By Maura Forrest - National Post May 3, 2019

The legal test requires proof of continuous and exclusive occupation of an area prior to European sovereignty — no easy feat when the area in question is open water

A landscape view of Lake Huron at Bruce Peninsula, Ontario.Getty I

OTTAWA — In July 1615, French explorer Samuel de Champlain made his way by canoe down the French River toward Georgian Bay. Close to the mouth of the river, he encountered 300 Anishinaabe men who he dubbed cheveux relevés — “high hairs” — because of how they wore their hair tied up. In his journal, he wrote that he gave their chief a hatchet, which was received as a “rich gift,” and “asked him about his country.” The next day, he continued on to the bay.

Four hundred years later, this encounter will take on new relevance in a landmark court case in which two First Nations from Ontario’s Bruce Peninsula, known collectively as the Saugeen Ojibway Nation, are claiming title to a large swath of Lake Huron and Georgian Bay. That meeting with Champlain, they will argue, is one piece of evidence that their ancestors controlled access to their territory — including the open water — and that Europeans and other Indigenous peoples could only pass through with their permission.

The Saugeen Ojibway Nation’s claim to Aboriginal title is one of several across the country that include large areas of water, either lakes or ocean coastline. Whether they can be successful is an open question; to date, no Canadian court has ruled on whether Aboriginal title can exist to lands beneath water. The Crown will argue that it cannot, and that navigable waters are open highways for anyone to use.

But the courts may disagree. What it would mean for a First Nation to gain title to a body of water as heavily frequented as Lake Huron is, likewise, not entirely clear. Indigenous leaders are quick to dismiss fears about large swaths of open water suddenly being rendered off-limits to the public, but they do say they want greater control of fisheries and other industries operating in the waters they claim. 

Chief Lester Anoquot of the Saugeen First Nation, one of the two plaintiffs in the Saugeen Ojibway Nation case, said his people still abide by the same principles that governed that meeting with Champlain 400 years ago. “It’s not so much about wanting to control the waters or to limit access. … The issue is Aboriginal title, original ownership,” he said. “Recognizing the fact that originally, and we still maintain today, that we did have ownership.” 

The Saugeen Ojibway Nation (SON), a term referring to the Saugeen First Nation and the Chippewas of Nawash Unceded First Nation, is claiming all the water surrounding the Bruce Peninsula, a long point of land that divides Georgian Bay from the rest of Lake Huron. The claim extends west across Lake Huron to the U.S. border, east to the middle of the bay, and north halfway to Manitoulin Island.

“The water was and is central to SON’s sense of territory, and indeed to their traditional spiritual beliefs,” the plaintiffs said in their opening statement to the Ontario Superior Court last week. “SON members feel a strong moral obligation to care for the water. The water is as important to them, if not more important, than their dry land territory.”

Greg Nadjiwon, chief of the Chippewas of Nawash, is seen outside Ontario Superior Court in Toronto on Thursday, April 25, 2019. THE CANADIAN PRESS/Colin Perkel

Anoquot said he doesn’t believe a declaration of Aboriginal title would have “a huge impact on public access to the waterways,” but said the First Nations do want more control over how the region’s fisheries are managed. Cathy Guirguis, one of the plaintiffs’ lawyers, said her clients are interested in the exclusive right to the fishery that Aboriginal title could afford. “It’s a property right that you can exclusively use and benefit from for your First Nation and future generations,” she said.

But the two First Nations are facing an uphill battle. The legal test to prove Aboriginal title in Canada, which was used in a ground-breaking 2014 Supreme Court of Canada case to prove that the Tsilhqoti’in First Nation had title to 1,700 square kilometres of land in British Columbia, was developed for claims to land, not water. It requires that Indigenous peoples prove continuous and exclusive occupation of an area prior to European sovereignty — no easy feat when the area in question is open water.

In this case, both the federal and provincial governments are arguing that Aboriginal title never existed to Lake Huron and Georgian Bay. In its statement of defence, Ottawa claims that the title claim is “fundamentally inconsistent” with the public right of navigation, which it calls “an ancient, fundamental and paramount common law right.”

