The Ontario Court of Appeal is hearing the appeal of the Saugeen First Nation and Chippewas of Nawash Unceded First Nation (collectively, the Saugeen Ojibway Nation or “SON”), which continues into its second week this week. However, in court last week, counsel for Canada announced that Canada has reversed its position and now agrees that aboriginal title to lands beneath navigable waters is cognizable at law.
SON has a treaty claim and an aboriginal title claim. At trial (Saugeen First Nation v. The Attorney General of Canada, 2021 ONSC 4181), the Ontario Superior Court of Justice found that the Crown breached the honour of the Crown in relation to Treaty 45 1/2 and the Crown’s promise to protect SON territory from encroachment by white settlers, but dismissed the claim for aboriginal title. SON claims aboriginal title to submerged lands beneath part of Lake Huron and Georgian Bay. Among other things, the trial judge found a “fundamental inconsistency” between aboriginal title to submerged lands, which is “exclusive”, and the public right of navigation.
On appeal, we represented the intervener, Heiltsuk Nation. Haida Nation, Songhees and Esquimalt First Nations, and Walpole Island First Nation are also interveners. Heiltsuk and Haida, who both assert aboriginal title to submerged lands beneath navigable waters, submitted that it is possible to reconcile any tension between aboriginal title and the public right of navigation.
We previously blogged about this issue in relation to the Saik’uz case (Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15), which relied on the SON trial decision to say “there may be no path to Aboriginal title to submerged lands beneath navigable waterways”. Our submissions to the Ontario Court of Appeal were: first, that courts must consider a diversity of aboriginal perspectives when developing the test for aboriginal title (and analyzing the concept of “exclusivity” incident to aboriginal title); second, that Heiltsuk’s laws (Ǧviḷ̓ás) allowed for both exclusive ownership of submerged lands by theHím̓ás (hereditary chiefs) and public navigation through Heiltsuk waters; and third, that the common law also recognizes “exclusive” ownership of submerged lands, subject to the public right of navigation, and therefore Ǧviḷ̓ás was cognizable at common law when the Crown asserted sovereignty. In short, there is no “fundamental inconsistency” between aboriginal title to submerged lands and the public right of navigation.
It appears that the collective efforts of SON and the interveners may already have had an effect: in court last week, counsel for Canada announced to the court that Canada has changed its position: Canada now accepts that aboriginal title to lands beneath navigable waters is reconcilable. This is a significant change that may have far-reaching implications, especially for coastal First Nations in BC who are dealing with Canada over their own title claims.
The appeal is not over, but it is heartening that Canada now accepts that navigation and aboriginal title may be reconciled. Reconciliation is the grand purpose of section 35 of the Constitution Act, 1982, and both courts and Crown governments, instead of finding barriers to aboriginal rights and title claims based on conceptual difficulties, must allow for space for aboriginal title and governance rights.
The BC Court of Appeal is hearing the Saik’uz appeal next month. Heiltsuk, Haida and SON are intervening in that case too. We hope that both the BC and Ontario courts will reject the inflexible approach of their respective trial decisions, and adopt a position in keeping with reconciliation and respect for aboriginal rights.
Rachel Ariss and Ruben Tillman appeared at the Ontario Court of Appeal for Heiltsuk’s intervention. Listen to their conversation below on our latest podcast!
Ruben Tillman and Rachel Ariss