Have you ever travelled across a body of water in Canada? 

Whether by boat, ferry, or canoe, millions of people would say yes to this question as hundreds of oceans, lakes, and rivers scatter across the landscape that some know now as Canada.

What if I told you it would be impossible for Indigenous Nations to have any ownership over their ocean, lake, or river territories? It may sound a bit absurd, since Nations have been stewarding their waters since time immemorial, but that’s exactly what the courts are trying to decide.

Several  cases are working their way through the courts and considering whether Aboriginal title to submerged lands can exist. Heiltsuk Nation’s case is one of them, and Heiltsuk has also intervened (with RAVEN’s support) in a case brought by the Saugeen Ojibway Nation (SON) in which the Ontario Court of Appeal decided that Aboriginal title to submerged lands is, in fact, possible. This was a win for Indigenous Nations from coast to coast to coast. However, it only says that Aboriginal title to submerged lands is possible, and does not clarify what that may look like for other Nations. 

Building upon their title case, Saugeen Ojibway Nation (SON) recently intervened in an appeal at B.C. Court of Appeal, the Saik’uz case, with RAVEN’s support. They helped to reverse a decision saying that Aboriginal title to submerged lands is not possible because ships, boats, and other vessels have a right to navigate on the water above. Again, this reversal is a big win as it continues to open the door for Indigenous sovereignty to be fully recognized and respected by Canadian governments.

The Saik’uz Case

Thomas v Rio Tinto Alcan Inc. was a case that was brought forward by Saik’uz and Stellat’en First Nations. Their right to fish on the gorgeous Nechako river has been severely impacted by the Kenney hydroelectric dam since it was built in 1954. Rio Tinto Alcan (RTA) now owns and operates the dam. 

Saik’uz and Stellat’en want RTA to limit the fluctuation and level of flow out of the dam to mimic past river levels and increase fish populations, therefore restoring the Nations’ right to fish. They also sought Aboriginal title to the lands underneath the Nechako river. During times when the flows were the lowest, Indigenous people from the Nations would set up weirs across the river to catch fish. Saik’uz and Stellat’en argued this should ground a finding of Aboriginal title to the submerged lands of the Nechako river, bringing sovereignty to those who steward it most.

Decisions

The trial judge ruled largely in favour of Saik’uz and Stellat’en, saying that the dam impacted their sacred right to fish. The judge also ruled in RTA’s favour over an argument of liability; instead of the company having to pay for the damages, B.C. and Canada are held liable and will have to give remedy to the First Nations.

But here’s the sticky part. 

The trial judge declined to make any findings about Aboriginal title to submerged lands of the Nechako river. However, the judge expressed concern that Aboriginal title could interfere with the public right to travel on water, rendering it impossible for Aboriginal title to co-exist with that right. 

Saik’uz and Stellat’en appealed this decision. Saugeen Ojibway Nation, with RAVEN’s support, intervened in the appeal case, providing pointed legal arguments on why the comments were legally incorrect and unnecessary as the judge had declined to make findings regarding Aboriginal title. 

And it worked! The appeal judges agreed with Saik’uz, Stellat’en, and SON on this point. They kept the door open for Aboriginal title to submerged lands to remain open for another case, such as SON’s very own title case to their submerged territory, to be successful.

Conclusion

Canada has the longest coastline in the world, and over two million lakes. Over 7% of the world’s freshwater is in Canada. For Indigenous Nations to have such little jurisdiction over their water territories, when they are vital to their ways of life, is a tragedy. It has allowed colonial governments to exploit fisheries, introduce invasive species, and severely pollute waterways, leaving Indigenous Nations with the repercussions of industry and governments.

It’s never too late. With cases led by Saik’uz and Stellat’en, SON, and Heiltsuk, they are advancing Indigenous rights in the Canadian legal system to protect clean drinking water, keystone marine species like sturgeon and salmon, and conserve the beautiful lakes, rivers, and oceans we all cross on our journeys in life.