COURT FILE NOS.: 94-CQ-050872CM and 03-CV-261134CM1

DATE: 20210729

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SAUGEEN FIRST NATION and THE CHIPPEWAS OF NAWASH UNCEDED FIRST NATION

Plaintiffs

– and –

THE ATTORNEY GENERAL OF CANADA, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE CORPORATION OF THE COUNTY OF GREY, THE CORPORATION OF THE COUNTY OF BRUCE, THE CORPORATION OF THE MUNICIPALITY OF NORTHERN BRUCE PENINSULA, THE CORPORATION OF THE TOWN OF SOUTH BRUCE PENINSULA, THE CORPORATION OF THE TOWN OF SAUGEEN SHORES and THE CORPORATION OF THE TOWNSHIP OF GEORGIAN BLUFFS.

Defendants

CHIPPEWAS OF NAWASH UNCEDED FIRST NATION and SAUGEEN FIRST NATION

Plaintiffs

– and –

THE ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendants

H. W. Roger Townshend, Renée Pelletier, Cathy Guirguis, Jaclyn C. McNamara, Benjamin Brookwell, Krista Nerland, Scott Franks, Christopher Evans and Joel Morales, for the Plaintiffs

Michael Beggs, Michael McCulloch, Barry Ennis, Carole Lindsay, Alexandra Colizza and Gary Penner, for the Defendant The Attorney General of Canada

David J. Feliciant, Peter Lemmond, Richard Ogden, Julia McRandall and Jennifer Lepan, for the Defendant Her Majesty The Queen in Right of Ontario

Tammy Grove-McClement, for the Defendant The Corporation of The County of Bruce

Jill Dougherty and Debra McKenna, for the Defendant The Corporation of The Township of Georgian Bluffs

Gregory F. Stewart, for the Defendants The Corporation of The County of Northern Bruce, The Corporation of the Town of South Bruce Peninsula and The Corporation of the Town of Saugeen Shores

HEARD: April 25, 29-30, May 1, 13-16, 22-24, 27-31, June 3-4, 10-12, 28, July 8-10, 12, 15-16, 19, 22-26, Aug. 12-16, 19, 20-21, Sept. 16-18, 30, October 1-4, 7, 11, 21-24, 30-31, Nov. 1, 18-22, 25-26, Dec. 9-11, 16, 2019, Jan. 8, 13-17, 20-22, Feb. 3, 6, 10, 12-13, 18, 20-21, March 3-6, 9-12, April 28-29, October 19-23, 2020, written submissions July 22, 23, 26, 2021

REASONS FOR JUDGMENT

Table of Contents

Overview.. 4

Part 1 - Scope of the claims, phasing and overview of the trial evidence. 6

Scope of the Aboriginal Title Claim.. 6

Scope of the Treaty Claim.. 7

Phase 1 of a two-phase process. 8

Overview of the evidence. 8

Part 2 - Overarching legal principles. 10

Burden of proof and approach to the evidence. 10

Oral history. 11

Evidence of domestic law.. 13

Presumption of regularity. 14

Experts’ use of secondary sources. 14

Evidence of Indigenous Customary Law.. 15

Constitutional framework. 15

Part 3 - Aboriginal Title Claim.. 16

Analysis of whether there is an Aboriginal right to title in the lake bed. 17

SON’s specific claim.. 22

SON’s distinctive culture. 26

SON’s historical practices, customs or traditions. 30

Translation into a modern legal right 39

The Tsilhqot’in Nation test 51

SON occupation (including continuity) and exclusivity in the claim area. 55

Application of Tsilhqot’in Nation test 85

Changing the claimed Aboriginal right 89

Aboriginal title to Chantry Island and Rabbit Island. 90

Part 4 - Treaty Claim.. 92

The issues in the Treaty Claim.. 92

Treaties and treaty interpretation. 93

The honour of the Crown. 95

Treaty-making and Crown policy. 98

Treaties 45 and 45½.. 101

The protection of the Peninsula between 1836 and 1854. 112

Squatting and the tools available to address squatting. 115

Crown actions that were or could have been taken to protect the Peninsula. 126

Squatting escalating in the 1850s due to the pressure for land. 134

Breach of the encroachment clause and the honour of the Crown. 135

Treaty 45½ did not create a reserve. 139

SON’s objections to the negotiation process leading to Treaty 72. 142

Negotiations leading up to Treaty 72. 143

The negotiation of Treaty 72. 147

Breach of the honour of the Crown. 157

Whether a fiduciary duty arose to supplement the treaty and honour of the Crown. 159

Crown immunity defence. 166

Laches defence. 166

Treaty 72 impact on SON harvesting rights. 174

Part 5 - Municipal defendants 182

Part 6 - Orders. 187

Schedule “A” – Expert Witnesses. 190

Expert witnesses called by SON.. 190

Expert witnesses called by Canada. 193

Expert witnesses called by Ontario. 195

W. MATHESON J.:

Overview

[1] The plaintiffs in these lawsuits are two First Nations who have, for many years, lived on or near the Bruce Peninsula. They are the Chippewas of Nawash Unceded First Nation and the Saugeen First Nation. These First Nations refer to themselves together as the Saugeen Ojibway Nation or, in this litigation, SON.

[2] In SON’s first lawsuit, the Treaty Claim, SON has shown that the pre-Confederation Crown breached its obligations to SON’s ancestors in the 1800s.

[3] The Treaty Claim focuses on two treaties that are now known as Treaty 45½ and Treaty 72. Ancestors of SON entered into Treaty 45½ in 1836. In that treaty, they surrendered about 1.5 million acres of land south of the Peninsula. The main benefit that they received, in return, was the Crown’s promise to protect their lands on the Peninsula from encroachments by white people. Squatting was already a problem in 1836, and this problem escalated with the non-Indigenous population growth over the following decades. I conclude below that the Crown breached the treaty promise to protect the Peninsula, and in doing so also breached the honour of the Crown.[1]

[4] SON’s Treaty Claim also challenges the Crown negotiation process leading up to Treaty 72. SON submits, and I agree, that the principle of the honour of the Crown applies to the negotiation of a treaty. I have found that some of the Crown negotiation conduct in 1854 breached the honour of the Crown.

[5] With respect to Treaty 72 itself, SON does not allege that the Crown breached the treaty. However, SON seeks a declaration that the treaty had no impact on SON traditional harvesting rights except where the surrendered land has been put to an incompatible use. I have granted a declaration about the continuation of SON harvesting rights, based on incompatible land use.

[6] SON further claims that Crown fiduciary duties arose from Treaty 45½. I have not found that there was a fiduciary duty that supplemented the above treaty obligations.

[7] In the second lawsuit, the Aboriginal Title Claim, SON has brought forward a novel legal claim. SON seeks Aboriginal title to the lake bed of a large part of Lake Huron, including about half of Georgian Bay, surrounding the Peninsula. However, SON has not sought Aboriginal title to the Peninsula itself.

[8] SON are a fishing people. They have an established Aboriginal right to fish in their traditional fishing grounds on both sides of the Peninsula.[2] SON now seeks broader rights to the Great Lakes, beyond those needed for fishing. SON seeks the same Aboriginal title rights to the lake bed that would arise if it were dry land, including the right to control the land. Significantly, this would mean that SON has the right to exclude all other people from that part of Lake Huron and Georgian Bay, including for passage through the area.

[9] I have not found that SON has Aboriginal title to the lake bed. However, SON’s claim has been a catalyst for a discussion about important issues concerning the Great Lakes, and the public right of navigation. The outcome might well have been different for other submerged land.

[10] The Attorney General of Canada and Her Majesty the Queen in Right of Ontario are the main defendants to these actions.[3] The remaining defendants are municipalities that currently own certain roads and road allowances on the Peninsula. No breach of any obligation has been alleged against any of the municipal defendants.[4] They have been named as defendants because SON seeks ownership of those roads and road allowances.

[11] Ontario has raised the defences of Crown immunity and laches (unreasonable delay) in response to the Treaty Claim. As well, the municipal defendants have asked to be removed from this litigation altogether. To the extent that these issues need to be addressed now, I have concluded that they do not defeat SON’s claims. Some of these issues are better suited to the next phase of this litigation and have therefore been deferred to that phase, if necessary.

[12] These reasons for decision are organized as follows:

Part 1 – Scope of the claims, phasing of the litigation and overview of the evidence

Part 2 – Overarching legal principles that apply to both the Aboriginal Title Claim and the Treaty Claim

Part 3 – Aboriginal Title Claim

Part 4 – Treaty Claim, including the Crown immunity and laches defences

Part 5 – Claim against the municipal defendants

Part 6 – Orders

Part 1 - Scope of the claims, phasing and overview of the trial evidence

Scope of the Aboriginal Title Claim

[13] In the Aboriginal Title Claim, SON seeks a declaration that they have Aboriginal[5] title to part of Lake Huron and Georgian Bay. That area is shown in light blue on SON’s illustrative map, labelled the “Aboriginal Title Claim Area”:

[14] The area broadly surrounds not only the Peninsula but also lands that were surrendered in Treaty 45½.[6]

[15] The claim includes two islands: Rabbit Island (also known as Barrier Island) and Chantry Island. Rabbit Island is in Georgian Bay, east of Neyaashiinigmiing.[7] Chantry Island is in Lake Huron, west of Southampton. I address the claim for Aboriginal title to these islands separately in these reasons because it is a claim for Aboriginal title to dry land rather than submerged land.[8]

[16] SON has excluded some land from the Aboriginal Title Claim. All islands surrendered by other treaties are excluded from the claim. Any land “owned by private parties in fee simple” is also excluded. In turn, privately owned submerged land is excluded from the claim. SON submits that there is privately owned submerged land in the Aboriginal Title Claim Area, mentioning various ports and harbours. However, the trial evidence does not include specific information about the location or private ownership of any submerged land in the Aboriginal Title Claim Area.

[17] SON claims the same Aboriginal title rights to the lake bed that would apply if it were dry land, including the right to use and control the land and to reap the benefits flowing from it. I expand on these rights below.

Scope of the Treaty Claim

[18] The Treaty Claim focuses on Treaty 45½ (from 1836) and Treaty 72 (from 1854). SON alleges that the defendants breached fiduciary duties and the honour of the Crown in relation to the Crown’s treaty obligations under Treaty 45½. SON submits that the Crown breached the clause in Treaty 45½ requiring that the Crown protect the Peninsula from encroachments by white people.

[19] SON further claims that the Crown’s conduct in negotiations leading up to Treaty 72 breached Crown fiduciary duties and the honour of the Crown. However, SON does not claim that Treaty 72 is invalid, nor does SON claim that the Crown breached Treaty 72. As SON put it, they seek to reverse the practical effects of Treaty 72 without invalidating the treaty.

[20] In the Treaty Claim, SON seeks equitable compensation, punitive damages and exemplary damages, totaling $90 billion (with some offsets) from each of Canada and Ontario. SON further seeks beneficial ownership of the lands that they surrendered in Treaty 72 that are currently owned by Canada, Ontario or the defendant municipalities. SON’s claim for beneficial ownership mainly seeks a constructive trust over those lands.

[21] SON is not seeking beneficial ownership of other land, expressly excluding land owned by “bona fide purchasers for value of the legal estate without notice” from the Treaty Claim.

[22] SON also seeks a declaration that Treaty 72 had no impact on any SON traditional harvesting rights, except where the land was put to an incompatible use.

Phase 1 of a two-phase process

[23] This trial is Phase 1 of two phases in these proceedings. Phase 1 focuses on liability, declaratory remedies and high-level defences. Phase 2 focuses on other remedies and defences.

[24] Phase 1 does not include property-specific issues. In turn, SON’s claim for beneficial ownership of the many claimed properties is part of Phase 2 because that remedy draws in “all the circumstances” regarding each specific property: Soulos v. Korkontzilas, 1997 CanLII 346 (SCC), [1997] 2 S.C.R. 217, at para. 34. That claim for a constructive trust, and all other property-specific issues, are deferred to Phase 2.

[25] Two issues have been raised in Phase 1 that give rise to a question about whether they should be deferred to Phase 2: the defence of laches and the municipal defendants’ request to be removed from the litigation. As discussed below, I have concluded that what remains of the laches defence, and the municipalities’ request, should be dealt with in Phase 2, if necessary.

[26] On consent, Phase 2 of this litigation will not take place until after all appeals from this decision are exhausted. Phase 2 is therefore expected to begin after a gap of several years, with another discovery process followed by another trial. However, SON submits that Phase 2 may be unnecessary due to a settlement or an alternative process after Phase 1.

Overview of the evidence

[27] The evidence in this trial includes testimony from more than 50 witnesses, including both non-expert witnesses and expert witnesses, as well as voluminous documentary exhibits.

[28] Numerous members of SON testified, including Chiefs, past Chiefs and Elders. I have adopted the terminology used by SON’s counsel, describing the SON members as community witnesses. Most of the community witnesses testified in person. However, for some, the evidence was admitted through the playing of videos of examinations done many years earlier.[9]

[29] The defendants also called non-expert witnesses.

[30] The parties have generally not challenged the credibility of the non-expert witnesses.[10] I found all of those witnesses sincere and helpful.[11] Any issues about their evidence mainly relate to the impact of their evidence on the issues in this case, as discussed in context below.

[31] The parties put forward expert evidence to prove a substantial part of the factual matrix. The subject matter of the expert evidence is wide-ranging. It includes history (with a variety of focuses and time periods), anthropology (including archaeology, ethnohistory and linguistics, among other areas), geology and American law. All experts testified and were cross-examined. Extensive expert reports and related documents were admitted into evidence on consent.

[32] The parties consented to the expert witnesses, as properly qualified, with one exception.[12] However, some focused issues have been raised by SON and by the defendants regarding parts of the expert evidence. In the attached Schedule A, I describe each expert witness and make any overarching findings about their evidence. I make more specific findings, in context, as the issues come up in these reasons.

[33] The documentary trial evidence includes almost 5,000 exhibits, many of which are hundreds of pages in length. These exhibits include documents not only from the 19th century but also from much earlier and later time periods. Many documents relate to the period during which the Indigenous peoples of the area did not have their own written language. Although there were Indigenous people who spoke English, acted as translators and prepared some documents in English, it remains the case that the documents in the trial record from that time period were usually written by Europeans, mainly the British.

[34] As a result of an Authenticity Agreement, the parties have admitted the authenticity of historical documents and the truth of the contents of those documents subject to the right of any party to put forward contrary evidence.[13] The Authenticity Agreement recognizes that I will be weighing the facts in the historical documents in the context of other relevant evidence.[14]

[35] There is prior case law involving SON members.[15] The parties confirmed at trial that any factual findings made in prior cases are not binding in this case and cannot be relied upon as proof of those facts. Neither res judicata nor issue estoppel arise from that case law.

[36] Some of the trial hearings took place in SON’s communities at Saugeen and Neyaashiinigmiing. In addition, I viewed several locations in the Peninsula area. Due to COVID-19, the last (expert) witness testified from Montreal in a virtual hearing.

[37] In summary, there is an abundant factual record about the historical events that relate to these claims. Many expert and other witnesses testified about aspects of the factual matrix. There are voluminous historical documents in evidence, which have been admitted for the truth of their contents, to be weighed with other evidence. The lengthy factual account below forms my findings of fact bearing in mind all of the evidence, with specific evidentiary issues discussed where needed.

Part 2 - Overarching legal principles

[38] Before addressing the specific claims, I will review some legal principles that apply to both the Aboriginal Title Claim and the Treaty Claim.

Burden of proof and approach to the evidence

[39] SON accepts that they have the burden to prove their claims with cogent evidence on the balance of probabilities: Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911 (“Mitchell 2001”), at para. 51, per McLachlin C.J.; R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507, at para. 132, per L’Heureux-Dubé J.

[40] This principle “should not be read as imposing upon [A]boriginal claimants the ‘next to impossible task of producing conclusive evidence from pre-contact times about the practices, customs and traditions of their community’”: Mitchell 2001, at para. 52, per McLachlin C.J., citing Van der Peet, at para. 62.

[41] The rules of evidence have been adapted to address the special challenges of providing evidence in support of claims such as these. The “requirement that courts interpret and weigh the evidence with a consciousness of the special nature of [A]boriginal claims is critical to the meaningful protection” of Aboriginal and treaty rights: Mitchell 2001, at para. 37, per McLachlin C.J.; Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at para. 84, per Lamer C.J. Section 35(1) of the Constitution Act, 1982 recognizes and protects these rights.

[42] Chief Justice McLachlin described the flexible approach to the rules of evidence in Mitchell 2001, at para. 30. Those rules “are animated by broad, flexible principles, applied purposively to promote truth-finding and fairness. The rules of evidence should facilitate justice, not stand in its way.”

[43] Further, the evidence, oral or documentary, must be evaluated from the Aboriginal perspective: R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220 (“Marshall and Bernard”), at para. 69, per McLachlin C.J. It is imperative that the laws of evidence work to ensure that the Aboriginal perspective is “given due weight by the courts”: Mitchell 2001, at para. 37, per McLachlin C.J., citing Delgamuukw, at para. 84, per Lamer C.J.

