Haida Intervention: Aboriginal Title to ‘submerged lands’

Case: Saugeen Ojibway Nation
Firm:  White Raven Law
Outcome: hearing held in Ontario Court of Appeal May 2023; court ruled in favour of Saugeen Ojibway, allowing the Nation to go back to the Superior Court of Ontario to provide more evidence to establish Title, albeit to a more limited area of land than was originally in the Title claim.

… during appeal hearing, 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.

The Saugeen Ojibway Nation’s territory includes the Saugeen (Bruce) Peninsula and 1.5 million acres to the south, and the surrounding waters of Lake Huron and Georgian Bay. 

In their legal challenge, SON claims Aboriginal title to the beds of Lake Huron and Georgian Bay. At issue in SON’s appeal are the role of SON’s law and worldview in the Aboriginal title test, and the intersection between the Aboriginal title to the beds of navigable waters and the public law right of navigation. In SON’s original trial decision — which they are appealing — the Ontario Superior Court expressed doubt that it was possible to have Aboriginal title to water spaces because of the importance of the public right of navigation. 

Haida intervened in the case of Saugeen Ojibway Nation as the issue of submerged lands is key to their upcoming Title challenge. The Title case, currently in case management until 2026, relies on ‘no bad precedents’ being set regarding submerged lands.

The Haida Nation’s intimate relationship with the marine environment spans countless generations. The ocean is ever-present in Haida Gwaii. One quarter of the islands’ interior is within one kilometre of salt water, and no place is further than twenty kilometres from the sea. The pervasiveness and power of the oceans has created a maritime culture of abundance. Oceans are the primary source of physical sustenance and are a repository for cultural and spiritual knowledge and ceremonies. 

The Haida Nation, comprising over 5000 people, argued that the trial judge’s analysis, grounded in the common law perspective, failed to give the appropriate weight to the Aboriginal perspective and the lens of reconciliation in the interpretation of the relationship between Aboriginal title and public rights of navigation.

Drawing from the common law, Haida law, and section 35 of the Constitution, the Nation aimed to demonstrate that Aboriginal title can be accommodated and reconciled with public rights of navigation as part of the progressive development of Canadian legal pluralism. 

What made this intervention novel and unique was that the Haida have signed a number of reconciliation agreements with the Crowns (BC and Canada). The Nation’s concern was that an interpretation by the trial judge grounded in common law would cut off and in effect operate as a blanket refutation of recognition of title to submerged territory. So, the Haida Nation argued that modifying the concept of exclusivity — so that Aboriginal title may be reconciled with the public right of navigation —  is a pathway to consistency between the attributes of title and the common law. 

In their intervention the Haida Nation submitted that reconciliation is the constitutional lens of analysis to determine the relationship between Aboriginal title and the public right of navigation; it is informed by the Indigenous perspective and does not require leaps that strain the judicial imagination. Such an approach is consistent with Haida law and recognizes and respects the Haida Indigenous perspective of the rights at stake.

Thus, the Haida Nation offered to the Court its distinctive perspective and context regarding the reconciliation of Aboriginal title and the public right of navigation in law and practice. Haida law, as reflected both in its historical relationships with maritime traders and in contemporary agreements with the Crown, far from demonstrating inconsistency, illustrates how the reconciliation of the public right to navigation with Aboriginal title can be achieved in practice. 

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