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Indigenous - Aboriginal Title. Chippewas of Nawash Unceded First Nation v. Canada (Attorney General)
In Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered an action where an indigenous group "sued Canada and Ontario for a declaration that they have Aboriginal title to submerged lands in a large section of Lake Huron and Georgian Bay, surrounding the Bruce Peninsula (the “Title claim”)" and "for breach of the promise made by the Crown in 1836, in Treaty 45 ½, to protect SON’s land from encroachments by “the whites” (the “Treaty claim”)".
In these quotes the court considers the distinction between aboriginal 'right' and aboriginal 'title':(1) Did the trial judge confuse the tests for Aboriginal rights and Aboriginal title?
[22] At the time of the trial, the Tsilhqot’in test had not yet been applied to submerged land. SON urged the trial judge to apply that test to their claim. Because the application of the Tsilhqot’in test to submerged land was novel, the trial judge took the precaution of considering whether the claimed right also met the test for an Aboriginal right.
[23] The test for an Aboriginal right is different from the test for Aboriginal title. The test for an Aboriginal right asks whether the activity was integral to the distinctive culture of the claimant group before contact with European societies, not at the later time of the assertion of Crown sovereignty in 1763: R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507, at paras. 46, 60. Further, the activity must have been “a central and significant part of the society’s distinctive culture”: Van der Peet, at para. 55.
[24] Here, the trial judge applied the test for an Aboriginal right, as established in Van der Peet and more recently set out in Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535, as a precaution due to the novelty of the claim. She applied the test to the circumstances existing at the date the Crown asserted sovereignty. She went on to later apply the Tsilhqot’in test for Aboriginal title.
[25] The trial judge’s analysis under the umbrella of an Aboriginal rights claim did not taint her analysis of the test for Aboriginal title. When referring to the Aboriginal rights test, she acknowledged that “there is some overlap between [that test] and the Tsilhqot’in test, but they are not the same. It is therefore also important that, as the trial judge, I make the factual findings needed for both issues.” The trial judge’s reasons make it clear that she applied the tests for sufficiency of occupation, continuity, and exclusivity in relation to the Aboriginal title claim. Her observation that SON had not demonstrated that their ancestors had a connection with the claimed land that was of central significance to their distinctive culture did not affect that analysis.
[26] The trial judge’s consideration of the Aboriginal rights test was unnecessary. The Tsilhqot’in test is sufficiently flexible to be adapted to a claim for submerged lands. The trial judge’s Aboriginal rights analysis did not undermine her analysis of SON’s claim to Aboriginal title.
[27] In any event, the distinct approaches to Aboriginal rights and Aboriginal title are not conceptually alien to one another. As noted by the minority in R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220, at para. 140, echoing observations in Delgamuukw, “anyone considering the degree of occupation sufficient to establish title must be mindful that aboriginal title is ultimately premised upon the notion that the specific land or territory at issue was of central significance to the aboriginal group’s culture.” This connection explains the insistence in Tsilhqot’in on a strong physical presence on the claimed territory. As recently reaffirmed by the Supreme Court, “Aboriginal title is thus a sub-category of Aboriginal rights”: Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, [2020] 1 S.C.R. 15, at para. 27.
[28] We accordingly reject SON’s argument that the trial judge erred by analyzing their claim for Aboriginal title through the lens of the test for an Aboriginal right. The trial judge’s precautionary consideration of the Aboriginal rights test did not taint her analysis of the Aboriginal title test, which extends to submerged lands. . Chippewas of Nawash Unceded First Nation v. Canada (Attorney General)
In Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered an action where an indigenous group "sued Canada and Ontario for a declaration that they have Aboriginal title to submerged lands in a large section of Lake Huron and Georgian Bay, surrounding the Bruce Peninsula (the “Title claim”)" and "for breach of the promise made by the Crown in 1836, in Treaty 45 ½, to protect SON’s land from encroachments by “the whites” (the “Treaty claim”)".
In these quotes the court considers aboriginal title, here title over submerged lands:[12] On appeal, the parties generally agree that Tsilhqot’in establishes the test for proof of Aboriginal title to submerged lands, although Ontario argues that the application of that test should be nuanced by the more general test for Aboriginal rights, of which it is a subset: Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at para. 137.