[44] The flexibility of the rules of evidence is not without limits. Chief Justice McLachlin emphasized that the special nature of Aboriginal claims does not negate the operation of general evidentiary principles. “While evidence adduced in support of Aboriginal claims must not be undervalued, neither should it be interpreted or weighed in a manner that fundamentally contravenes the principles of evidence law”: Mitchell 2001, at para. 38.

Oral history

[45] There are special evidentiary rules for oral history evidence. Indigenous peoples, including those involved in the events at issue in this case, did not have a written language at the relevant time. Orally transmitted history is put forward to prove historical facts. Oral histories may offer evidence of ancestral practices, and their significance, for example. No other means of obtaining that evidence may exist: Mitchell 2001, at para. 32, per McLachlin C.J.

[46] For many Indigenous peoples, oral histories are the only record of their past. In order not to place an “impossible burden of proof” on Indigenous peoples, oral histories must be placed on an equal footing with the historical documents, with which courts are more familiar: Delgamuukw, at para. 87. This must be done on a case-by-case basis: Delgamuukw, at para. 87.

[47] Putting oral histories on an equal footing with historical documentary evidence means that oral history can be given independent or due weight: Delgamuukw, at paras. 87, 98; Watson v. Canada, 2020 FC 129, at para. 69.

[48] The evidence presented by Aboriginal claimants should not be undervalued “simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case”: Van der Peet, at para. 68. However, it should not “be artificially strained to carry more weight than it can reasonably support”: Mitchell 2001, at para. 39, per McLachlin C.J.

[49] Further, due weight and an equal footing does not mean preferential treatment. There is a spectrum of reliability that applies to oral history as well as to documents. SON acknowledges that the spectrum ranges from “the highly compelling to the highly dubious. Claims must still be established on the basis of persuasive evidence demonstrating their validity on the balance of probabilities”: Mitchell 2001, at para. 39, per McLachlin C.J.

[50] At trial, the parties and witnesses used various terminology to describe what is called “oral history” in the case law. At trial, the term “oral history” was often used to refer to events that pre-dated the lifetime of the witness, where the term “oral traditions” was used for more recent events. As well, the term “deep time” oral history was sometimes used to describe stories that SON submits include facts from thousands of years ago. I have used the general term “oral history” to encompass all of these phrases.

[51] Oral history evidence must be accepted when the conditions of usefulness and reasonable reliability are fulfilled. As set out by McLachlin C.J.: “Usefulness asks whether the oral history provides evidence that would not otherwise be available or evidence of the [A]boriginal perspective on the right claimed. Reasonable reliability ensures that the witness represents a credible source of the particular people’s history”: Marshall and Bernard, at para. 68.

[52] When considering usefulness, it is important to have regard for the different uses made of this type of evidence. Oral history may refer to events in the past, but may also be stories that are relied on in other ways. In this case, for example, SON relies on stories to explain who they are and to show their spiritual connections to the territory at issue. Some of these stories form part of the Midewin faith and are put forward to show a spiritual connection rather than a factual account. Oral history may also be “recollections of [A]boriginal life” – a witness’s account of what he or she learned from deceased individuals within the community concerning genealogy or traditional activities and practices, including land use: Xeni Gwet'in First Nations v. British Columbia, 2007 BCSC 1700, [2007] B.C.J. No. 2465 (“Tsilhqot'in Trial Decision”), at para. 163; Delgamuukw, at paras. 99-101.

[53] Further, even when relied on for some historical fact, oral histories are often not advanced as entirely factual. As put in this trial, a story or account may have an element of “historicity”, that is, an element that is put forward as a historical fact, even though other aspects of the same story or account are of a different character. Oral histories may be woven with history, mythology, legend, politics and moral obligations: Delgamuukw, at para. 86, citing Kruger v. The Queen, 1977 CanLII 3 (SCC), [1978] 1 S.C.R. 104, at p. 109; Mitchell 2001, at para. 34, per McLachlin C.J.

[54] For example, Karl Keeshig, a traditional knowledge holder and Third Degree Midewin[16] from Nawash, testified about certain Anishinaabe stories, including “traditional sacred stories” about Nanabush. He described Nanabush as a name for the Creator, part human, part spirit. Karl Keeshig recounted traditional sacred stories, none of which SON submits are entirely factual. However, SON submits that some of the stories now in evidence have an element of fact or “historicity”.

[55] The Supreme Court has cautioned against “facilely rejecting oral histories simply because they do not convey “historical truth”, contain elements that may be classified as mythology, lack precise detail, embody material tangential to the judicial process, or are confined to the community whose history is being recounted”: Mitchell 2001, at para. 34, per McLachlin C.J.

[56] Even if oral history is not definitive or precise, it may still be useful: Delgamuukw, at para. 101. Similarly, there may be different versions of a story or account, and discrepancies, which will not necessarily diminish the weight of the evidence.

[57] When considering reliability, courts have highlighted differences in the manner of transmission of oral histories. The process the Indigenous group used over time to preserve the story may have an impact on reliability. Formal processes have been used in some instances, as illustrated by the facts in Delgamuukw. In that case, the oral history, known as the adaawk or adaawx, and kungax, was formally kept and passed down by designated people who recounted the stories on particular occasions with a process to challenge the accuracy of the stories. A formal process, including steps to check for accuracy, leads to increased reliability: Benoit v. Canada, 2003 FCA 236, 228 D.L.R. (4th) 1, at para. 109.

[58] SON did not have a process like adaawx. Randall Kahgee, former Chief of the Saugeen First Nation, testified about a process to gain knowledge from an Elder. However, the evidence put forward as oral history in this trial was mainly not the product of that process. There was little formality that related to the specific evidence SON put forward. In my view, formality is not required, but it enhances reliability.

[59] In final submissions, Canada focused on whether, for each witness, there was evidence that the witness had been recognized by their community as a knowledge keeper. Canada submitted that most of the witnesses had not been recognized as knowledge keepers. I agree that the role of knowledge keeper would be relevant, but in my view its absence is only one factor to consider.

[60] The case law shows that reliability may be enhanced by the role of the person who conveyed the story to the witness, such as an Elder or a storyteller. In contrast, reliability may be weakened where the witness had multiple potential sources from which he or she could have learned the story. Examples that apply in this case include information that a witness learned from the study of archival documents or briefings as part of political or litigation-oriented activity: Watson, at paras. 73-74. Information learned from those other sources may be admissible in another way, but not as oral history.

[61] I have applied the above principles to make my findings of fact. In doing so, I have given weight to some significant oral history, as set out below.

Evidence of domestic law

[62] At trial, SON and the defendants raised issues about some witnesses, who appeared to be testifying about domestic law.

[63] Evidence of domestic law is normally inadmissible: Alderville First Nation v. Canada, 2014 FC 747, [2014] F.C.J. No. 1377, at para. 17, citing: Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis, 2009) at p. 832 (currently at para. 12.181) 5th ed. (Toronto: LexisNexis Canada, 2018).

[64] However, in cases such as this, which deal with a great span of history, the court may need help on historical legal matters: Alderville, at paras. 46, 55. As a result, I accepted certain experts as qualified to testify about legal history.

[65] Other witnesses also referred to legal matters when discussing historical events at issue. For example, there is considerable evidence about the legal tools that were available to the Crown to protect the Peninsula in the 19th century, after Treaty 45½. Witnesses on both sides of the case referred to those tools in some detail, including statutory powers. Another example is the expert evidence regarding whether or not there was a third treaty reached at the Niagara Congress in 1764. The experts had views on that subject, from the standpoint of their expertise, but were not giving legal opinions.

[66] I permitted witnesses to give evidence that referred to legislation and other legal steps on the understanding that their testimony would be weighed bearing the above evidentiary principles in mind.

Presumption of regularity

[67] Canada relies on the common law presumption of regularity with respect to acts by public officials. There is a common law presumption that public officials have “regularly” performed their official duties. For example, if routine instructions were given, the presumption would be that those instructions were also followed. Here, the most pertinent issue is whether printed notices about squatting were actually posted or published, which I discuss in context below.

[68] Regularity is presumed until the contrary is proven. The party trying to rebut the presumption bears the onus to prove that an irregularity has occurred: The Law of Evidence in Canada, at paras. 4.64-4.66; Martselos v. Salt River First Nation 195, 2008 FC 8, [2008] F.C.J. No. 13, at paras. 26-28, aff’d, 2008 FCA 221, [2008] F.C.J. No. 1053.

[69] The presumption of regularity has been applied in cases about Indigenous issues: LeCaine v. Canada (Registrar of Indian Affairs), 2013 SKQB 253, 424 Sask. R. 285, at para. 64, aff’d 2015 SKCA 43, 385 D.L.R. (4th) 694, leave to appeal refused, [2015] S.C.C.A. No. 258; Peter Ballantyne Cree Nation v. Canada (Attorney General), 2016 SKCA 124, 485 Sask. R. 162, at para. 175, leave to appeal refused, [2017] S.C.C.A. No. 95.

[70] The presumption may be of limited utility where a historical record is unclear or contradictory: Watson, at paras. 79, 84-86. I conclude that this presumption has a very limited role in this case, where there is affirmative evidence of routine Crown functions that does not show every step in the process, as discussed in context below.

Experts’ use of secondary sources

[71] Not all the opinions SON relies on were opinions from a testifying expert. Some come from papers or articles by non-testifying authors. An expert opinion expressed in a secondary source is not proved by simply citing the secondary source: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 251; Cowichan Tribes v. Canada (Attorney General), 2020 BCSC 1146, 41 B.C.L.R. (6th) 150, at paras. 17-26. The defendants have therefore raised an issue about opinions expressed in secondary sources.

[72] Canada and Ontario specifically object to some of the opinion evidence SON relies on from papers written by Dr. Victor Lytwyn. Dr. Lytwyn was not an expert witness in this trial. He is a historical geographer who was formerly employed by SON. Dr. Brownlie, an expert historian, and Dr. Driben, an expert anthropologist, cited some of Dr. Lytwyn’s papers in their expert reports. However, Dr. Brownlie and Dr. Driben did not adopt all of Dr. Lytwyn’s opinions.

[73] The evidentiary record includes many papers, articles and other secondary sources cited by one or more expert witnesses. Many are mentioned in footnotes to expert reports and were marked as exhibits, on consent. However, referring to a publication in an expert report does not incorporate by reference the entire publication: Cheesman v. Credit Valley Hospital, 2019 ONSC 5783, at para. 215.

[74] When a testifying expert did not adopt the opinion in a secondary source, I have not treated the secondary source as admissible evidence of that opinion.

Evidence of Indigenous Customary Law

[75] Before the British asserted sovereignty, Indigenous peoples had practices, customs and traditions[17] that are recognized as Indigenous customary laws: Marshall and Bernard, at para. 139, per Lebel J. (concurring).

[76] The Indigenous perspective on the occupation of land can be gleaned in part, but not exclusively, from those pre-sovereignty systems of Indigenous law: Marshall and Bernard, at para. 139, per Lebel J. (concurring); Delgamuukw, at para. 157.

[77] Expert opinion evidence about the practices, customs and traditions that form those Indigenous customary laws may be necessary to assist the court: Alderville, at paras. 46, 55. In this case, there is considerable expert evidence about historical practices, customs and traditions. SON relies largely on Anishinaabe practices, customs and traditions because SON has a shared culture with other Anishinaabe Indigenous peoples.

Constitutional framework

[78] Subsection 35(1) of the Constitution Act, 1982 provides the constitutional framework through which “the fact that [Aboriginal peoples] lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown” because “when Europeans arrived in North America, [Aboriginal peoples] were already here”: Van der Peet, at paras. 30-31 (emphasis in the original).

[79] As put by the Supreme Court of Canada, the Aboriginal rights recognized and affirmed by s. 35(1) must be directed towards a reconciliation of the existence of Aboriginal societies with the sovereignty of the Crown: Van der Peet, at para. 31.

[80] As discussed below, the starting point for the analysis of a claimed Aboriginal right is to ask whether there is a foundation for such a right at the time of the British assertion of sovereignty (agreed to be 1763 in this case). Whether there is the necessary foundation for the claimed Aboriginal right – here, Aboriginal title – is disputed in this case.

[81] In addition, for Aboriginal rights to be recognized and affirmed by s. 35(1), they must have existed in 1982, at the time of the enactment of the Constitution Act, 1982: Delgamuukw, at para. 172.

[82] When an Aboriginal right has been established as of 1982, the right has constitutional status because of s. 35(1): Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256, at para. 119.

[83] Given the constitutional status of Aboriginal rights, governments must justify overriding the wishes of an Aboriginal right-holder. To do so, the government must show the following:

(1) that it discharged its procedural duty to consult and accommodate;

(2) that its actions were backed by a compelling and substantial objective; and,

(3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group: Tsilhqot’in Nation, at para. 77, citing R. v. Sparrow, [1990] 1 S.C.R. 107.

[84] In keeping with these principles, if SON has Aboriginal title to the Aboriginal Title Claim Area, any incursion on that right must first be justified using the above test. This is important because of the claimed right to exclude all others from that part of Lake Huron and Georgian Bay, as discussed below.

[85] The Aboriginal Title Claim focuses on the time of the British assertion of sovereignty in North America, agreed to be 1763. SON’s Treaty Claim focuses on two treaties from a later time, in the 1800s. I have therefore addressed the claims in that order.

Part 3 - Aboriginal Title Claim

[86] In the Aboriginal Title Claim, SON seeks a declaration that SON has Aboriginal title to the lake bed forming part of Lake Huron and Georgian Bay. Aboriginal title is the subcategory of Aboriginal rights that deals with claims for rights to land: Van der Peet, at para. 74.

[87] This is a novel claim because SON seeks Aboriginal title to submerged land. The Canadian cases on Aboriginal title have not addressed submerged land.

[88] SON submits that the current test for Aboriginal title to (dry) land should be applied to their claim, specifically the test from Tsilhqot’in Nation, rather than considering whether they have established a foundation for this novel Aboriginal right. There is no issue that there may be Aboriginal title to dry land. For dry land, the only issue is whether the test is satisfied.

[89] The Tsilhqot’in Nation test is based on occupation of land prior to the British assertion of sovereignty. To ground Aboriginal title, the occupation of the claimed land must have been sufficient, continuous (where present occupation is relied on) and exclusive at that time: Tsilhqot’in Nation, at para. 50.

[90] SON acknowledges that the Tsilhqot’in Nation test “has developed from, and has only ever been applied to, cases evaluating whether Indigenous groups have Aboriginal title to dry land.” Based on the law presented in this case, that is so.

[91] Originally, the Tsilhqot’in Nation claim did include some submerged land, but that aspect of the claim was withdrawn before the case was heard at the Supreme Court of Canada: Tsilhqot’in Nation, at para. 9. A small part of the claim area had consisted of inland streams, rivers and lakes: Tsilhqot'in Trial Decision, at para. 1051.

[92] SON acknowledges that adapting the existing test from Tsilhqot’in Nation to their claim has its challenges. Yet SON submits that the only issue is whether they have proved their claim, applying the Tsilhqot’in Nation test to the submerged lands. They submit that they have done so.

[93] The defendants do not agree that the test in Tsilhqot’in Nation applies. However, they submit that even if it does, SON has not satisfied that test on the evidence in this case. The defendants therefore submit that I may find it unnecessary to decide the novel issue of whether there can be Aboriginal title to submerged land.

[94] I disagree with the suggestion that the novel issue can be avoided. The first question must be whether SON’s specific claim gives rise to an Aboriginal right.

[95] There is ample jurisprudence about the required legal steps to determine whether there is an Aboriginal right. As expanded on below, SON must prove that as of 1763 their ancestors had a connection with the submerged land that was of central significance to their distinctive culture. If so, I must consider whether that connection translates into a modern right, and if so, what right. The analysis of this novel issue brings out important questions about the nature of the land. The specific claim area is important – a large part of a Great Lake.

[96] I acknowledge that there is some overlap between this issue and the Tsilhqot’in Nation 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.

[97] I therefore first consider the issue of whether there can be Aboriginal title to the claimed submerged land. As expanded on below, I conclude that SON has not proved the required connection to the submerged land in this case. My conclusion relates to the specific area claimed by SON, in the Great Lakes. The outcome could be different for other submerged land, such as inland lakes, rivers and streams. SON’s claim area, including a part of Lake Huron up to the international boundary and half of Georgian Bay, gives rise to special challenges discussed below.

[98] I then address the Tsilhqot’in Nation test and SON’s submission that they have satisfied that test. I conclude that SON has not proved that they sufficiently occupied and controlled that part of the Great Lakes in the period leading up to 1763. The Tsilhqot’in Nation test has not been met.

[99] I now turn to the first issue: whether there is an Aboriginal right to title in the claimed lake bed.

Analysis of whether there is an Aboriginal right to title in the lake bed

[100] The Supreme Court of Canada has set out the necessary approach to determine whether there is an Aboriginal right. The claim must be decided on a specific, rather than a general, basis: R. v. Pamajewon, 1996 CanLII 161 (SCC), [1996] 2 S.C.R. 821, at para. 27.