“A claim for Aboriginal title to the beds of navigable waters, whether alone or jointly with other Aboriginal groups, would deny the public’s right to access over navigable waters and therefore is not cognizable to the common law,” the filing reads.

Still, Guirguis said it’s possible to reconcile the public right to travel on water with Aboriginal title. “Like in any case, rights can accommodate one another,” she said.

The governments also claim the two First Nations cannot prove they were the exclusive users of such a large expanse of the Great Lakes. Not only were these waters used by other Indigenous groups, Ottawa argues in its defence, but they were also freely used by the British and French long before the assertion of European sovereignty. In their opening statement, federal lawyers argued that the weather conditions around the Bruce Peninsula are so dangerous that its inhabitants rarely ventured far off-shore, making it unlikely they were ever able to exert ownership of the waters. “The waters were a common highway and a common fishery used for transportation, communication and sustenance by anyone and everyone,” said the Ontario government in its defence filing.

The First Nations plan to use traditional knowledge and experts in history and archaeology to prove they did control access to the region.

The Saugeen Ojibway Nation’s case won’t be resolved anytime soon — the plaintiffs have estimated they need roughly 200 days to present their case. But it’s not the only one of its kind. In B.C., the Haida Nation is also claiming title to the waters and seabeds surrounding the Haida Gwaii archipelago, as well as the islands themselves.

Greg Nadjiwon, chief of the Chippewas of Nawash, centre, chats outside Ontario Superior Court in Toronto on Thursday, April 25, 2019. Nadjiwon and other band members were observing the start of a landmark trial in which the Saugeen Ojibway Nation are pressing a claim to the waters of Lake Huron and Georgian Bay. THE CANADIAN PRESS/Colin Perkel

“Since time immemorial, we’ve been dependent on the marine environment for our food, for our sustenance, for our commerce, for our travel and we obviously have an interest in that connection maintained today,” said Gaagwiis Jason Alsop, president of the Council of the Haida Nation.

In the case, first filed in B.C. Supreme Court in 2002, the federal government has made similar arguments as in the Ontario case, claiming that exclusive possession of open water is incompatible with the right to navigation, and that the Haida never controlled access to the waters they claim. “Neither before nor after contact or the assertion of sovereignty did the Haida exclude others from use of the open ocean,” Ottawa’s statement of defence reads. “Neither before nor after contact did any Haida physically occupy any area of the open ocean or the lands beneath it.” 

But David Paterson, one of the Haida Nation’s lawyers, said “there’s no sense” that navigation rights would change if the Haida are granted title. “It’s simply that the waters around Haida Gwaii would be recognized as part of Haida Gwaii, the same way they’re already recognized as part of Canada,” he said.

Here, too, the nation wants more control over industries operating in the waters around the islands, including fisheries and marine shipping. “It’s really important to recognize that we would require free, prior and informed consent for those industries (in) our waters,” Alsop said. But he rejected the idea that a declaration of title could cut off access to the area or shut down industry. “I think that’s just fear-based thinking,” he said. “Ultimately, we’re just looking to govern and manage our territories in a good way.”

Still, in another B.C. case, the reasons for seeking title are somewhat more explicit. In the Broughton Archipelago northeast of Vancouver Island, the Dzawada’enuxw First Nation filed a claim last year for title to an area of water that’s currently home to 10 salmon farms. The community has long opposed fish farming, concerned that it poses a threat to wild salmon stocks. The First Nation claims the government will no longer be able to issue fish farming licences in the area if it can prove Aboriginal title.

“What you’re watching is the evolving nature of the law in this area,” said Tom Isaac, a Vancouver-based lawyer practising Aboriginal law. He said he expects to see more title claims to water going forward, but cautioned that they will be difficult to prove using the existing legal test. “You have to ask how can you exercise control” to large areas of open water, he said. “It’s going to be a more challenging proposition.”

Back on the Bruce Peninsula, however, Anoquot sounded confident. “Our connection to the land and the water is pretty paramount,” he said. “It’s an issue of recognition.”

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