[13] The Tsilhqot’in test requires an examination of Aboriginal occupation of land prior to the assertion of British sovereignty and requires that the occupation be:1. Sufficient, in that there must have been sufficient occupation of the Aboriginal title claim area;
2. Continuous, in that, where present occupation of the Aboriginal title claim area is relied upon as proof of occupation pre-sovereignty, there must be continuity between pre-assertion of sovereignty occupation and present occupation; and
3. Exclusive, in that the historic occupation must have been exclusive, as of the date of assertion of British sovereignty. [14] The parties agree that the date of assertion of British sovereignty was February 19, 1763, by the Treaty of Paris, which ended the Seven Years’ War. France ceded all of the mainland in North America east of the Mississippi River, and other lands, to the British. The British then asserted sovereignty over the land formerly claimed by the French, including the land to which SON now claims Aboriginal title.
[15] We draw the following additional principles from Tsilhqot’in:1. With the assertion of sovereignty, the Crown is deemed to acquire radical or underlying title to all land (see also Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335). That title is burdened by the “pre-existing legal right” held by Aboriginal peoples based on their use and occupation of the land prior to European arrival: at para. 12.
2. The dual perspectives of the common law and of the Aboriginal claimant group bear equal weight in evaluating a claim for Aboriginal title: at para. 14.
3. Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which are not confined to those Aboriginal practices, customs, and traditions integral to distinctive Aboriginal cultures: at para. 15.
4. The concepts of sufficiency, continuity, and exclusivity provide “useful lenses through which to view the question of Aboriginal title”, but “the court must be careful not to lose or distort the Aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights.” Sufficiency, continuity, and exclusivity “are not ends in themselves, but inquiries that shed light on whether Aboriginal title is established”: at para. 32.
5. The Aboriginal perspective focuses on laws, practices, customs, and traditions of the group. The group’s size, manner of life, material resources, and technological abilities, and the character of the lands claimed, are all relevant: at para. 35.
6. The common law perspective imports the idea of possession and control of the lands. Sufficiency of occupation is a context-specific inquiry. The intensity and frequency of use sufficient to establish Aboriginal title may vary with the characteristics of the group asserting title and the character of the land over which title is asserted: at para. 37.
7. To sufficiently occupy the land for the purposes of title, the Aboriginal claimant group must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes. The occupation cannot be purely subjective or internal. There must be evidence of a strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group: at para. 38.
8. Exclusivity requires the Aboriginal claimant group to have had “the intention and capacity to retain exclusive control” over the claimed land. Regular use, without exclusivity, may give rise to Aboriginal rights; however, to successfully claim Aboriginal title, the use must have been exclusive: at para. 47.
9. Whether the Aboriginal claimant group had the intention and capacity to control the land at the date of sovereignty in 1763 is a question of fact for the trial judge and depends on various factors, such as the characteristics of the claimant group, the nature of other groups in the area, and the characteristics of the land in question. Proof that others were excluded or were allowed access only with the permission of the claimant group, an absence of challenges to the occupancy, or evidence that treaties were made with other groups may demonstrate an intention and capacity to control the land. As with the sufficiency of occupation, the exclusivity requirement must be considered from both the common law and Aboriginal perspectives: at para. 48.
10. The question of whether Aboriginal title has been proven is a question of fact for the trial judge. Appellate review is not justified absent a palpable and overriding error. The presence of conflicting evidence is not sufficient to demonstrate palpable and overriding error: at paras. 52, 60. [16] Here, deference is owed to the trial judge’s findings concerning sufficiency, continuity, and exclusivity. The trial extended over 97 days of evidence. The evidence was conflicting, and the documentary record was massive, including almost 5,000 exhibits and over 30 expert reports.
[17] Further, as the trial judge observed, SON’s choice of the boundaries of the area it claimed was not made to reflect physical occupation of that area. Rather, it was made to reflect the reality of the international border in the west and to divide the lake evenly between the First Nations on the north and east sides of the lake. SON’s claim asserts title to the submerged land, with the rights to minerals and other resources that would be associated with that title, the right to exclude others from the space above the land, as well as the right to the things in the water above that land. It does not claim title to the water.
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