[101] It is a case-by-case analysis: Van der Peet, at para. 69, per Lamer C.J.; Mitchell 2001, at para. 14, per McLachlin C.J., at para. 96, per Binnie J.; Marshall and Bernard, at para. 20.

[102] Justice Binnie summarized the steps in Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535, at para. 46. Although that case was not a claim for Aboriginal title, the following high-level steps still apply:

1. The court must identify the precise nature of the First Nation’s claim to an Aboriginal right based on the pleadings. If necessary, in light of the evidence, the claim may be refined on terms that are fair to all parties.

2. The court must determine whether the First Nation has proved, based on the evidence adduced at trial:

(a) the existence of a historical practice, custom or tradition advanced as supporting the claimed right; and,

(b) that this practice, custom or tradition was integral to the distinctive culture of the Aboriginal group.

3. The court must then determine whether the modern right claimed has a reasonable degree of continuity with the integral historical practice. The historical practices must engage the essential elements of the modern right, though the two need not be exactly the same.

[103] There is no issue that, in this case, the relevant time for the historical practice, custom or tradition is 1763 (the agreed on time of the British assertion of sovereignty).

[104] Before I turn to SON’s specific claim, I will review the other legal principles that will guide my findings of fact and legal conclusions.

Aboriginal rights fall along a spectrum

[105] Even though a historical practice may have some connection with land, it does not necessarily lead to Aboriginal title.

[106] Aboriginal rights “fall along a spectrum with respect to their degree of connection with the land”: Delgamuukw, at para. 138; Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4, 443 D.L.R. (4th) 1, at para. 27.

[107] Chief Justice Lamer described this spectrum in Delgamuukw, at para. 138, as follows:

At one end [of the spectrum], there are those [A]boriginal rights which are practices, customs and traditions that are integral to the distinctive [A]boriginal culture of the group claiming the right. However, “the occupation and use of the land” where the activity is taking place is not “sufficient to support a claim of title to the land”. Nevertheless, those activities receive constitutional protection.

In the middle, there are activities which, out of necessity, take place on land and indeed might be intimately related to a particular piece of land. Although an [A]boriginal group may not be able to demonstrate title to the land, it may nevertheless have a site-specific right to engage in a particular activity.

At the other end of the spectrum, there is Aboriginal title itself. What [A]boriginal title confers is the right to the land itself. [Emphasis in original; citations omitted.]

[108] This spectrum shows that there may be Aboriginal practices that use the land, yet do not give rise to Aboriginal title. Those practices may give rise to other Aboriginal rights. Fishing is a good example in this case. It may involve some use of land, but it gives rise to a different Aboriginal right – an Aboriginal fishing right. However, in this case, SON claims Aboriginal title – that is, a right to the land itself.

For Aboriginal title, the connection with the land must be of central significance

[109] For Aboriginal title, the Indigenous group’s “connection” with the claimed land must be of “central significance to their distinctive culture”: Delgamuukw, at para. 137, quoting R. v. Adams, 1996 CanLII 169 (SCC), [1996] 3 S.C.R. 101, at para. 26.

[110] The Aboriginal group must have had the required connection with the claimed land as of the assertion of sovereignty: Delgamuukw, at paras. 150-151, per Lamer C.J.; Marshall and Bernard, at para. 67, per McLachlin C.J.

[111] The geographic location of the claimed land is relevant when assessing the Aboriginal group’s connection with the land: Mitchell 2001, at para. 55. Further, where the claim implicates an international boundary, that also brings a geographic factor into the analysis: Mitchell 2001, at para. 60.

[112] Further, the practice, custom or tradition relied upon in a particular case must be independently significant to the Aboriginal group claiming the right. The practice, custom or tradition cannot be simply an incident of another practice of integral significance: Van der Peet, at paras. 46-55, 70 and 73; Marshall and Bernard, at para. 67, per McLachlin C.J. For example, the practice of fishing may not give rise to Aboriginal title: Marshall and Bernard, at para. 58, per McLachlin C.J.

Translation into a modern legal right

[113] When there is the needed connection with the land, the historical practice must still translate in to a modern, legal right. Chief Justice McLachlin set out important general principles that apply to determine whether a historical practice does translate into a modern, legal right in Marshall and Bernard, at para. 48:

• The court must “examine the pre-sovereignty [A]boriginal practice and translate that practice, as faithfully and objectively as it can, into a modern legal right. The question is whether the [A]boriginal practice at the time of assertion of European sovereignty …translates into a modern legal right, and if so, what right?”

• The court “must consider the pre-sovereignty practice from the perspective of the [A]boriginal people. But in translating it to a common law right, the court must also consider the European perspective; the nature of the right at common law must be examined to determine whether a particular Aboriginal practice fits it.”

• “This exercise in translating [A]boriginal practices to modern rights must not be conducted in a formalistic or narrow way. The court should take a generous view of the Aboriginal practice and should not insist on exact conformity to the precise legal parameters of the common law right. The question is whether the practice corresponds to the core concepts of the legal right claimed.”

[114] As set out above, the Chief Justice uses the term “translate” to describe the applicable principles. However, the defendants prefer different terminology, from earlier Supreme Court cases. Those cases speak of “incompatibility” with British sovereignty, and whether the practice is “cognizable”. As elaborated on below, I conclude that those earlier cases contribute to the meaning of “translate” and therefore the differing terminology does not change the analysis.

[115] With respect to “incompatibility”, the defendants rely on Mitchell 2001, a case with an international component. In that case, the Supreme Court referred to the principle that Aboriginal interests and customary laws were presumed to survive the assertion of sovereignty, and were absorbed into the common law as rights, unless they “were incompatible with the Crown’s assertion of sovereignty”: at para. 10, per McLachlin C.J.

[116] The defendants submit that the focus on incompatibility with the assertion of sovereignty is suited to this case, given that the Great Lakes and the international boundary are at issue. Mitchell 2001 also involved an international boundary. That case considered the right to bring goods across the St. Lawrence River for the purposes of trade.

[117] In Mitchell 2001, the unanimous court dismissed the claim for lack of proof. The majority therefore declined to address the issue of incompatibility with British sovereignty: at para. 64, per McLachlin C.J. However, in his concurring decision, Binnie J. expanded on the incompatibility analysis.

[118] Justice Binnie observed that prior to Calder v. Attorney-General of British Columbia, 1973 CanLII 4 (SCC), [1973] S.C.R. 313, sovereign incompatibility had been given excessive scope and it was therefore a doctrine that had to be applied with caution: at para. 151. He concluded that it continued to be an element in the analysis, but that it would be applied sparingly because most rights claimed do not give rise to legitimate sovereignty issues: at para. 154. However, Binnie J. concluded that the right claimed in that case was incompatible with Canadian sovereignty. Control of a border is an incident of sovereignty, and the state is expected to exercise it in the public interest: Mitchell 2001, at paras. 160, 163.

[119] Justice Binnie’s discussion in Mitchell 2001 is still the most detailed discussion of the role of sovereign incompatibility. The issue has come up in later cases but has not been elaborated on in those cases: see, e.g., R. v. Desautel, 2021 SCC 17, 456 D.L.R. (4th) 1.

[120] SON submits that the common law criteria for the recognition of local customs should be applied to issues involving incompatibility. SON put forward various cases that deal with local customs ranging from the Irish custom of tanistry[18] to a dispute about ownership of a royal palace: The Case of Tanistry, (1608) Davis 28, 80 E.R. 516, reprinted with introduction in [2001] AU Indig. Law Rpr. 37; Oyekan v. Adele (West Africa), [1957] UKPC 13 (26 June 1957) at 3, [1957] 2 All E.R. 785 at p. 788 (P.C.).

[121] SON submits that the common law criteria result in a less exacting standard of reasonableness. This is an over-simplification of what is called “traditional British colonial law”: Mitchell 2001, at para. 144, per Binnie J. Reasonableness is just one aspect of the test for the incorporation of local customs into the common law.

[122] SON accepts that for the local custom to be incorporated into the common law, it must fulfill all of these requirements:

(l) it must “have been used so long, that the memory of man runneth not to the contrary”;

(2) it must have been “continued”;

(3) it must have been “peaceable, and acquiesced in, not subject to contention and dispute”;

(4) it must be “reasonable; or, rather taken negatively,…must not be unreasonable”;

(5) it must be “certain”;

(6) it must be “compulsory”; and

(7) customs must be “consistent with each other”.

Sir William Blackstone, Commentaries on the Laws of England (Philadelphia: J.B. Lippincott Co., 1893), Vol. 1, at pp. 76-78.

[123] Reasonableness is certainly part of the above test. However, when looking at the entirety of the above test, I do not agree with SON that it is less exacting than incompatibility.

[124] The next term to consider is “cognizable”, which arises in Van der Peet, at para. 49. The Supreme Court noted that in assessing a claim for the existence of an Aboriginal right, the Aboriginal perspective must be framed in terms that are “cognizable” to the Canadian legal and constitutional structure. This terminology does not add significantly to the discussion in either Mitchell 2001 or Marshall and Bernard. The relevant concepts are already part of the analysis.

[125] I conclude that it is not necessary to pick between the above cases and terminology to address the issues in this case. Asking the question as it was put by the Chief Justice in Marshall and Bernard – does the Aboriginal practice “translate” into a modern legal right? – allows for the consideration of compatibility with sovereignty, or whether something is “cognizable”, to the extent that those terms draw in relevant considerations.

[126] In order to translate into a modern legal right, the pre-assertion of sovereignty practice must engage the essential elements of the claimed modern right, taking a generous though realistic approach: Lax Kw'alaams Indian Band, at para. 46. There must then be reasonable continuity between that connection as of the assertion of sovereignty and the contemporary claim: Mitchell 2001, at para. 26, per McLachlin C.J., citing Van der Peet.

[127] Underlying all these issues is the need for “a sensitive and generous approach to the evidence tendered to establish [A]boriginal rights, be they the right to [Aboriginal] title or lesser rights to fish, hunt or gather”: Marshall and Bernard, at para. 68, per McLachlin C.J.

SON’s specific claim

[128] I now consider SON’s specific claim. The main issues are the following:

(i) the nature and scope of the claimed right, specifically Aboriginal title to submerged land in Lake Huron and Georgian Bay;

(ii) the potential impact of the claimed right on the public right of navigation; and,

(iii) the significance of the in-water boundaries of the claim area.

The nature and scope of the claimed right

[129] SON must identify the claimed right specifically, not just generally. That process begins with the pleadings: Lax Kw'alaams Indian Band, at paras. 40-46; Mitchell 2001, at para. 15, per McLachlin C.J., citing Van der Peet, at para. 5.

[130] In this case, SON claims Aboriginal title. The Statement of Claim defines the specific geographic claim area in Lake Huron and Georgian Bay.

[131] SON claims the same rights to these submerged lands that would be included in Aboriginal title to dry land. It is therefore useful to expand on those rights. The scope of Aboriginal title to dry land is well-established.

[132] Aboriginal title is a sui generis (unique) interest in land: Tsilhqot’in Nation, at para. 72; Delgamuukw, at paras. 111-112, per Lamer C.J., at para. 190, per LaForest J. It is the unique product of the historical relationship between the Crown and the Aboriginal group in question: Tsilhqot’in Nation, at para. 72, per McLachlin C.J. As with other Aboriginal rights, it must be understood from both Aboriginal and common law perspectives: Tsilhqot’in Nation, at para. 14, per McLachlin C.J.; Delgamuukw, at para. 112, per Lamer C.J., at para. 190, per La Forest J.; Marshall and Bernard, at paras. 46-48, per McLachlin C.J.

[133] Aboriginal title is a collective right to land. All members of a First Nation hold it, not only for the present generation but also for all succeeding generations: Tsilhqot’in Nation, at para. 74, per McLachlin C.J.; Delgamuukw, at para. 115, per Lamer C.J. As a result, it cannot be alienated other than to the Crown: Tsilhqot’in Nation, at para. 74, per McLachlin C.J.; Delgamuukw, at para. 113, per Lamer C.J.

[134] For dry land, a First Nation with Aboriginal title has the right to use and control the land and to reap the benefits flowing from it: Tsilhqot’in Nation, at paras. 2, 70. This includes the right to choose the uses the land can be put to, including using the land in modern ways, provided that the uses are not irreconcilable with the nature of the group’s attachment to that land, and the right to enjoy the land’s economic fruits: Tsilhqot’in Nation, at paras. 75, 88, per McLachlin C.J.; Delgamuukw, at paras. 111, 117, 124 and 166, per Lamer C.J. The Aboriginal titleholder is not limited to historic uses of the land.

[135] Most significantly for this case, Aboriginal title includes the right to exclusive use and occupation of the land: Tsilhqot’in Nation, at paras. 67, 88, per McLachlin C.J.; Delgamuukw, at paras. 110, 117 and 166, per Lamer C.J. As a result, the Aboriginal titleholder has the right to exclude all other people from the land.

[136] In this case, SON claims the right to exclude all other people from a large part of Lake Huron, including about half of Georgian Bay, right up to the international boundary. This right to exclude would apply not only to recreational use, but also to commercial uses and for national defence. Any limitation on Aboriginal title must satisfy the justification test under s. 35(1) of the Constitution Act, 1982.

[137] SON submits that some uses of the lake area by other people would be justifiable and that other uses would not be. For example, SON does not agree that the activities normally permitted by the public right of navigation, described below, would be justifiable under s. 35(1). However, SON submits that use for national defence would be easily justifiable. But that use would still have to be justified, and that process begins with advance consultation before actions regarding national defence could be taken.

[138] The nature and scope of the claimed Aboriginal title therefore gives rise to a significant issue about SON’s claim for the right to exclude everyone else from the area. The public right of navigation is central to the defendants’ objections to the concept of Aboriginal title to a part of the Great Lakes. I therefore discuss the scope of that public right below.

The scope of the public right of navigation

[139] The public right of navigation is an important right. That right provides for reasonable public use of navigable waters.

[140] In Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, La Forest J. summarized the common law about the public right of navigation and noted that “if waters are navigable in fact, whether or not the waters are tidal or non-tidal, the public right of navigation exists”: at pp. 53-55.

[141] There is sometimes an issue about whether or not the water is navigable: see, e.g., Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, 132 O.R. (3d) 497, at paras. 19-21, 35. There is no issue about navigability here – obviously, the Great Lakes are navigable.

[142] The public right of navigation is not a property right. It is a public right of way. Nor is it an absolute right. It must be exercised reasonably, so as not to interfere with the rights of others: Friends of the Oldman River, at p. 54.

[143] This public right encompasses a “right of reasonable passage for public purposes” along a waterway, akin to the public right of passage on a highway, and it entitles the public to use the waterway as a means of transportation: Middlesex Centre, at para. 17. The public does not have the right to go across private land to get onto or leave a navigable waterway, but must access the waterway from a point of public access: Middlesex Centre, at para. 22.

[144] The right does not extend to use for “purely private purposes” or to other uses such as fishing, hunting, irrigation or trapping: Middlesex Centre, at para. 17; Rice Lake Fir Co. Ltd. v. McAllister, [1925] O.J. No. 150 (C.A.), at p. 5; G.V. La Forest and Associates, Water Law in Canada: The Atlantic Provinces (Ottawa: Regional Economic Expansion, 1973), at p. 182. Nor does the right of reasonable passage authorize acts inconsistent with the rights of owners, such as pollution: Water Law in Canada, at pp. 182-183.

[145] The public right of navigation is paramount: Friends of the Oldman River, at p. 54. However, SON claims Aboriginal title that would foreclose this public right. Given the geographic location of the Aboriginal Title Claim Area, the potential impact on the public right of navigation is important in this case.

The significance of the in-water boundaries of the Aboriginal Title Claim Area

[146] The geographic location of SON’s Aboriginal Title Claim Area is important, not simply because of its potential impact on the public right of navigation. In addition, the geographic location must be connected to the historical practices relied upon by SON. In this case, the claim area is not connected to SON’s historical practices. Instead, much of the claim area is based on the international boundary, modern agreements and other considerations.[19]

[147] This would not be an issue if SON had chosen an area that is smaller than the area connected to their historical practices. However, here, the in-water boundaries surround an area that is much larger than any SON connection to the claimed land.

[148] The eastern boundary, which runs down the middle of Georgian Bay, is not based on SON’s historical traditional use. SON submits that they selected the boundary out of respect for other First Nations, although the interests of other First Nations are not established by evidence.

[149] The southern boundary of the Aboriginal Title Claim Area in Lake Huron is the subject of a 2011 boundary agreement with other First Nations, prompted by this litigation. SON puts forward Penn v. Lord Baltimore (1750), 1 Ves. Senn. 444, [1558-1774] All E.R. 99, for the proposition that the boundary reflected in this agreement should be presumed to be an ancient boundary. However, in Penn, the parties to the agreement were in a dispute with one another. That is not the case here. The defendants are not parties to the boundary agreement. SON has not proved that the southern boundary in Lake Huron was a relevant boundary in 1763.

[150] Other aspects of the boundaries of the Aboriginal Title Claim Area were selected due to other litigation or claims by other First Nations.

