v. The Queen (1889), 14 App. Cas. 46, wherein the Privy Council described “the tenure of the Indians” as “a personal and usufructuary right, dependent upon the good will of the Sovereign” (p. 54 – and the “Sovereign” was most certainly not Indigenous). That began to change with Calder et al. v. Attorney-General of British Columbia, 1973 CanLII 4 (SCC), [1973] SCR 313 wherein Judson J wrote: “the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means” (p. 328). In concurring reasons in Delgamuukw, La Forest J consider Judson J’s description to be “[t]he best description of ‘aboriginal title’” and emphasized that Aboriginal title “is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts” (Delgamuukw, para 190).
Clearing the cobwebs
To return to that basic formulation of Aboriginal title, as arising from the fact Indigenous societies existed already and for a long time before European colonization, is to clear the conceptual cobwebs that have built up in the decades since Calder. The legal basis for Crown sovereignty and title really is magic – one day, the Crown was sovereign, because it said so. But First Nations were already sovereign here. Aboriginal title, and section 35 more generally, are about Indigenous sovereignty – not mere “private” interests.
Sometimes, our courts have recognized this, not only in a paragraph in the Haida decision, but notably in Mitchell v. M.N.R., 2001 SCC 33, wherein Binnie J’s concurring judgment approvingly referred to the Royal Commission on Aboriginal Peoples (emphasis added):
130 The final Report of the Royal Commission on Aboriginal Peoples, vol. 2, goes on to describe “shared” sovereignty at pp. 240-41 as follows:
Shared sovereignty, in our view, is a hallmark of the Canadian federation and a central feature of the three-cornered relations that link Aboriginal governments, provincial governments and the federal government. These governments are sovereign within their respective spheres and hold their powers by virtue of their constitutional status rather than by delegation. Nevertheless, many of their powers are shared in practice and may be exercised by more than one order of government.
On this view, to return to the nautical metaphor of the “two-row” wampum, “merged” sovereignty is envisaged as a single vessel (or ship of state) composed of the historic elements of wood, iron and canvas. The vessel’s components pull together as a harmonious whole, but the wood remains wood, the iron remains iron and the canvas remains canvas. Non-aboriginal leaders, including Sir Wilfrid Laurier, have used similar metaphors. It represents, in a phrase, partnership without assimilation.
While it’s true that Binnie J and the rest of the SCC in Mitchell denied the claimed Aboriginal right in that case, the idea that Indigenous peoples are sovereign partners within the Canadian federation is a legal historical conception that at least tries to honour the truth of this country’s history, which as Borrows (among others) have pointed out, is one of legal pluralism from the outset, as opposed to the history, implicitly accepted throughout much of the 20th Century and into the 21st, of European legal traditions effectively extinguishing Indigenous ones.
If Aboriginal title isn’t merely a private property interest, and what we’re talking about when we talk about title and section 35 is how Indigenous peoples’ sovereign rights can be realized, then we can see that the recent title to water spaces jurisprudence our of British Columbia and Ontario make much ado about nothing. Canada already has title in the territorial sea and asserts sovereign rights beyond that, into the exclusive economic zone, pursuant to international law. But the Crown’s claim to sovereignty and title over the Pacific Ocean on Canada’s west coast, or to the Great Lakes, or any other bodies of water in Canada, is based on discredited and racist, fictional legal constructs that even Canadian statutory law now recognizes as such. The federal United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 begins with a preamble, including (emphasis added):
…all doctrines, policies and practices based on or advocating the superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences, including the doctrines of discovery and terra nullius, are racist, scientifically false, legally invalid, morally condemnable and socially unjust…
Indeed, with both the federal and BC governments’ commitments to UNDRIP and incorporation of UNDRIP into law (as recognized by the SCC at para 4 of Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5), there is an opportunity for the common law to grow past its reliance on bad history and racist legal theories, and actually realize the “promise or rights recognition” in section 35. This necessarily must include Aboriginal title to water spaces. Long before the Crown magically gained sovereignty by saying so, First Nations on the west coast of what is now called British Columbia were travelling on, harvesting withing, and governing ocean territories. Just as most of BC’s land is unceded First Nations territory, so is BC’s water.
At the courts of appeal in both BC and Ontario, trial-level decisions casting major doubt on just the possibility of Aboriginal title to water spaces were rejected. That is progress, of a sort. But there is still a long way to go. The Nuchatlaht’s Aboriginal title case, which was only partially successful, included an argument made by the Nuchatlaht, apparently after the trial ended, during a supplemental hearing to determine if title could be made out to limited areas of Nootka Island, as follows (The Nuchatlaht v British Columbia, 2024 BCSC 628, emphasis added):
[31] This is another argument made for the first time at this hearing. In Tsilhqot’in at para. 69, the court held that the doctrine of terra nullius never applied to Canada. Therefore, the Nuchatlaht say, there can be no land on Nootka Island that is not subject to Aboriginal title. Given there are not overlapping claims, all I need do is to define the boundary between the Nuchatlaht and the Mowachaht.
[32] That is overly simplistic. The fact that there are no overlapping claims now does not mean that the complete claim area was sufficiently occupied by the Nuchatlaht in 1846. For example, Aqi is an area where Dr, Kennedy said she could not ascertain ownership in 1846. Once again, my task is to determine sufficient occupation in 1846, along with the other issues. On the current state of the law I do not think it open to me to accept the Nuchatlaht’s argument.
Though that was not a title to water case, Justice Myers’ words reiterate a double-standard regarding the competing “sovereignty claims” of the Crown and Indigenous peoples: Indigenous peoples who were here first must prove their title. The Crown, which wasn’t even really “here” in 1846 (Borrows points out that even by 1872, “aboriginal peoples outnumbered the settler population approximately 4:1 in the province, and more than 15:1 on the north coast” (Sovereignty’s Alchemy, p. 546)) need not prove its title and indeed, in the absence of proof of Indigenous title, the Crown has title.
Nonetheless, given the Crown’s commitment to UNDRIP and the way in which appellate courts have been careful not to preclude the possibility of Aboriginal title to water, there remains room in the common law for reconciliation of “claims” to water territories. We should bear in mind always that if these are going to be characterized as claims, then it’s only consistent that the Crown’s interests in water spaces are also claims.
Ruben Tillman