Case: Saugeen Ojibway Nation
Firm:  Ng Ariss Fong
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.

More context: https://www.ngariss.com/our-in-dispute-posts/podcast-saugeen-ojibway-nation-appeal-canada-concedes-that-aboriginal-title-and-public-navigation-can-co-exist/

The Saugeen Ojibway Nation (SON) is made up of two First Nations: Saugeen First Nation and the Chippewas of Nawash Unceded First Nation. SON claims Aboriginal title to the beds of Lake Huron and Georgian Bay. SON is appealing the trial decision dismissing it’s claim for title at the Ontario Court of Appeal in Spring 2023. 

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 trial decision, 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. 

Is this wrong in Canadian law? Does it fail to give voice to SON’s Indigenous law and worldview about its relationship to its waters? The trial decision in Saik’uz relied heavily on 2021 ONSC 4181 for its analysis of the intersection between Aboriginal title to the beds of navigable waters and the public right of navigation. The appeal in Saik’uz will be heard before SON’s appeal at the Ontario Court of Appeal. The BC Court of Appeal decision in Saik’uz will likely be the first appellate decision to address Aboriginal title to the beds of navigable waters, and whether and how that interacts with the public right to navigation. The result of Saik’uz’s appeal at the BCCA could therefore directly affect the outcome of SON’s own claim to Aboriginal title.

The Plaintiffs in Saik’uz claimed an Aboriginal right to fish in the Nechako watershed. They also claimed Aboriginal title to the lands and the beds of the lakes and rivers from which they have traditionally fished. They invoked these rights as the basis for common law tort claims against Rio Tinto Alcan in nuisance and for breach of riparian rights. The British Columbia Supreme Court (BCSC) accepted the plaintiffs had an Aboriginal right to fish, but declined to make a finding of Aboriginal title, either to land or water. The BCSC decided this primarily on procedural grounds, and in the alternative, declined to make a ruling on this point because of limited evidence from First Nations with potentially overlapping claims to title and because of what the court perceived as the conflict between Aboriginal title and the public right of navigation. 

In coming to this conclusion, it relied on Justice Matheson’s reasoning in SON’s case, 2021 ONSC 4181. The BCSC concluded the province had failed to protect Saik’uz’s fishing rights, but dismissed their nuisance claim because Rio Tinto’s diversion was authorized by statute. The Saik’uz appeals this result. SON’s perspective on this appeal is unique and novel in two ways. 

First, SON is uniquely well situated to bring forth the errors of law about the interaction between Aboriginal title to the beds of navigable waters and the public right of navigation, which were made in SON’s case (2021 ONSC 4181) and relied upon by the BCSC in Saik’uz. Will the BCCA be interested in hearing this perspective? 

Second, SON also brings its unique perspective as a treaty nation to the intervention. From SON’s perspective, perhaps the best mechanism for ensuring the public right of navigation can co-exist with Aboriginal title in the modern context is by making a treaty with the First Nations title-holder that grants the public this right. This is one of the approaches SON plans to present to demonstrate to the BCCA how the public right of navigation can coexist and be reconciled with Aboriginal title to the beds of navigable waters. This is not a perspective that the Saik’uz appellants plan to bring forth. 

There is no Supreme Court of Canada case that definitively addresses Aboriginal title to the beds of navigable waters. Saik’uz and SON’s appeal are the first two appellate cases that will tackle this question head on. Waters form an integral part of SON’s territory and way of life, and it is the same for many other First Nations. There is a real risk that Canadian appellate courts will simply decide Aboriginal title to the beds of navigable waters cannot exist because it is incompatible with the public right of navigation – certainly, this is what the Crown is arguing in SON’s appeal and in the appeal of the Saik’uz case. 

This would deprive our clients and other First Nations of a tool to protect their water territories, and become another way in which Canadian colonial law is inhospitable to Indigenous laws and worldviews. The likely impact of SON’s intervention would be to show the BC Court of Appeal how these rights can co-exist in Canadian law – primarily, by way of treaty and through the doctrine of justified infringement. Our hope is to show the court that there is no need to conclude that Aboriginal title to water spaces is inconsistent with the assertion of Crown sovereignty or otherwise so incompatible with the structure of the common law that it cannot be recognized in Canadian law. 

Instead, the Court can rely on these well-developed doctrines and tools that already exist in Canadian law to balance and give voice to the competing rights of the public and Indigenous title-holders in a manner that is respectful of the worldview and law of Indigenous Nations.