[151] Finally, the international boundary forms the western border of the Aboriginal Title Claim Area. That international boundary did not exist in the 18th century and is not based on SON traditional practices as of 1763. SON submits that as a practical matter, there was no point in going beyond that boundary since the court could not grant any relief beyond it. That position would be more consequential if SON’s traditional use of the area extended at least as far as that boundary, but it does not.

[152] SON further submits that the choice of the international boundary is consistent with United States treaty practice, including treaties that extend to that boundary in three of the Great Lakes. However, those treaties are a small portion of U.S. land cession treaties and were all entered into in the 19th century, well after the relevant time period of 1763. Further, the evidence does not prove that the U.S. had the treaty-making practice suggested by SON.

[153] Mr. Chartrand, an expert ethnohistorian and anthropologist, testified about the U.S. treaties relied on by SON. The following treaties included parts of the Great Lakes: Detroit (1807), Saginaw (1819), Sault Ste. Marie (1820), Washington (1836) and La Pointe (1842). Mr. Chartrand also testified about the many important events that took place in the United States leading up to the time period relevant to these U.S. treaties, well after 1763. I approach his evidence in this area with caution because of the limits on his qualifications. However, much of his evidence about basic events in the United States was confirmed by other experts.

[154] Mr. Chartrand reviewed over 200 U.S. treaties. Twelve of them had boundaries in submerged land. Of those, five treaties addressed an area that extended into the Great Lakes. The remaining treaties in the Great Lakes area ended at the shores of the lakes.

[155] With respect to another U.S. treaty, the 1795 Treaty of Greenville, the issue of whether it extended into Lake Erie was addressed in Ottawa Tribe of Oklahoma v. Logan, 541 F. Supp. 2d 971 (N.D. Ohio 2008), at pp. 980-981, aff’d, 577 F.3d 634 (6th Cir. 2009). The District Court found the language of the treaty insufficient to grant part of Lake Erie. The court further noted that the U.S. Supreme Court had held that for navigable waters, there is a strong presumption that a sovereign government, like the United States, would not grant away title to such property.

[156] These themes of the importance of navigable waters and the Great Lakes also arise in British and Canadian common law, discussed below.

[157] The reason for including parts of the Great Lakes in a small number of 19th century U.S. treaties is not clear from the historical evidence. However, there is no question that there were major events preceding those treaties. Those events included the following: the American War of Independence, concluding with the 1783 Treaty of Paris that recognized the United States as an independent country; the Jay Treaty of 1794 between the United States and Great Britain; the Treaty of Greenville of 1795 between the United States and the Wyandot and other Indigenous peoples of the Northwest region of the United States; and, the War of 1812 between the United States and Britain, concluding with the Treaty of Ghent in 1814.

[158] Mr. Chartrand also expressed opinions about the geopolitical factors that could have motivated the U.S. to enter into the treaties relied on by SON. SON has challenged his expertise to give those opinions. Having reviewed the evidence, I find that I need not rely on Mr. Chartrand’s opinions about those geopolitical factors. The other evidence about the above events, and changes in U.S. Indigenous policy over the period, amply show that I ought not infer that the few U.S. treaties relied on by SON were motivated by a recognition of Aboriginal title. The evidence also does not show a general U.S. treaty-making practice regarding the Great Lakes or international boundaries. Further, there is ample evidence showing that U.S. treaty-making practices were different from the British practices, both in process and in the constitutional backdrop. I therefore do not find that SON’s choice of the U.S. boundary is consistent with U.S. treaty-making practices.

[159] SON’s respectful approach to boundaries, and other practical considerations, explain their boundary choices. However, SON must still prove their connection with the land that forms the Aboriginal Title Claim Area, within the chosen boundaries.

SON’s distinctive culture

[160] SON must prove a connection with the claimed land that was of central significance to their distinctive culture in 1763. My discussion about SON’s culture begins with the Anishinaabe people and their practices, customs and traditions. Members of SON identify as Anishinaabe, both now and in the distant past. SON relies extensively on their Anishinaabe identity.

[161] In addition to identifying as Anishinaabe in 1763, SON had kinship groups called clans. SON members were also part of their local Indigenous groups or bands, which are now called First Nations.

[162] The factual and legal issues in the Aboriginal Title Claim relate to the way that the ancestors of SON made decisions in and before 1763. For the Anishinaabe people, including SON, decisions were made at the band level, as discussed below.

The Anishinaabe people

[163] In closing submissions, SON defined “Anishinaabe” as “a term used by many Indigenous groups who lived in the Great Lakes region to describe themselves and their larger cultural community”. I accept that definition, which is well-supported by the evidence.

[164] Anishinaabe people are sometimes described as nomadic, but they are more specifically understood as people who had a defined seasonal round of activities and locations, where they would hunt and fish and harvest each year. As well, Anishinaabe people did relocate from time to time, as discussed below.

[165] As Dr. Driben testified, there are between 200 and 250 Anishinaabe Indigenous groups in the United States and Canada, in the Great Lakes region (including the two that are SON).

[166] There were several Indigenous groups that identify as Anishinaabe in the Great Lakes region at the time of the assertion of British sovereignty in 1763. However, not all Indigenous groups in the Great Lakes region were Anishinaabe. Dr. Driben referred to this map, which illustrates various Indigenous groups in the area at that time:

[167] This map shows Anishinaabe Indigenous groups, such as the groups described as Mississauga Ojibwa, Ottawa and Pottawatomi,[20] but also Indigenous groups that were not Anishinaabe, such as the Six Nations. The Six Nations were Haudenosaunee, also known as Iroquois. There were other groups such as the Huron-Wendat, the Neutrals and the Tionontati. Conflicts with the Haudenosaunee form part of the history relevant to this case, discussed below.

[168] The division between Anishinaabe and Haudenosaunee is reflected not only in their culture, but also in their language. The Anishinaabe spoke Anishinaabemowin, [21] an Algonquian language. The Haudenosaunee and other groups spoke languages described as Iroquoian.

[169] SON put forward evidence discounting the value of the names of Indigenous groups historically, because the names were a means of Europeans distinguishing between Indigenous groups. However, throughout the trial, SON, the defendants, experts and other witnesses used those names. Names such as Ojibway (and Ojibwe and Ojibwa), Odawa (and Ottawa), Pottawatomi, and Haudenosaunee (and Iroquois) were often used. These names are therefore needed to address the trial evidence, but I have taken care to consider the evidence about the origin and various uses of the names.

[170] The two First Nations that are SON are among the many Indigenous groups that are Anishinaabe. Members of SON identify as Ojibway, but also include members with Ottawa and Pottawatomi descent.

Dodems

[171] The Anishinaabek[22] also have kinship groups called Dodems (or “clans” in English). Dodems are inherited from one’s father, and they are named after a symbolic animal, bird or fish. Most of the SON community witnesses named their Dodems in their testimony. For example, Dale Jones testified that he is a member of the Otter clan and Ted Johnston testified that he is a member of the Marten clan. These relationships extend across the Anishinaabe. As Karl Keeshig testified, he is a member of the Wolf clan, which means that all other Anishinaabe people of the Wolf clan are his family, be they in Winnipeg, Wisconsin, Florida or British Columbia.

[172] Some of the Dodemic identities first noted by Europeans in the early 17th century are still present among SON members today.

Indigenous groups or bands

[173] SON members also identify as part of their particular Indigenous group, now the two First Nations who are the named plaintiffs in this litigation. Historically, these small, local, economic and socio-political Indigenous groups were often called bands. Now, they prefer to be called First Nations.

[174] The historical documents usually speak of these First Nations as bands or tribes. The term “band” was used most frequently in the evidence. These terms also have modern uses. “Band” was and still is a defined term in the Indian Act, R.S.C. 1985, c. I-5, s. 2(1). The United States’ legal framework uses the term “tribe”. SON used both of these terms, in context, during the trial. Similarly, these reasons use “band” and “tribe” and “Indigenous group” to address the historical evidence, not to disregard the modern preference in Canada for the term “First Nation”.

[175] In 1763, these Indigenous groups, or bands, were the decision-making groups. I agree with SON that the band was the central political unit for Anishinaabe people.

[176] Decisions affecting a band were based on consensus, but these decisions did not require unanimity. Everyone in the band could express an opinion, and once a clear view emerged, the Chief would act in keeping with that view. Bands did not have institutions such as the military or the constabulary to force band members to comply.

[177] SON relies on their role in certain wars in their Aboriginal Title Claim. Decisions about going to war were made at the band level. However, even if the band was inclined to participate, individuals were allowed considerable autonomy in deciding whether they would participate. A warrior could decide at any point not to participate at all, or to withdraw. He had the right to leave, even in the middle of combat.

[178] Historically, bands sometimes grouped together for specific reasons. SON relies on their historical participation in an alliance called the Three Fires Confederacy.

Three Fires Confederacy

[179] The Ojibway, Ottawa and Pottawatomi had what Dr. Driben described as a loose association with some political, military and economic objectives. It was called the Three Fires Confederacy or Council. It was an impermanent alliance that was specific to certain issues, conflicts, hostilities and interests. As put by Dr. Driben, the participants would come together as need be, and they would remain as long as required. They would then disperse. Ojibway, Ottawa and Pottawatomi bands did not necessarily take part in the Confederacy. Individual bands took part at different times when it suited their interests.

[180] The Three Fires Confederacy existed mostly in the Upper and Lower Michigan Peninsulas, in the 1600s and 1700s. SON submits that their ancestors were part of that Confederacy.

[181] There is some oral history in this regard, without much evidence about the source of the oral history or how it was passed down from SON’s ancestors. Most specifically, Karl Keeshig testified that SON was part of the Confederacy in response to the Beaver Wars (also known as the Iroquois Wars), which took place in the 1600s. Others also said that SON was part of the Confederacy.

[182] Unlike the other community evidence, which related to the distant past, Frank Shawbedees testified in 2002 that he was personally part of the Confederacy. However, the extensive evidence does not support a role for the Confederacy in the 19th or 20th century events that are relevant to SON’s claims. Dr. Driben testified that it no longer exists, and he was unable to say if SON took part in any of the Three Fires Confederacy councils in the past. Dr. Reimer is an expert anthropologist and ethnohistorian. She found no references in published sources about any role of the Three Fires Confederacy in SON’s Aboriginal Title Claim Area or in any of the territory that was surrendered in either Treaty 45½ or Treaty 72.

[183] Considering all of the evidence, I find that SON’s ancestors were part of the Three Fires Confederacy in relation to the Beaver Wars in the 17th century, but not in more recent times or for other events relevant to the case.

[184] Further, the Three Fires Confederacy did not displace local band decision-making about the key events in this case in the 18th and 19th centuries. Membership in the Three Fires Confederacy did not affect the political autonomy of the individual bands within their own territory. I agree with SON that bands within the Three Fires Confederacy were independent and free to act on their own.

[185] At least as of the time of contact with Europeans, the Three Fires Confederacy had no role in decision-making concerning lands or resources within individual bands’ local territories. The Indigenous groups that were members of the Three Fires Confederacy did not have to consult with each other or to seek permission for decisions in their own territory. As put by Dr. Driben, it was the band’s prerogative to make those decisions.

Other Anishinaabe alliances

[186] Karl Keeshig spoke of an Anishinaabe “nation” arising from the Creation Story, which he connected to Anishinaabe spiritual beliefs and related practices, customs and traditions. However, SON does not submit that there was an Anishinaabe nation that made decisions for them or for all Anishinaabe in the relevant time period. As put by SON, the Anishinaabe people are a nation in the cultural sense, with no corresponding political manifestation.

[187] SON suggests that there was an alliance or co-operative effort among Anishinaabe to take certain steps to control access to the Great Lakes in the 18th century. The evidence does not prove the existence of such an alliance in the 18th or 19th century (or control of all the access points).

[188] Beginning in the 19th century, some Ojibway met periodically in General Councils to discuss matters of shared interest. Chiefs and principal men of various bands met, along with others, sometimes including missionaries and representatives of the Crown. Ancestors of SON took part in at least some of those General Councils, as discussed below. However, I agree with SON that General Councils did not displace band authority to make decisions.

[189] In summary, as put by Dr. Driben, the band was the fundamental decision-making unit and landholding unit and “the most critical organization that you can understand when you’re looking at Anishinaabe people”. Decisions about land use were made at the band level.

[190] I expand on SON’s distinctive culture below, discussing the practices, customs and traditions that SON relies on for their Aboriginal Title Claim.

SON’s historical practices, customs or traditions

[191] SON must show that they had a practice, custom or tradition in 1763 that gave rise to a connection with the claimed land that was of central significance to their distinctive culture. For Aboriginal title, the connection must be with the land. To prove the required connection with the claimed land, SON mainly relies on the Anishinaabek spiritual connection with water and on fishing. Neither activity required substantial use of the land, as discussed below.

[192] This is not a case where the claimants collected plants, minerals or other useful or significant substances from the submerged land. That did not take place. There is some evidence about harvesting wild rice in an inland area, but not in the Aboriginal Title Claim Area. There is also some evidence, especially from Dr. Reimer, from which I infer that certain types of fishing nets had weights or anchors that could sink to the bottom of the lake. Most of that evidence is from the 19th century or later, but some version of the weights could have been used as early as 1763. However, any touching of the lake bed through fishing would have been close to shore at that time, not in the expanse of open water in the Aboriginal Title Claim Area. It was at best a minor use of the claimed lake bed. As well, it was connected to fishing, a different Aboriginal right. Aboriginal title is not needed for that activity.

[193] I do not consider the lack of evidence of actual use of the lake bed to be determinative. An obvious characteristic of submerged land is that it is covered by water and SON submits that the water and lake bed are regarded by them as one. SON is not seeking ownership of the water itself, although SON does seek control of the water and ownership of whatever passes through it, such as fish.

[194] SON’s evidence about their connection with what they describe as their water territory is founded on the spiritual connection that Anishinaabe people have with water.

Anishinaabe spiritual connection with water

[195] SON relies on historical practices that involve a sacred responsibility to care for and protect the water, to pray for the water, to conduct ceremonies for the water and to honour the water. SON submits that their practices were based on a connection to water that has subsisted for thousands of years, and that their practices include a right to make decisions about water territory and an obligation to protect the territory for future generations.

[196] SON’s closing submissions began with the Creation Story, emphasizing its importance to SON. Karl Keeshig told the Creation Story at trial.[23] Karl Keeshig is a member of SON, a follower of the Midewin faith and a member of the Midewin Lodge. He is a Third Degree Midewin and Lodge Director. As he explained in his testimony, the Midewin Lodge is roughly analogous to a church for followers of the Midewin faith. He testified that the membership of his Midewin Lodge was growing and that all Anishinaabe were welcome there. I found Karl Keeshig’s evidence about the Midewin faith deserving of substantial weight.

[197] There is no question that water forms part of the spiritual teachings of the Midewin faith. The Creation Story, which is sacred to the Anishinaabe, is part of those teachings.

[198] As told by Karl Keeshig, the Creation Story begins before the beginning, when the Creator breathed life into his creation of all living things. The creation of humans came last, when the Creator created four people of different races. Although three of those people left the Creator swiftly, the Indigenous person stayed longer because he did not want to leave the Creator (referred to as his Grandfather). Karl Keeshig then referred to the Indigenous person as “Anishinaabe”.[24] The Anishinaabe person was then sent through four levels of creation, specifically the Water Level, the Sky Realm, the Earth Level and “Mideaaking” or the realm of the Mide spirit (which relates to the Midewin faith). The Water Level was said to have the most beautiful lake that is the source of water for all creation. The Creator told Anishinaabe to name all in creation, which he did, and gave him responsibility to preserve the Earth for future generations. The Creator also gave the Anishinaabe tobacco as a way to call upon the Creator when needed.[25]

[199] Water was one of the four levels of creation in the Creation Story. Water is therefore significant to Anishinaabe people. The Creation Story also shows that from a spiritual standpoint, the Anishinaabe were given responsibility to care for and preserve the Earth.

[200] Vernon Roote, former Chief of Saugeen First Nation, testified that it was their job to keep Mother Earth clean, including the land, air and water, which had equal importance. He explained that water was important because it gave them life in childbirth, and by providing food through fish. He said that his people did not look at boundaries because they were all there as part of Mother Earth. That was their belief system. Karl Keeshig testified that when he saw his mother, the Earth, she included the air, the water and the land.

[201] With respect to the significance of water, SON also relies on a speech made to an English trader in 1761, by Chief Minweweh,[26] who was not a member of SON but of the Ojibwas of Mackinac Island.[27] The Chief said as follows: “These lakes, these woods and mountains, were left to us by our ancestors. They are our inheritance: and we will part with them to none. Your nation supposes that we, like the white people, cannot live without bread - and pork - and beef! But, you ought to know, that He, the Great Spirit and Master of Life, has provided food for us, in these spacious lakes, and on these woody mountains”.

[202] Chief Kahgee also spoke about their overall responsibility to land and water, which came from the Creation Story. However, he testified that he regards the responsibility to care for SON territory in particular as specific to SON. I accept his current belief, but it does not extend to a historical practice as of 1763 that was geographically specific to the Aboriginal Title Claim Area. The Creation Story gave the Anishinaabe overall responsibility to preserve the Earth.

