In Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15, the Supreme Court of BC addressed, but did not decide, a dispute about aboriginal title over riverbeds of navigable rivers, and specifically, whether exclusive use and possession is compatible with a public right of navigation. Justice Kent commented that the public right of navigation “might still provide a potentially unsurmountable barrier to a finding of Aboriginal title in this case. In fact, on the face of it, this would appear to be the case for any Aboriginal title claim to the bed of a navigable waterway.” While the court did not decide the issue, the court’s comments about the “problem” of navigation for aboriginal title over submerged lands may extend to aboriginal title to ocean seabed and foreshore. Yet the idea of some “insurmountable” conflict (as portrayed by the Crown) between aboriginal title over submerged lands and a public right of navigation faces several significant problems – problems that the court did not address.
Notably, the following problems exist apart from any potential impact of UNDRIP (the United Nations Declaration on the Rights of Indigenous Peoples) on provincial and federal laws, pursuant to the BC Declaration Act (SBC 2019, c 44) and the Federal Declaration Act (SC 2021, c 14).
FIRST: The proper question appears to be not whether aboriginal title over submerged land can exist, but whether or to what extent already-existing aboriginal titles over submerged land were, or were not, overridden by the subsequent introduction of English common law into BC, including the public right of navigation. The timing of historical events, as summarized in Saik’uz (at para. 172), makes clear that the Crown asserted sovereignty over New Caledonia (now BC) in 1846, upon its signing the Oregon Boundary Treaty. Aboriginal titles, including titles over submerged lands, arose at that time. But English civil law – including English common law, and by extension, the public right of navigation – did not apply to British Columbia until 1858. Accordingly, aboriginal titles over submerged lands existed without any concurrent public right of navigation for a period of about twelve years. The question of the effect of the colony adopting English law in November 1858, and whether (or to what extent) any public right of navigation did (or did not) override already-existing rights of exclusive use and occupation, is a different and more nuanced question than whether aboriginal title over submerged lands is possible.
SECOND: Any underlying proposition that aboriginal title over submerged lands cannot override the public right of navigation is open to dispute. The question of whether a court must interpret a Crown grant of an interest in submerged land is subject to a public right of navigation is different from the question of whether aboriginal title –not an interest “granted” by the Crown at all –extends to submerged lands in any given case, based on a First Nation’s pre-sovereignty exclusive possession of an area pursuant to its own Indigenous legal order. As noted by the Privy Council in 1921, “A mere change in sovereignty is not to be presumed as meant to disturb rights of private owners….” Further, the common law not only recognizes laws that existed before the introduction of the common law as “customary” laws, but also recognizes that the common law is superseded by any proven customary law, rather than the other way around.
THIRD: Even if courts should determine that the a right of navigation must, in any given context, override a right to exclusive use and possession, nothing about a right of navigation conflicts with exclusivity with respect to other activities. English common law clearly recognizes, in the context of private grants of submerged lands in England (e.g., grants of river foreshore and riverbed) that other aspects of exclusivity may co-exist with navigation. In one notable case in 1908, for example, a court concluded, with respect to privately owned foreshore, that a right of navigation (when the tide was in) did not entitle anyone to trespass on the foreshore for purposes unrelated to fishing or navigation, such as to shoot birds: “…the right of navigation by virtue of which he justifies his boating over the channel and foreshore when covered by water is, I think, analogous to a right of way or passage, and can only be used for those purposes for which it exists….” In other words, a right of navigation does not nullify exclusive possession with respect to activities unrelated to travel. Similarly, with respect to a grant of land below the low-water mark of a navigable river, the House of Lords held in 1865 that, “If the Crown, therefore, grants part of the bed or soil of an estuary or navigable river, the grantee takes subject to the public right [of navigation]; and he cannot in respect of his ownership of the soil make any claim or demand, even if it be expressly granted to him, which in any way interferes with the enjoyment of the public right.”
Accordingly, apart from UNDRIP, and presuming that the adoption of English civil law in BC led to a right of navigation overriding exclusivity to some degree, the common law concept of “exclusivity” (as applied to grants of title in submerged lands) may clearly co-exist with (albeit curtailed by) a public right of navigation. Indeed, the very essence of a “right of way” is as an exception to a concurrent right of exclusive possession.
FINALLY: Nothing about these problems relating to a purported irreconcilable conflict between title and navigation depends on any significant change in the law. The test for aboriginal title, developed in Delgamuukw ( 3 S.C.R. 1010) and refined in Tsilhqot’in (2014 SCC 44), does not include any step where a court may decide that aboriginal title never arose due to some later but overriding public policy factor. As for how title may be reconciled with a subsequent competing interest, the English common law clearly permits a right of “exclusive” use and possession to co-exist with (albeit subject to) a public right of navigation.
Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15
Lisa C. Fong, Q.C., Michael Ng and Ruben Tillman