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
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.
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.
“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.”
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.”
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 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.
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