[203] Both Dr. Reimer and Dr. Driben opined that it was almost certain that the Anishinaabek included water territories in their band territories in and before 1763. However, this was not a connection with the submerged land. As put by Dr. Driben, from the Anishinaabe perspective, it included the right to use and enjoy the resources, including rights over things that had a value for trade such as fish. The SON connection with fishing is strong, is part of SON’s claim for Aboriginal title and is discussed below.

[204] Joanne Keeshig testified about the role Anishinaabe women carry out with respect to water. Like Karl Keeshig, she is a Third Degree Midewin and a member of a Midewin Lodge. She testified about the resurgence of the Midewin Lodge beginning in the 1970s. I found her evidence about her faith deserving of significant weight.

[205] Joanne Keeshig’s evidence also spoke of the Creator. The Creator gave Anishinaabe women the primary responsibility to care for water. Anishinaabe women perform water ceremonies. In Joanne Keeshig’s view, if the Anishinaabe did not conduct water ceremonies, they would become disconnected from their purpose in life.

[206] The water ceremonies were usually not held on or in the water. The main exception relates to a specific location on the Peninsula, Nochemowenaing,[28] where there were ceremonies on the water. Nochemowenaing means “healing place” and the place included the healing waters and the (dry) land at that location. The dry land is a point that is shown on some maps in evidence.[29] It is on the Georgian Bay side of the Peninsula, in the Hope Bay area. However, the maps do not identify the area of the healing waters.

[207] Nochemowenaing was a very significant place from the Indigenous perspective, both as of 1763 and in more modern times. The waters at Nochemowenaing were and are believed to have healing qualities.

[208] Nochemowenaing is also one of many burial sites on the Peninsula. Substantial archaeological investigations have taken place in the area, revealing historical evidence dating back to the 17th century. The burial places discovered through archaeological investigations at that site were not in the submerged land. However, a 17th century pendant depicting Mishipizheu, a powerful underwater creature, was found at Nochemowenaing.

[209] Karl Keeshig testified that when the Anishinaabe migration reached Nochemowenaing, a great meegis[30] shell surfaced and blessed the land, and it bestowed medicinal properties in the plants. When it went back underwater, it created a great whirlpool, which formed part of the one water ceremony that took place on the water.

[210] Karl Keeshig testified about this ceremony, based on oral history. People seeking healing were put in canoes and would be pushed toward the great whirlpool. And “the whirlpool would do one of two things. It would either take the canoe and end the life of the one that was seeking healing. If that be the case, then it was the Creator’s will … But if it pushed them back and it didn’t take the canoe, then their time was not done here. And they would retrieve them, do ceremony, and go and pick the medicines, find the medicines that the one that was in need required.”

[211] I accept that this ceremony formed part of the Midewin faith in 1763, and was a practice, custom or tradition of the Anishinaabe people, including SON. The ceremony did not continue unchanged into the 20th century, nor does it need to do so.

[212] Joanne Keeshig recounted one modern ceremony, which has been performed since 1994, that includes going out on the water at Nochemowenaing. The ceremony includes preparing two bundles of food and tobacco, one for the land and one for the water. The bundle for the water includes a rock to weigh it down. The women sing songs and paddle out to the whirlpool (the strength of which has now subsided) and place the bundle into the water.

[213] Nochemowenaing continues to be a significant spiritual location for the Anishinaabe people, with respect to both the dry land and the submerged land.

[214] While women perform most water ceremonies, some are performed by men. For example, Marshall Nadjiwan testified that as a pipe carrier he gave prayers and did ceremonies including an annual ceremony at the water’s edge to ask for help from the water spirits. He testified that if the water was getting polluted, he had to do the annual ceremony, which could renew the bottom of lakes. As well, some witnesses described the practice of scattering tobacco on the water when fishing, to pay respect to the water and the spirit of the fish. SON described this as the spiritual aspect of fishing. Chief Roote testified that they would also scatter tobacco on the water in a non-ceremonial manner, as a way to be aware of the importance and cleanliness of water and to give thanks.

[215] Joanne Keeshig also testified about a recent practice of water walks, beginning in the early 2000s. She first took part in a water walk in 2004 in the State of Michigan. She then took part in a water walk in Ontario a year or two later. She testified about Josephine Mandamin, an Elder from another First Nation, who was walking around Lake Huron, starting at Sault Ste. Marie. Joanne Keeshig joined the water walk after taking part in a water ceremony at Nochemowenaing. She testified that the walk was like a relay, with a man (carrying an eagle staff) and a woman (carrying a pail of water), with tobacco, singing and praying for the water as they walked along the shore. The pair would then hand the water and eagle staff along to the next pair of walkers. She and others had performed the water walk along part of the Lake’s perimeter in order to spread awareness about their role and the importance of water.

[216] Water spirits were also an aspect of the Anishinaabe relationship with their environment as of 1763. Karl Keeshig testified that there were water spirits everywhere, and that movements in streams, lakes, whirlpools and eddies were the physical manifestation of the water spirits. He testified that the water spirits are felt more strongly at some locations, including Nochemowenaing.

[217] Exclusivity is an aspect of Aboriginal title. The Anishinaabe spiritual connection with water did not and does not have, as a part of the ceremony or connection, the need for exclusivity.

[218] Focusing on the water ceremonies, the Nochemowenaing water ceremony involved going out on the water at that location. The spiritual aspect of fishing took place on the water. The other water ceremonies addressed in the evidence did not require going out on the water. Nor did the other ceremonies necessarily have to be held at the water’s edge or in any specific location. As put by SON’s counsel, some ceremonies could be done with tap water away from the shoreline, but others could not. Joanne Keeshig testified, however, that she would think that if they wanted to pray for the water at Bruce Nuclear, they would have to go over there.

[219] Viewing the evidence from the Aboriginal perspective, I find that the Anishinaabe people had a spiritual connection with water in 1763, including a belief that they had responsibilities to all water including the water in lakes and rivers in their territories. In that way, the water formed part of their spiritual beliefs. I infer from the evidence that ancestors of SON embraced those spiritual beliefs as of 1763. For some current SON members, that spiritual connection continues today.

[220] The significant spiritual connection to the water was part of the distinctive culture of all Anishinaabe in the Great Lakes area in 1763 and related to all waters. It extended well beyond SON and the Aboriginal Title Claim Area. Other than for Nochemowenaing, SON has not proved that this aspect of their culture required title to the lake bed in 1763, or does now. Nor does the connection require exclusive use of the water spaces generally or the Aboriginal Title Claim Area in particular. I discuss Nochemowenaing further below.

[221] SON relies on other connections with the claim area to prove their claim to Aboriginal title, mainly through fishing.

Does fishing support a connection with the claimed land?

[222] SON submits that fishing is a core part of SON’s identity and supports their claim for Aboriginal title to the Aboriginal Title Claim Area.

[223] The evidence shows that SON’s primary relationship to the Aboriginal Title Claim Area is with respect to fishing. I agree, as put by SON, that they are “a fishing people”. Both historically and going forward to contemporary times, SON has relied heavily on fishing for sustenance and, at least for some of the time, for trade and commercial purposes. The Aboriginal Title Claim Area includes significant fishing locations, such as at the mouth of the Saugeen River and Colpoy’s Bay. The Fishing Islands have also been an important area for SON’s fishing, though the islands themselves are not part of the Aboriginal Title Claim Area. The Fishing Islands were surrendered in 1885.

[224] Although important, fishing has a limited connection to the claimed land.

[225] SON’s evidence shows that their fishing was mainly in specific locations. SON’s evidence includes modern fishing activities, on the basis that today’s fishers learned from their relatives and knowledge holders and that today’s fishing practices are tied to the past. Even in modern times, fishing is usually close by the Peninsula. It does not extend, to a significant degree, through the majority of the Aboriginal Title Claim Area.

[226] As of 1763, SON ancestors fished from the shore, using small crafts such as canoes or bateaux, and using nets. The offshore geographic reach of fishing as of 1763 was not substantial. Fishing was done in shallow water and using islands as bases.

[227] The outer reaches of the Aboriginal Title Claim Area, well into Lake Huron and in the middle of Georgian Bay, are areas where the water conditions were rough and unsuited to the types of boats used for fishing in and before 1763. As put by SON, canoes and bateaux were small vessels that needed to be brought to shore in the event of bad weather which, on Lake Huron and Georgian Bay, could come very quickly and dangerously. For that reason, both types of boats usually travelled close to the shore even when going long distances.

[228] Similarly, while there was some use of the water for the purposes of travel, it was not substantial and it was mainly close to shore. SON does not rely on travel to show a significant connection between the Aboriginal Title Claim Area and SON’s historical practices.

[229] (Robert) Paul Nadjiwan, a former SON Chief (Chippewas of Nawash), testified about the dangerous waters in more contemporary times, recounting when his great grandfather and four other fishermen lost their lives in the journey from Nochemowenaing to Cape Croker, generally going south along the east side of the Peninsula.

[230] Even in contemporary times, SON members do not normally fish in the outer parts of the Aboriginal Title Claim Area, despite having more modern boats and equipment. This is underscored by data SON put forward about their commercial fishing in the Aboriginal Title Claim Area from 1995-2018. Ryan Lauzon, a Fisheries Assessment Biologist, testified about this data and prepared an illustration of the data on a map of the Aboriginal Title Claim Area. Ryan Lauzon is a SON employee who manages the program under which SON keeps track of its commercial fishing. This is part of SON’s Substantive Commercial Fishing Agreement with Ontario. That Agreement provides for co-management and includes funding for SON to collect this data. I found Ryan Lauzon knowledgeable about the data he used and found that his map was prepared diligently.

[231] There is no dispute about the veracity of the commercial fishing data itself. However, Ontario disputes the choices made by Ryan Lauzon in illustrating the data on his map, and Ontario gave an alternative illustrative map with different data grouping choices. The impact of the choices made by each side was explored in the evidence, and I found both depictions useful.

[232] Both of the maps show SON’s commercial fishing around the Peninsula area. The data is aggregated over the whole period of 1995-2018. In almost all of the Aboriginal Title Claim Area, only SON could fish commercially, and that is the area I have focused on in my findings. Sustenance and ceremonial fishing are not included in the data, but I find on the evidence that the inclusion of those activities would not significantly change the data.

[233] Ryan Lauzon’s map shows that for more than a third of the Aboriginal Title Claim Area, there was no commercial fishing at all in the period from 1995-2018. Another large portion of the Aboriginal Title Claim Area had only 1-10 fishing events in each grid section,[31] cumulatively, for the whole period from 1995-2018, averaging at most one event every two to three years.[32] Therefore, there was either no fishing or almost no fishing in the majority of the Aboriginal Title Claim Area, over that lengthy modern time period. Not surprisingly, the map shows concentrated fishing activity in certain specific areas, all of which are much closer to shore. The areas of little or no fishing are mainly in the outer half or more of the Aboriginal Title Claim Area in Lake Huron and Georgian Bay.

[234] SON submits that the Supreme Court of Canada has recognized that evidence of fishing may support a claim for Aboriginal title. That is so. In both Delgamuukw and Tsilhqot’in Nation, the Supreme Court observed that fishing could provide evidence of occupation, which is part of the test for Aboriginal title to (dry) land: Delgamuukw, at para. 149; Tsilhqot’in Nation, at paras. 37, 39 and 40. However, the Supreme Court was not discussing claims like this one for title to the lake bed.

[235] The trial evidence shows that some fishing can be and was done from dry land in and around the Peninsula, without actually going out on the water. In addition, Jay “Tattoo” Jones testified about many locations around the shores of the Peninsula that SON has used in contemporary times to launch fishing boats. I infer that many of these locations were used historically as well. These locations ranged from very small to larger, and Jay “Tattoo” Jones testified about the two types of boats usually used: punts and tugs. Punts are better suited to shallow water fishing. Jay “Tattoo” Jones went once to the international boundary, in a tugboat, to see if it was economical to fish out there. He did not go again.

[236] SON’s fishing activities are some evidence of occupation of the Peninsula itself (which is not part of the Aboriginal Title Claim Area) and show some use of some locations near the coast. The weight given to these activities depends in part on the nature of the land and the purposes for which it can reasonably be used: Tsilhqot’in Nation, at paras. 39-41. Yet the fishing activities are not sufficient to show use of the vast Aboriginal Title Claim Area for fishing in 1763, even bearing in mind the principle that there may not need to be a high amount of activity throughout the area to show occupation of the area.

[237] The abundant evidence about fishing could ground a claim for an Aboriginal right to fish in the geographic locations where fishing was integral to SON in 1763. That right has previously been established[33] and is not sought in this case. As well, fishing was integral in only part of the Aboriginal Title Claim Area.

Other evidence relied upon for a connection to the claimed land

[238] Although not highlighted to the same degree by SON on this issue, SON also relies on other evidence that they put forward in support of their position that they have fulfilled the test in Tsilhqot’in Nation. That test focuses on occupation of the Aboriginal Title Claim Area. As discussed further below, SON’s occupation of the Aboriginal Title Claim Area was very limited in 1763. There was considerable evidence on other aspects of the Tsilhqot’in Nation test as well. Because the parties grouped that evidence under the Tsilhqot’in Nation test, I have discussed it below. However, I have considered the entire body of evidence in reaching my decision on central significance.

Central significance to SON’s distinctive culture

[239] Having considered all the evidence from the Aboriginal perspective, I conclude that the practices relied on by SON were and are important but they are not sufficiently connected to the claimed land for Aboriginal title.

[240] The spiritual connection to water is very broad, extending to all waters, rather than requiring a connection with the Aboriginal Title Claim Area itself. As explained by Marshall Nadjiwan, all water is sacred, whether it is in SON’s territory or not, and water ceremonies gave thanks for the water, in all territories, for all people. And the water ceremonies usually did not require use of the Aboriginal Title Claim Area itself.

[241] Fishing was an important activity for SON’s ancestors in 1763, but that evidence provides a foundation for a different Aboriginal right – the Aboriginal right to fish. And with respect to fishing, the connection with the lake bed in 1763 was, at most, incidental to fishing. As well, the area that was significant for fishing was much more geographically limited than the choice of Aboriginal Title Claim Area.

[242] There is then the evidence of occupation put forward for the Tsilhqot’in Nation Aboriginal title test, which is discussed below. That evidence does not show a sufficient connection with the claimed land.

[243] Therefore, the traditional practices and the other evidence relied upon do not show the required connection to the land in the Aboriginal Title Claim Area itself. Applying the legal test, I conclude that SON’s distinctive culture would not be fundamentally altered without Aboriginal title to that lake bed.

[244] The only potential exception is Nochemowenaing. There was and is a strong spiritual connection with that location, including not only the (dry) land but also some nearby waters. Further, the water area was used in water ceremonies both as of 1763 and more recently. The water in that area is still regarded as having healing powers when in that location.

[245] No map or other trial evidence shows the area of healing waters at Nochemowenaing, including what was historically a whirlpool. However, the evidence does suggest that it is a small area (in comparison to the entire Aboriginal Title Claim Area) in or around Hope Bay.

[246] If there was a claim for Aboriginal title to the submerged land that corresponds with the traditional area of the healing waters at Nochemowenaing, the evidence before me shows the central significance of that area to SON. However, if there were such a claim, I expect that there would be more evidence about the area in order to address all of the matters at issue, both as of 1763 and now, such as boundaries and the impact of the public right of navigation. Unfortunately, the evidence relevant to those matters is very limited.

[247] I return to the spectrum of Aboriginal rights set out by Lamer C.J. in Delgamuukw. The spectrum includes practices that are integral to the distinctive Aboriginal culture of the group claiming the right. However, not all such practices support a claim of title to the land. Where there is insufficient occupation and use of the land where the practice is taking place, other Aboriginal rights may arise, but not Aboriginal title. The spiritual and fishing practices relied upon by SON would fall into that category, assuming the other requirements for an Aboriginal right were met. I conclude that those practices were and are important, but they are not sufficiently connected to the claimed land for Aboriginal title.

Translation into a modern legal right

[248] I now consider the last step in determining whether there is a right to Aboriginal title to the claimed land: whether the historical practices translate into a modern legal right. Although the required central significance has not been established, this step underscores the issues that arise from a claim for Aboriginal title to part of the Great Lakes.

[249] The question is whether the Aboriginal practices put forward by SON translate into a modern legal right, and if so, what right? At this stage, the court must consider the common law perspective.

[250] One of the challenges arising from SON’s claim is that at common law, flowing water is incapable of ownership, because it is a common resource: Water Law in Canada, at pp. 223-224, 234, citing McKie v. The K.V.P. Co. Ltd., 1948 CanLII 93 (ON SC), [1948] O.R. 398 (H.C.), aff’d 1948 CanLII 295 (ON CA), [1948] O.W.N. 812 (C.A.), aff’d 1949 CanLII 8 (SCC), [1949] 4 D.L.R 497 (S.C.C.).

[251] Although SON has not sought title to the water itself, SON seeks ownership of the contents of the water (e.g., fish) and the right to exclude others from the water above the submerged lands, as well as the ownership of the contents of the submerged lands (e.g., minerals).

[252] Further, the right to control and exclude others from the claimed land is “basic to the notion of title at common law”: Marshall and Bernard, at para. 64, per McLachlin C.J. However, none of the historical practices that SON relies on need exclusivity.

[253] There is then the question of whether, at common law, there is the possibility of ownership of submerged land. As discussed below, the case law put forward by SON shows that the common law has used the concept of ownership for submerged land. However, as that law has been adapted for Canada, there would not be private ownership of the Great Lakes, and any ownership would be subject to the public right of navigation.

Private ownership of submerged land

[254] SON submits that at common law, there can be private ownership of submerged lands, and that ownership and navigation rights can be compatible with one another.

[255] I accept the basic proposition that, in some contexts, the common law has used the concept of private ownership of submerged lands to address disputed rights, such as fishing. However, the common law principles relied upon by SON have been undermined in the context of the Great Lakes. Further, they do not provide a common law basis for ownership that is not subject to the public right of navigation.

[256] SON relies on a common law presumption known as the ad medium filum aquae (in the middle of the stream) presumption: R. v. Nikal, 1996 CanLII 245 (SCC), [1996] 1 S.C.R. 1013, at para. 63.

[257] Under the presumption, title to submerged land is presumed to remain with the Crown for tidal waters. However, for non-tidal waters, title is presumed to be with the riparian owners: Keewatin Power Co. v. Kenora (Town) (1908), 16 O.L.R. 184 (C.A.), at paras. 15-16. For non-tidal rivers, the owner of the adjacent land is presumed to own the riverbed to the mid-point, hence the name ad medium filum aquae or “in the middle of the stream”. The cases generally dealt with disputes about activities on rivers, such as fishing, logging or passage.

[258] SON submits that this English law applies to non-tidal navigable waters in Ontario and therefore shows that private ownership of submerged lands is part of the common law perspective. However, this English law has repeatedly been called into question in Canada. SON acknowledges that there has been considerable debate about whether the above regime should apply to bodies of water such as the Great Lakes. That is so.

[259] There are several reasons why the ad medium filum aquae regime must be approached cautiously when considering Canadian common law. As discussed further below, these are the main difficulties with applying the presumption here:

(i) it is based upon the tidal/non-tidal distinction, which is important in England but which has been rejected in Canada;

(ii) it is based on the geography in England, which is not comparable to Canada and specifically to the Great Lakes;

(iii) it is, in any event, a rebuttable presumption; and,

(iv) for Ontario, it has been removed, at least in part, by statute.

[260] The tidal distinction is the foundation of the English common law. For tidal waters, the presumption is that the Crown owns the sea bed and the foreshore (the land between the high-water mark and the low water mark): Murphy v. Ryan (1868), I.R. 2 C.L. 143, at p. 149. The public right of navigation for tidal waters is not an issue since the submerged land is not privately owned.

[261] For non-tidal waters, the presumption is private ownership by the adjacent landowner to the mid-point, but it is subject to the public right of navigation if the waters are navigable: Caldwell v. McLaren, [1884] U.K.P.C. 21, at p. 10.

[262] Further, in the context of the public right of navigation, the Supreme Court of Canada has said that the distinction between tidal and non-tidal waters has been abandoned in Canada: Friends of the Oldman River, at p. 54, per La Forest J.

[263] Thus, this common law does not assist SON’s claimed title, which, as SON has framed it, is not subject to the public right of navigation. As well, SON does not claim to be the adjacent landowner with respect to the land boundary of the Aboriginal Title Claim Area.

[264] Further, the Great Lakes have characteristics that are not found in England. In the Court of Appeal for Ontario’s decision in Keewatin Power, in discussing the presumption, Moss C.J.O. specifically distinguished the Great Lakes, at para. 19:

In this case we are not dealing with the Great Lakes nor with a river forming part of the international boundary. But in these instances the prima facie presumption would probably be not difficult of rebuttal.

[265] Chief Justice Moss noted that, in a number of instances, judges had strongly favoured the view that the common law rule is inapplicable to the Great Lakes, but there had been no actual decision on the point. He concluded that in the case of the Great Lakes, “rebutting circumstances and conditions would not be far to seek”: Keewatin Power, at paras. 20, 27.

[266] In Keewatin Power, the court applied the presumption to the river in question, saying there was nothing to distinguish it from streams in England. In doing so, the court noted that the question of whether there were circumstances or conditions sufficient to rebut the presumption was a question to be dealt with in the particular case: Keewatin Power, at paras. 19, 20 and 26-27.

[267] After Keewatin Power, the Ontario legislature passed the Bed of Navigable Waters Act, S.O. 1911, c. 6, which made the ad medium filum aquae presumption inapplicable to navigable waters in Ontario. There is no issue that the Great Lakes are navigable.

[268] SON questions two Supreme Court decisions that consider the presumption in Canada. In Nikal, the accused sought to rely on the ad medium filum aquae presumption in a fishing case arising in British Columbia. The court declined to determine whether the presumption would apply to the reserve in question, but, assuming that it did, the court held that the presumption would not be available for two reasons: because the body of water was navigable and because the right to fish in question was severable: at paras. 63-72, per Cory J. The presumption had been found not to apply in most parts of Canada because the English rule was “singularly unsuited to the vast non-tidal bodies of water in this country”: at para. 72, per Cory J. Similarly, in R. v. Lewis, 1996 CanLII 243 (SCC), [1996] 1 S.C.R. 921, the court held that at least in Western Canada, the presumption did not apply to the navigable rivers: at para. 61.

[269] SON seeks to restrict the impact of these cases to Western Canada because they were based in part on different statutory language importing the English common law into those provinces: R. v. Nikal, at paras. 65-68; R. v. Lewis, at para. 23. However, the underlying commentary about the differences between Canada and England would be just as significant to rebutting the presumption in Ontario.

[270] The distinction made in R. v. Nikal regarding fishing is also relevant here. SON notes that fishing rights, under the presumption, are exclusively the submerged landowner’s rights, yet they do not interfere with the right of navigation on non-tidal waters. But it is unnecessary to apply this law to address fishing rights. To the extent that SON has an Aboriginal right to fish, it is a separate right and does not require private ownership of the lake bed.

[271] SON notes that the reasoning in R. v. Nikal and R. v. Lewis has been criticized by Peggy J. Blair in “No Middle Ground: Ad Medium Filum Aquae, Aboriginal Fishing Rights and the Supreme Court of Canada’s Decisions in Nikal and Lewis” (2001) 31:3 R.G.D. 515 at pp. 581-87. Ms. Blair served as counsel to Chief Howard Jones and Francis Nadjiwon, two members of SON, in the R. v. Jones case.

[272] SON also submits that most of the Canadian academic commentary on the issue of Aboriginal title to navigable waters supports the proposition that title should be recognized when it can be proven. However, most of the academic papers are about whether there should be exclusive fishing rights or fisheries, not Aboriginal title. Further, those papers that do mention submerged land do not analyze or weigh the impact of the public right of navigation. And an article that comments on Ahousaht Indian Band and Nation v. Canada (Attorney General) essentially summarizes the parties’ arguments and predates the decisions in that case.[34] Considering the whole collection, there is a small amount of relevant discussion, going each way, that I have taken into account.

[273] I conclude that SON’s position, that the claimed Aboriginal title is not qualified by the public right of navigation unless justified under s. 35(1), is inconsistent with the above common law.

Canadian treaties

[274] SON also submits that some Canadian treaties and agreements, both modern and historical, have included title to the beds of navigable waters. However, the evidence does not supply the needed context to fully consider these treaties and agreements.

[275] Although many treaties form part of the trial evidence, the three treaties relied upon for this submission have only been included in SON’s book of authorities. I have considered these treaties anyway, because the defendants have not challenged the authenticity of the treaties. SON also relies on facts about other treaties found in an article and a report, where those facts have not been proved at trial. I have not considered those facts since they have not been agreed on.

[276] Treaties 215[35] and 179 are dated in 1879 and 1880 respectively, and they are land surrenders by the Wyandot Indians of the Township of Anderdon, Ontario. The treaties have parallel text but refer to different locations, which appear to be nearby one another. Each treaty refers to a surrender by the Wyandot Indians of land, including a parcel of land covered by water. The land is very specifically described, including reference to the “River Detroit”. The third treaty, Treaty 119, is from 1871. Under that treaty, the Chippewa Indians of Sarnia surrendered 23 acres of their reserve and also the “water lot” in front of the land.

[277] These treaties certainly appear to include the surrender of navigable submerged lands in the late 19th century in a different part of the province. However, the trial evidence does not provide the required context needed to interpret these treaties and their significance. It is well-established that treaties must be interpreted in their historical context: R. v. Marshall, 1999 CanLII 665 (SCC), [1999] 3 S.C.R. 456 (“Marshall No. 1”), at paras. 9-14, 44, per Binnie J. Since these were surrenders to the Crown, there may have been no need to address the public right of navigation.

[278] SON also relies on An Act for the Settlement of Certain Questions Between the Governments of Canada and Ontario Respecting Indian Lands, S.C. 1891, c. 5. This Act provided that the Governor in Council, if he or she should see fit, could enter into an agreement with the Government of Ontario in accordance with the terms of the draft of a proposed agreement that was in a schedule to the Act (subject to any modifications agreed on). One paragraph of the draft agreement mentioned that waters within an Indian reserve, including land covered with water, would be deemed to be part of the reserve and not subject to the common right of fishery (at para. 4). SON submits that this draft was “overtaken by later agreements” but the evidence does not explain either the context for the proposed agreement or what happened afterward.

[279] Further, SON relies on modern legislation. The Labrador Inuit Land Claims Agreement Act, S.C. 2005, c. 27, incorporates the 2005 Inuit of Labrador Land Claim Agreement. That Agreement states that the Labrador Inuit Settlement Area includes the adjacent tidal waters. However, it also provides that this does not derogate from or interfere with the public right of navigation in navigable waters (at Part 4.15.6).

[280] Overall, the usefulness of this material is very limited.

Comparative law

[281] SON also relies on comparative law from the United States, Australia and New Zealand to address concepts of common law ownership of submerged lands and to address the public right of navigation. SON submits that “whatever portion of the common law right of public navigation is ruled to be a justified infringement of Aboriginal title, it can co-exist easily with Aboriginal title to the beds of navigable waters.”

[282] However, this comparative law is characterized more by the differences in those legal regimes than by similarities with Canadian law. At most, it shows that SON’s Aboriginal title claim is out of step with other jurisdictions.

United States

[283] SON submits that U.S. law supplies useful parallels, both about ownership of submerged land and about the coexistence of that ownership and the public right of navigation. However, having considered the evidence, I conclude that the U.S. law is not helpful to SON. At most, the evidence about U.S. law shows there was at least an implicit recognition that tribes may have had some rights in submerged land before the existence of the United States. Further, some U.S. treaties did deal with submerged land. However, the overarching U.S. legal principles also show the fundamental importance of navigability.

[284] The evidence about U.S. Indian law, as it is called, came from Mr. Greene, a U.S. lawyer. There are some parallels between U.S. Indian Law and Canadian Aboriginal law, but there are many distinctions as well.

[285] In the United States, Aboriginal title is known as a right of occupancy. Courts have also used the terminology that the United States holds the “ultimate title” to the land, while a tribe may retain a “title of occupancy”. There is a second type of title called “recognized title”, which means that the tribal property has been formally acknowledged by Congress through a treaty or statute. Only “recognized title” gives rise to a compensable property interest. Aboriginal title (or unrecognized title) can be extinguished by Congress without compensation.

[286] Mr. Greene agreed with Mr. Chartrand’s evidence about certain U.S. treaties in the Great Lakes area, some of which included some submerged land and others that did not. Further, in Mr. Greene’s opinion, where lands include submerged land that is navigable, the title comes with “navigable servitude”. This means that the Aboriginal titleholder cannot interrupt or interfere with the United States government’s paramount power over navigable waters. This paramount power includes the United States’ authority over navigation, flood control, power production and national defence. This is a marked difference between the U.S. law and SON’s claim for Aboriginal title.

[287] SON submits that the inclusion of parts of the Great Lakes in a small number of 19th century U.S. treaties amounts to U.S. recognition that those Indigenous peoples had legally recognized Aboriginal title to those submerged lands. However, as discussed above, SON has not proved that the rationale for those treaties was to recognize or confirm Aboriginal title. Mr. Greene, who is not a historian, was not qualified to testify to the facts giving rise to those treaties, let alone the intentions of the United States when entering into them. At most, those treaties show that in a small number of instances, when the United States was inclined to do so, it chose to enter into treaties that included boundaries in the Great Lakes.

[288] Mr. Greene highlighted the Supreme Court of the United States’ decision in United States v. Holt State Bank, 270 U.S. 49 (1926), 46 S. Ct. 197, because it dealt with submerged land. A marshy lake was drained in order to sell the land, in an area that was subject to a cession of land that became effective in 1890.

[289] The lake in question was found to be navigable. The Supreme Court emphasized that it was “settled law” in the United States that lands underlying navigable waters within a state belong to the state in its sovereign capacity and may be used and disposed of as the state may elect, subject to two qualifications: (1) the paramount power of Congress to control such waters for the purposes of navigation and commerce; and (2) where the United States, after acquiring the territory and before the creation of the state, had granted rights in the land by way of performing international obligations, for use or improvement for commerce, or for other public purposes: at pp. 54-55.

[290] The court further observed that the United States “early adopted and constantly has adhered to the policy of regarding land under navigable waters in acquired territory, while under its sole dominion, as held for the ultimate benefit of future states, and so has refrained from making any disposal thereof, save in exceptional instances when impelled to particular disposals by some international duty or public exigency”: at p. 55.

[291] The court in Holt State Bank held that, under the constitutional principle of equality among states, when Minnesota entered the Union in 1858, the title to the water beds passed to the state unless the title had already been disposed of. The court found that the lake was navigable, giving rise to a heavy burden to meet to show that the land had been reserved by the United States for the tribes before statehood: see also, Montana v. United States, 450 U.S. 544 (1981), at pp. 551-552. The burden was not met: at p. 59.

[292] SON singles out three cases where the Ninth Circuit Court of Appeals found that the United States had intended to include title to a riverbed or lake when establishing tribal reservations: Confederated Salish and Kootenai Tribes v. Namen, 665 F. 2d 951 (9th Cir. 1982); Puyallup Indian Tribe v. Port of Tacoma, 717 F. 2d 1251 (9th Cir. 1983); and Muckleshoot Indian Tribe v. Trans-Canada Enterprises, Ltd., 713 F. 2d 455 (9th Cir. 1983). However, as discussed by Mr. Greene, those cases arose in very specific situations, including treaties, and, in two of the cases, responses made to end hostilities.

[293] Mr. Greene testified that this and the other U.S. law that he put forward shows that, prior to statehood, tribes had Aboriginal title (that is, the right of occupancy) to waterways. However, he opined that “such title must be confirmed and recognized by the United States prior to statehood or title to those navigable waterways would become the property of the State upon statehood” (emphasis added). And as he opined, quoting Montana, to show that title to navigable water was confirmed and recognized by the United States was a heavy burden. It requires a plain intention, definitely declared, stated in clear words.

[294] With respect to the Great Lakes in particular, SON relies on People v. LeBlanc, 399 Mich. 31, 248 N.W. 2d 199 (1976). People v. LeBlanc was an appeal arising from convictions for unlicensed commercial fishing. The court divided on the issue of whether an 1836 treaty reserved fishing rights to the Chippewa Indians, with the majority finding that the treaty did so.

[295] In the course of deciding the case, the majority discussed what was then called Native or Aboriginal title. They described that title as the “non-treaty possessory rights of American [N]atives to territory which they had continually occupied before the advent of white civilization”: at p. 44, citing Oneida Indian Nation v. Oneida County, 141 U.S. 661, 667 (1974). The majority found that in the text of the treaty itself, the United States had recognized that there was Aboriginal title to the treaty area. The majority therefore did not need to go further to consider whether Aboriginal title could or should have been recognized in the lake bed, since it had already been agreed to by the government. The judges in dissent would have upheld the convictions.

[296] Overall, this U.S. comparative law shows an approach to Aboriginal title that is tied to the creation of the United States and the principles that applied to land when each state entered the Union. There is an implicit recognition that tribes may have had some rights in submerged land before the existence of the United States. Further, some U.S. treaties did deal with submerged land. However, the overarching U.S. legal principles also show the fundamental importance of navigability. The United States has paramount power over navigable waters. In contrast, SON’s claim for Aboriginal title to a portion of the Great Lakes is not subject to the public right of navigation.

Australia

[297] SON puts forward Australian law,[36] submitting that there is “no necessary inconsistency” between Crown sovereignty over sea beds and Aboriginal title and interests. Yet SON acknowledges that there are significant distinctions between the Australian and Canadian legal regimes.

[298] The Australian regime for what is called “native title” differs from Canada’s Aboriginal title. Native title is the collective name for whatever individual rights a claimant group has established, including rights to hunt and fish. Under this regime, the court can “unbundle” the claimed rights and deal with them individually. This approach is very different from Aboriginal title under Canadian law.

[299] Another fundamental difference arises because the Australian legal regime incorporates significant statutes, most importantly, the Native Title Act 1993 (Cth), 1993/110. As set out in The Commonwealth of Australia v. Yarmirr, [2001] HCA 56, 184 A.L.R. 113, at paras. 323-324, Australia’s native title is defined in that Act, and expressly includes the possibility of its application to “land or waters”: s. 223(1).

[300] Even under that legislation, and the “unbundling” approach, Australia’s High Court has declined to give exclusive rights over submerged lands as part of native title, because of public rights of navigation, fishing and innocent passage.

[301] In Yarmirr the claimants sought a declaration of native title in an area that included land, seas and sea beds. The claimants sought native title based on use for the purpose of hunting, fishing and gathering to provide for their sustenance, and for other purposes associated with their cultural, ritual and spiritual obligations, beliefs and practices.

[302] The application judge determined that the relevant native title rights and interests of the claimants included rights such as the following: the right to fish, hunt and gather within the Aboriginal title claim area for the purpose of satisfying their personal, domestic or non-commercial communal needs; the right to observe traditional, cultural, ritual and spiritual laws and customs; the right to have access to the sea and sea bed within the claimed area and visit and protect places within the claimed area that were of cultural or spiritual importance; and, the right to safeguard the cultural and spiritual knowledge of the claimants.

[303] The application judge determined that there could be native title, including to the sea bed, but found that it was non-exclusive.

[304] Both sides appealed. The Commonwealth argued that native title should not be recognized because the common law did not extend to the sea bed. The claimants argued that the claimed rights and interests included a right of exclusion. Both appeals were unsuccessful.

[305] On appeal to the High Court, a nine-judge panel of the court confirmed that native title rights and interests in the sea bed may exist, but common law rights of fishing, navigation and innocent passage mean that those native title rights could only be non-exclusive. The majority considered whether the public rights of navigation, fishing and innocent passage were consistent with a claim of exclusive native title, concluding that they were not: at paras. 94-100.

[306] The claimants had sought to avoid a challenge based on the public rights to navigate and fish and the right of innocent passage: at para. 95. They made their claimed title subject to those rights. The court acknowledged that the claim was qualified in this way. However, in deciding whether exclusive title was established, the court was obliged to consider the “nature and extent of the inconsistency between the asserted native title rights and interests and the relevant common law principles”: at para. 97. This gave rise to a “fundamental inconsistency” between exclusive native title and public common law rights: at para. 98. The majority concluded that the two sets of rights (exclusive native title and public rights of navigation, fishing, and innocent passage) could not “stand together” and it was “not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests” was “subject to the other public and international rights”: at para. 98.

[307] The majority[37] concluded that the assertion of sovereignty is “antithetical” to an exclusive native title: at para. 100.

[308] This decision also shows an essential difference between Canadian and Australian law, arising from the unbundling approach. In Canada, an Aboriginal right to fish, for example, even an exclusive right to fish, could and normally would be addressed as an Aboriginal right. Here, the claimant would not need to prove Aboriginal title to the submerged land where the practice takes place: Van der Peet, at para. 74.

[309] Despite some potential advantages under the Australian regime, where the possibility of title to submerged land is accepted by statute, an exclusive native title was rejected due to the public rights of navigation, fishing and innocent passage.

New Zealand

[310] SON submits that Maori customary law, as recognized in New Zealand, is sufficiently analogous to the Canadian law of Aboriginal title that the New Zealand experience can help the court. However, I find that the New Zealand regime is significantly different from Canada, most notably through that country’s legislation.

[311] SON relies on Ngati Apa v. Attorney-General, [2003] NZCA 117, because the court refused to strike out a claim for Maori title to a sea bed. However, that decision was focused on jurisdiction. The court emphasized that the question of whether the appellants would succeed in showing any customary property in the sea bed remained “conjectural”: at paras. 8, 9.

[312] The court in Ngati Apa held that the statutory Maori Land Court could investigate a claim that the foreshore and sea bed was Maori customary land under the Te Ture Whenua Maori Act 1993. That Act provided that all land in New Zealand had one of six statuses, found in s. 129(1) of the Act. The six possibilities were: Maori customary land; Maori freehold land; general land owned by Maori; general land; Crown land; and Crown land reserved for Maori. The court held that the sea bed and foreshore fell within the definition of “land” for the purposes of s. 129(1) of the Act. The court referred to some Canadian jurisprudence, noting that a range of Aboriginal rights had been recognized in Canada, including exclusive ownership: at para. 31, citing Delgamuukw.

[313] The court in Ngati Apa did not find that the land claim had been established – that was an issue for the specialized court. The nature and scope of such a claim was also a matter for the specialized court.

[314] The court in Ngati Apa noted that the Native Rights Act 1865, which created the Native Land Court, had been enacted to remove any doubts about the jurisdiction of the general courts regarding Maori and their property: at para. 32. There was then successive legislation, in 1909, 1931, 1953 and 1993, which addressed the jurisdiction of what was then called the Maori Land Court: at paras. 2, 32. The discussion about the applicable legislation in Ngati Apa underscores the significance of the legislative regime to the determination of the issues.

[315] The Maori Land Court did not go ahead to render a decision on the substantive issues, due to intervening legislation. The Foreshore and Seabed Act, 2004 was passed. It was far-reaching legislation, and much criticized. It was then repealed and replaced by the Marine and Coastal Area (Takutai Moana) Act 2011, yet another legislative regime without a parallel in Canada.

[316] SON also relies on Re Tipene, [2016] NZHC 3199, yet that case was decided under the above 2011 legislation. That Act expressly provides for ongoing public rights of access, navigation and fishing: Re Tipene, at para. 31.[38]

[317] Thus, the New Zealand regime is different from the Canadian regime. It is largely based on statutes that do not have a parallel in Canada, although there is some consideration of the common law. I accept that the New Zealand legal regime recognizes that there could be rights in submerged land, although these and other cases provided to me by the parties do not suggest that there has been a full consideration of the issues with full factual context. Further, and in contrast to SON’s claim, the New Zealand legislative regime for marine and coastal claims expressly preserves the public right of navigation.

Whether the connection translates into a modern common law right

[318] I return to the question of whether the historical practices relied on by SON translate into a modern common law right, and if so, which right? Given both the Indigenous and the common law perspectives, I conclude that the nature of SON’s connection to the claimed land in Lake Huron and Georgian Bay does not translate into title to that submerged land. Even if SON’s ancestors did have the necessary connection with that land, the historical practices do not translate into rights similar to common law ownership of part of the Great Lakes.

[319] I emphasize that I have considered the specific claim area only. As set out above, this claim must be decided on a specific, rather than a general, basis. Focusing on SON’s Aboriginal Title Claim Area, there are several reasons why SON’s historical practices do not translate into a modern right to title.

[320] To begin with, none of the in-water boundaries of the Aboriginal Title Claim Area reflect an area relevant to the historical practices, customs or traditions of SON’s ancestors. Those boundaries are well beyond any actual historical use and are mainly based on modern considerations. SON has not shown any historical use of most of the claim area.

[321] Further, SON’s connections to the Aboriginal Title Claim Area relate to the water, rather than to the submerged land. Moving water above submerged land cannot be owned at common law and is, by its nature, fundamentally different from land.

[322] Fishing already has a well-established route for recognition as an Aboriginal right and does not require title to the submerged land in the Aboriginal Title Claim Area.

[323] The location and nature of the specific land is also relevant. In this case, the land forms part of Lake Huron and Georgian Bay. This gives rise to the issue of public access to navigable waters on the Great Lakes. In seeking Aboriginal title, SON seeks the right to control the Aboriginal Title Claim Area and the right to exclude all others from the area. This right conflicts with the common law, under which these navigable waters are subject to the public right of navigation. The Supreme Court of Canada has said that this right is paramount.

[324] Not only the English and Canadian common law, but also the comparative law, shows the importance of the public right of navigation. The comparative law shows that SON’s claim is out of step with the importance of this public right, even in the context of Indigenous land claims.

[325] In closing argument, SON proposed a different claim, in the alternative. SON submitted that it was open to the court to define Aboriginal title to submerged lands differently, removing the right to exclude the public for purposes of navigation. Considering that alternative, I must still ask whether the historical practices translate into a modern right, and if so, what right? Control is a core element of title to land. The right to control land and exclude others from using it are “basic to the notion of title at common law”: Marshall and Bernard, at para. 64, per McLachlin C.J.

[326] SON’s alternative claim was attempted in Yarmirr. I agree with the court’s observation in Yarmirr that this proposed qualification on Aboriginal title would give rise to a “fundamental inconsistency” between Aboriginal title and common law rights. This alternative does not translate into Aboriginal title to the claimed land.

[327] The location of the claimed land is also relevant because the land extends to the international boundary. SON seeks the right to control the Aboriginal Title Claim Area for all purposes, including with respect to national defence. In turn, emergency defence measures that require access to that part of Lake Huron would have to be justified before any action is taken. SON submits that national defence would be easily justifiable, but the choice of the Aboriginal Title Claim Area still raises the question of whether recognizing Aboriginal title to submerged land that extends to the international boundary is compatible with Canadian sovereignty. Control of a border is an incident of sovereignty, and the state is expected to exercise it in the public interest: Mitchell 2001, at paras. 160-163.

[328] Taking a generous view of the Indigenous practices put forward, I conclude that those practices do not correspond with the core concepts of title to land or water at common law, or with the current conception of Aboriginal title. The issues that arise are not technicalities; they are fundamental conflicts with the concept of title and the rights encompassed in Aboriginal title. The historical practices do not translate into the claimed title to that lake bed in Lake Huron and Georgian Bay.

[329] I note that SON’s historical practices may translate into other rights. Although not claimed in this case, the comparative law provides illustrations of rights that better correspond to the historical Indigenous practices that are the foundation of SON’s claim. For example, in Australia, the application judge recognized the right to observe traditional, cultural, ritual and spiritual laws and customs, including access to the sea. Despite the differences in the Australian legal regime, this illustrates that there may be other ways to recognize historical spiritual practices such as the water ceremonies at Nochemowenaing.

[330] I conclude that SON has not established that their traditional practices give rise to an Aboriginal right to title to the claimed lake bed. However, I emphasize that this conclusion does not rule out Aboriginal title to submerged land altogether. It is limited to the Aboriginal Title Claim Area itself – a large part of a Great Lake on the international boundary. The outcome could be different for other submerged land with different geographic characteristics, historical practices and context. For example, the impact of the public right of navigation is very significant for this particular area, but that may not be the case for all inland lakes, rivers or streams. Thus, on the novel issue, I leave open the possibility of Aboriginal title to submerged land, although not in this case.

The Tsilhqot’in Nation test

[331] SON’s position is that the existing test for Aboriginal title from Tsilhqot’in Nation should be applied in this case, rather than the above analysis. Aboriginal title to (dry) land is a recognized Aboriginal right and Tsilhqot’in Nation sets out the test that must be satisfied to obtain Aboriginal title. SON submits that their evidence satisfies the test. The defendants disagree. Having considered all the evidence, I conclude below that the test has not been met for the Aboriginal Title Claim Area.

[332] The Tsilhqot’in Nation test is based on occupation of the claimed land prior to the assertion of sovereignty in 1763. To ground Aboriginal title, this occupation must have three characteristics: “It must be sufficient; it must be continuous (where present occupation is relied on); and it must be exclusive”: Tsilhqot’in Nation, at para. 25 (emphasis in the original), see also para. 50.

[333] The general requirements to prove entitlement to Aboriginal title under Tsilhqot’in Nation are therefore as follows:

(i) there must be sufficient occupation of the Aboriginal Title Claim Area to establish title as of the assertion of sovereignty in 1763;

(ii) where present occupation of the Aboriginal Title Claim Area is relied on as proof of occupation in 1763, there must be continuity between present and pre-assertion of sovereignty occupation; and,

(iii) the historic occupation as of 1763 must have been exclusive.

[334] SON does not seek Aboriginal title for the Peninsula itself. Given the choice of claim area, SON must show sufficient occupation, continuity and exclusivity for the claimed part of Lake Huron and Georgian Bay.

[335] As put in Tsilhqot’in Nation, the “concepts of sufficiency, continuity and exclusivity provide useful lenses through which to view the question of Aboriginal title”, however, care must be taken “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”: Tsilhqot’in Nation, at para. 32.

[336] However, SON and the defendants have made their submissions on each of the three requirements separately, as was done in Tsilhqot’in Nation. In turn, I have considered each requirement, while bearing in mind that they are no more than useful lenses from which to view the question of Aboriginal title.

[337] Before I turn to the evidence, I will review the legal principles that apply to the three parts of the test:

(i) Sufficiency of occupation;

(ii) Continuity; and,

(iii) exclusivity.

Sufficiency of occupation

[338] The question of sufficient occupation must be approached from both the Aboriginal perspective and the common law perspective: Tsilhqot’in Nation, at para. 34; Delgamuukw, at para. 147. The requirement of physical occupation must be generously interpreted, taking into account both perspectives: Delgamuukw, at para. 156.

[339] The Aboriginal perspective focuses on practices, customs, traditions and laws of the Aboriginal group: Tsilhqot’in Nation, at para. 35; Delgamuukw, at para. 148.

[340] The common law perspective imports the ideas of possession and control of the lands: Tsilhqot’in Nation, at para. 36.

[341] The Tsilhqot’in Nation test requires physical occupation: at para. 44; see also, Delgamuukw, at para. 147. Aboriginal societies “were not strangers to the notions of exclusive physical possession equivalent to common law notions of title. They often exercised such control over their village sites and larger areas of land which they exploited for agriculture, hunting, fishing or gathering. The question is whether the evidence here establishes this sort of possession”: Marshall and Bernard, at para. 62, per McLachlin C.J. (citation omitted); Delgamuukw, at para. 156, per Lamer C.J.

[342] In determining what constitutes sufficient occupation, one looks to the Aboriginal culture and practices, and compares them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation: Tsilhqot’in Nation, at para. 50. It is “not possible to list every indicia of occupation that might apply in a particular case”: Tsilhqot’in Nation, at para. 41.

[343] Occupation may be proved in a variety of ways. For dry land, examples have included the construction of dwellings, cultivation, enclosure of fields and regular use of definite tracts of land for hunting, fishing or otherwise exploiting resources: Tsilhqot’in Nation, at para. 37; Delgamuukw, at para. 149, per Lamer C.J., at para. 194, per La Forest J.; Marshall and Bernard, at paras. 49, 56, per McLachlin C.J.

[344] In considering the Aboriginal perspective for the purpose of Aboriginal title, the court must “take into account the group’s size, manner of life, material resources, and technological abilities, and the character of the lands claimed”: Tsilhqot’in Nation, at para. 35; Delgamuukw, at para. 149, per Lamer C.J., at para. 194, per La Forest J.; Marshall and Bernard, at paras. 49, 56, per McLachlin C.J.

[345] “The intensity and frequency of the use may vary with the characteristics of the Aboriginal group asserting title and the character of the land over which title is asserted”: Tsilhqot’in Nation, at para. 37.

[346] Occupation sufficient to ground Aboriginal title is not confined to specific sites. For example, when considering dry land, occupation extends beyond specific settlement locations to the tracts of land that were regularly used for hunting or fishing over which the group exercised effective control at the time of assertion of European sovereignty: Tsilhqot’in Nation, at para. 50.

[347] 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”: Tsilhqot’in Nation, at para. 38.

[348] Sufficient occupation is a “question of fact, depending on all the circumstances, in particular the nature of the land and the manner in which it is commonly used”: Tsilhqot’in Nation, at para. 44, citing Marshall and Bernard, at para. 66. It is a context-specific inquiry: Tsilhqot’in Nation, at para. 37. In considering the evidence, I have taken into account all the circumstances, including the nature of the land – that is, submerged land.

Continuity

[349] Continuity between the past and the present may help an Indigenous group seeking to prove occupation as of 1763. Conclusive evidence of pre-1763 occupation may be difficult to obtain. Instead, an Aboriginal group may provide evidence of present occupation as proof of pre-1763 occupation: Delgamuukw, at para. 152, per Lamer C.J; Tsilhqot’in Nation, at para. 45.

[350] There is no need to prove “an unbroken chain of continuity” between present and prior occupation: Tsilhqot’in Nation, at para. 46; Van der Peet, at para. 65; Delgamuukw, at para. 153, per Lamer C.J., at para. 198, per La Forest J. Occupation-related use of lands may have been disrupted for a time. Further, a change in the nature of occupation would not ordinarily prevent a claim for Aboriginal title, as long as a substantial connection between the people and the land is maintained: Delgamuukw, at para. 154, per Lamer C.J.

[351] Continuity simply means that for evidence of present occupation to support an inference of occupation prior to the assertion of sovereignty, the present occupation must be rooted in pre-1763 times: Tsilhqot’in Nation, at para. 46.

Exclusivity

[352] The third requirement to establish Aboriginal title under Tsilhqot’in Nation is exclusive occupation of the Aboriginal Title Claim Area as of 1763.

[353] This requirement flows from the definition of Aboriginal title itself. Aboriginal title is the right to exclusive use and occupation of land, that is, to the exclusion of all other people: Delgamuukw, at para. 155, per Lamer C.J.; Tsilhqot’in Nation, at para. 47; Marshall and Bernard, at para. 57.

[354] Exclusivity is a crucial element needed to establish Aboriginal title: Delgamuukw, at para. 159, per Lamer C.J.

[355] To show exclusivity, the Aboriginal group must have had “the intention and capacity to retain exclusive control” over the claimed lands at the time of British assertion of sovereignty: Tsilhqot’in Nation, at paras. 47-48; Delgamuukw, at para. 156; Marshall and Bernard, at para. 57, per McLachlin C.J. Exclusivity 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: Tsilhqot’in Nation, at para. 48.

[356] As with the sufficiency of occupation, the exclusivity requirement must be approached from both the Aboriginal perspective and the common law perspective: Tsilhqot’in Nation, at para. 49; Delgamuukw, at paras. 156-157, per Lamer C.J., Marshall and Bernard, at paras. 57, 61, per McLachlin C.J.

[357] Exclusivity can be established by “proof that others were excluded from the land, or by proof that others were only allowed access to the land with the permission of the claimant group. The fact that permission was requested and granted or refused, or that treaties were made with other groups, may show intention and capacity to control the land. Even the lack of challenges to occupancy may support an inference of an established group’s intention and capacity to control”: Tsilhqot’in Nation, at para. 48.

[358] Again, evidence may be hard to find. The area may have been sparsely populated, with the result that clashes and the need to exclude strangers seldom, if ever, occurred. Or the people may have been peaceful and have chosen to exercise their control by sharing rather than exclusion. It is therefore important to view the question of exclusion from the Aboriginal perspective and not insist on evidence of overt acts of exclusion when to do so would be unfair: Marshall and Bernard, at para. 64, per McLachlin C.J.

[359] These principles apply to nomadic and semi-nomadic Aboriginal groups. Whether a nomadic people enjoyed sufficient “physical possession” to give them title to the land is a question of fact, depending on all the circumstances, including the nature of the land and the manner in which it is commonly used. “Not every nomadic passage or use will ground title to land” and in each case “the question is whether a degree of physical occupation or use equivalent to common law title has been made out”: Marshall and Bernard, at para. 66, per McLachlin C.J.; Delgamuukw, at para. 149.

[360] The nature of the land claimed and how it was commonly used is therefore significant to this aspect of the test, as well as sufficiency of occupation.

[361] SON relies on evidence from many areas to show occupation and exclusivity.

SON occupation (including continuity) and exclusivity in the claim area

[362] SON begins with evidence in the following areas to show the necessary occupation of the Aboriginal Title Claim Area as of 1763:

(i) SON’s perspective and relationship with the Aboriginal Title Claim Area;

(ii) the customary laws that applied to the Aboriginal Title Claim Area and the enforcement of those laws; and,

(iii) fishing in the Aboriginal Title Claim Area.

[363] SON also relies on traditional stories, anthropological evidence and historical evidence about who was present in the area at different points in time, and certain key events in history. SON submits that the evidence shows the required permanent presence and intention to hold and use the Aboriginal Title Claim Area for SON’s purposes as of 1763, including control and exclusivity.

[364] The defendants submit that the evidence does not prove sufficient occupation, control or exclusivity.

[365] Ontario concedes that, as of 1763, ancestors of SON were living on the Peninsula and lands to its south, and that they fished and travelled in some of the Aboriginal Title Claim Area. Ontario therefore agrees that there was some use of Lake Huron and Georgian Bay. Ontario submits that the dispute is about the locations, intensity and regularity of that use, which Ontario submits are insufficient to show occupation of the claim area.

[366] Canada submits that SON’s ancestors can only be reliably traced back to the early 1820s and only to the Peninsula and other dry land neighbouring the claim area. Canada submits that there is insufficient evidence to prove occupation, even for the Peninsula itself, before that time.

[367] Both Ontario and Canada submit that the evidence does not show the needed control and exclusivity with respect to the Aboriginal Title Claim Area. Both defendants submit that SON had neither the capacity nor the intention to exclude others from that part of Lake Huron and Georgian Bay.

[368] As set out below, I find that there is some evidence of occupation in 1763, albeit mainly of the adjoining Peninsula lands, and use of some of the Aboriginal Claim Area itself, mainly for fishing. However, there was little or no physical use of the majority of the Aboriginal Title Claim Area and physical use is significant under the Tsilhqot’in Nation test. Further, SON has not shown exclusive occupation. SON ancestors did not have control or the capacity to control the Aboriginal Title Claim Area in 1763. Again, the main evidence of control related to fishing.

SON’s perspective and relationship with the Aboriginal Title Claim Area

[369] I begin with SON’s perspective, and then move to the many evidentiary topics SON has put forward in support of their Aboriginal title claim under the Tsilhqot’in Nation test.

[370] SON submits that from the Indigenous perspective, SON’s spiritual relationship with the land and water shows the needed permanent presence and intention to hold and use the Aboriginal Title Claim Area for SON’s purposes. This evidence has been discussed above, and I have concluded that SON has not shown a connection with the claimed area of Lake Huron and Georgian Bay that was of central significance to SON’s ancestors in 1763.

[371] The Anishinaabek, including SON, had a spiritual connection with the whole of the Earth, including the water, as of 1763. SON appears to equate this spiritual connection with occupation. Spiritual connections with the whole Earth or the whole of a territory, land and water, may be relevant to occupation. I find them relevant in this case. But they are not sufficient to show occupation of the claim area for the purpose of Aboriginal title. SON relies on considerable other evidence as well.

[372] SON also has a particular concern about environmental issues in the Peninsula area and the waters surrounding the Peninsula. That concern overlaps with the above spiritual connection and with fishing. The environmental activities highlighted in the evidence are modern activities, not historical traditional practices, yet they show a cultural concern for the well-being of the Earth that I also find relevant to SON’s claim for Aboriginal title.

[373] SON further relies on the burial customs of the Anishinaabek, which give rise to a spiritual obligation to protect burial sites. They are sacred sites. As said by Karl Keeshig, customarily the Anishinaabek did not visit burial sites often, but there were some burial ceremonies done at grave sites and it is important that the sites are undisturbed. I find that the Anishinaabek had and have a strong spiritual connection with burial sites, which shows a connection to that land. There are numerous burial sites on the Peninsula itself. However, the burial sites are all on the dry land. They are not in the Aboriginal Title Claim Area.

[374] SON’s perspective and relationship with the claim area is informed by all the other evidence. SON relies on evidence in these areas to show occupancy and exclusivity:

• Traditional stories about ancient times, to show presence in the area;

• Linguistics, to show presence in the area;

• Archaeological findings, to show presence in the area;

• Fishing, to show presence in, use of and control of the claimed land;

• Anishinaabe customary laws, to show control;

• Events in the French period, pre-1763, to show control; and,

• Certain conflicts, including the Beaver Wars, the Seven Year’s War and Pontiac’s[39] War, to show control.

[375] To fulfill the Tsilhqot’in Nation test, SON must show a permanent presence and intention to hold and use the claimed part of Lake Huron and Georgian Bay for SON’s purposes. However, the evidence discussed below is mainly about the Peninsula and lands to its south, not the claimed parts of Lake Huron and Georgian Bay. I agree that the occupation of dry land, such as the Peninsula, may show occupation of the surrounding water spaces. I therefore find that evidence relevant, but it must still be examined to see if it shows sufficient occupation of the submerged land for Aboriginal title.

[376] As well, Canada has emphasized that SON relies heavily on actions taken by other Indigenous groups, in other locations, to support their claim. This is the case. However, all the evidence must be examined to determine whether SON has shown sufficient occupation and exclusivity to prove Aboriginal title.

Traditional stories about ancient times

[377] The relevant time to consider occupation of the Aboriginal Title Claim Area is 1763. However, SON puts forward traditional stories to show a much longer connection with the general area. SON originally put forward this evidence as part of the Aboriginal perspective, but in final submissions, SON’s focus was on showing long-term occupancy in the general area. I have considered this evidence for both topics.

[378] SON submits that its ancestors have been present in their territory forever. SON focuses on a time period that goes back more than 9,000 years. It is not necessary to prove this presence, for many thousands of years, but SON has emphasized this position both in the trial evidence and in their final submissions.

[379] There is some oral history evidence from community members about the Anishinaabe relationship with the Earth that begins with the Creation Story, which has been discussed above. There is also some evidence from community witnesses about being in the area “forever” or for thousands of years, for example. The community witness evidence on this subject is very general, without evidence of practices to preserve an oral history over that length of time. For example, Chief Roote testified that ancestors of SON had been in the area for many centuries and later said that he would estimate it at more than 3,000 years. He did not give a source for this belief, or how it was passed down over that many years, or how it was passed down to him. Frank Shawbedees had more detail about his sources of information, but he was speaking about the entire area of southern Ontario. I accept that the beliefs held by community witnesses about these matters are sincere. However, this evidence is not as reliable as oral history can be, given its foundation. The exception is the Creation Story itself, but it is not about SON’s territory or the Aboriginal Title Claim Area only – it speaks of all Anishinaabek and the whole Earth.

[380] SON then focuses on specific traditional stories that SON submits have been passed down for thousands of years, carrying teachings on spirituality, morality and culture. SON relies on these stories to show a long time link to the area, correlating the stories with ancient geological events. However, those connections are very general, and they do not show a connection with the claim area.

[381] Karl Keeshig, Lenore Keeshig and Lenore’s father, Donald Keeshig, told the stories that SON focuses on.[40] Lenore Keeshig is a member of the Chippewas of Nawash Unceded First Nation. She testified as a storyteller. She learned stories in childhood from her father. She explained how she became a storyteller later in life, that role, and the significance of stories.

[382] SON submits that certain stories Lenore Keeshig or her father have told are linked to ancient geological events in or around the Aboriginal Title Claim Area, and that they therefore show a connection to the area. These stories are as follows: the story of Nanabush and the Giant Beaver, the story about Nanabush’s tears, and the story about a tunnel to Manitoulin Island. SON submits that the geographic location of specific geological events or features, when juxtaposed with these stories, shows an ancient connection to the area.

[383] I have used the name Nanabush in relation to these specific stories because it was most often used in SON’s trial evidence. Karl Keeshig testified that the Creator created the first Indigenous man and, although he had no name, in retrospect he has been given several names, including Anishinaabe, Miskogabowut, Wanaybozhoo and Nanabush.

[384] Lenore Keeshig testified that Nanabush stories are very important for Anishinaabe people – they are sacred stories that are used for teaching proper behaviour. She described Nanabush as a trickster teacher, saying that as a result of the stories, the Anishinaabek learned through Nanabush’s actions. Karl Keeshig testified that through the Nanabush stories, they learned about the trials and tribulations of life.

[385] I will begin with the story of Nanabush and the Giant Beaver. SON submits that this story can be connected to an ancient geological event – the breach of the Nadoway-Gros Cap Barrier west of Sault Ste. Marie more than 9,000 years ago. That location is not in the Aboriginal Title Claim Area; however, it is just west of Lake Huron.

[386] Lenore Keeshig told the story in court and I have used her wording. She recounted that Nanabush and his grandmother were travelling on the south shore of Lake Superior going towards the place known today as Sault Ste. Marie. They were tracking the giant beaver and had lost the trail so they decided to have some respite. They built a camp there, and stayed for a while. And then they realized that the water level was rising so they broke camp and travelled east to where the water narrowed. There they saw what looked like a giant beaver dam. They thought that the giant beaver was close by so Nanabush left his grandmother in safety and he went to track down the beaver. One night the grandmother heard water splashing, got up to investigate, and could discern the outline of the beaver. She caught the beaver by the tail. She was calling her grandson, but he did not hear her. The beaver could not escape – it tugged and it pulled and it thrashed trying to get out of the woman’s trap. Finally, the giant beaver realized that the only way it could escape was to destroy its own dam. It pulled apart the dam and finally the dam was breached, and the grandmother had to let the beaver go. Nanabush came back to find that his grandmother was safe. They went to investigate the breaching of the dam and discovered islands where there had been no islands before. Lenore Keeshig testified that the islands are the Thirty Thousand Islands and the Manitoulin archipelago.

[387] Lenore Keeshig acknowledged in a 2006 interview that the person who told her this story may have read it from a book that included a story of Nanabush recounted by Elders at the Rama First Nation in the 1930s.

[388] SON submits that this traditional story has some historicity – that is, SON submits that it includes some historical fact. SON submits that it is related to the breach of the Nadoway-Gros Cap Barrier and therefore shows that ancestors of SON were in that area in the distant past.

[389] Dr. McCarthy, an expert geologist, testified about some historical geological events, including the breach of the Nadoway-Gros Cap Barrier. There is no dispute that about 9,000 years ago, a sediment barrier at the entrance of the St. Mary’s River between Nadoway, Michigan and Gros Cap, Ontario was breached. The Barrier was about 28 km west of Sault Ste. Marie.

[390] Dr. McCarthy testified that the breach took place over a period of hours or days. The breach of the Barrier meant that water from what is now Lake Superior rapidly entered the north channel of what is now Lake Huron. The sudden influx of water from Lake Superior flooded the north channel and left the islands that are there today.

[391] SON submits that there are parallels between the Nanabush story and this geological event, including a change in water levels, the destruction of a barrier, and the creation of many islands.

[392] Dr. von Gernet, an expert anthropologist and ethnohistorian, and Dr. Bowman, an expert classicist, testified about approaches to evaluating whether a traditional story has elements of historicity.[41] Each expert approached the issues from the standpoint of their expertise. I have considered this evidence in view of the overarching legal principles applicable to oral history.

[393] The expert evidence provided examples of traditional stories that were reliably connected to historic geological events and other stories that were not, despite the potential that they may have been. As well, while oral traditional stories will preserve things of importance to the culture, that information is not necessarily historical fact, even if it may appear to refer to a historical event. Oral history is also often accretive, adding events or elements over time. Some traditional stories also serve to explain existing geological features, rather than originating with someone actually seeing the occurrence of a geological event. Those stories could have begun at any point after the feature was present.

[394] I found Dr. Bowman’s evidence helpful on the general subject of analyzing traditional stories for historical content. She has considerable expertise in the methodology of inquiry into potential historical information in orally transmitted traditional stories. Further, Dr. Bowman did not purport to be an expert on Anishinaabe oral histories. This underscored her objectivity. Her evidence about methodology overlapped significantly with the evidence of Dr. von Gernet, who has considerable experience with Anishinaabe traditional stories.

[395] Dr. Bowman also considered “geomythology” – an area of study that SON originally raised. Geomythology involves analyzing mythological stories and potential connections with historical geological events and formations. As noted by Dr. Bowman, geomythology is a relatively new discipline. In contrast, scholars in the Classics have well-established approaches to the interpretation of orally transmitted traditional stories, and to the assessment and verification of historical information transmitted in those stories. These approaches have always been necessary for their research. Dr. Bowman opined on best practices to establish the reliability of apparent connections between geological events and oral traditional stories.

[396] Dr. Bowman warned of the danger of assuming that a story has some historicity, resulting in circular reasoning. Corroboration can be important, but I conclude that, at law, it is not a prerequisite to finding that facts have been preserved. Other things to consider include the purpose of the story, how it was transmitted to preserve facts over however many generations, alternative explanations, variations to the story and what is called cultural diffusion (stories that came from other Indigenous groups where there was contact between groups).

[397] Most of the story of Nanabush and the Giant Beaver is not put forward as fact, yet it may still contain some fact. Humans did exist in Ontario at the time of the breach of the Nadoway-Gros Cap Barrier. It is therefore possible that a person or persons saw the events. There was also an animal species called Castoroides ohioensis that bore a resemblance to a giant beaver. Two skeletons of that species have been found in Ontario. However, it is believed that this animal did not build dams, and the species is believed to have become extinct in the Great Lakes region around 10,000 years ago, well before the breach of the Nadoway-Gros Cap Barrier.

[398] There are other difficulties with the suggestion that the traditional story is connected to the location and breach of the Nadoway-Gros Cap Barrier. There are traditional stories about floods and giant beavers told by Indigenous groups across North America, not only in Ontario but also in the Pacific Northwest, in Quebec, in New Brunswick and in Nova Scotia. This does give rise to the possibility of cultural diffusion, by which ancestors of SON may have heard the story from other Indigenous groups, rather than from a SON ancestor. And there was little evidence of any particular processes followed to preserve the accuracy of the facts in this traditional story for thousands of years.

[399] The other two stories that SON relies upon for ancient occupation have challenges as well. For both stories, the location was added by a modern storyteller.

[400] SON relies on the story of Nanabush’s tears to show that SON’s ancestors were familiar with a time when Lake Huron and Georgian Bay were salty. Lenore Keeshig told the Nanabush’s tears story. The story is that Nanabush’s “favourite nephew died and Nanabush cried, and his tears fell like boulders, like rocks, and he cried so much that his tears turned the water in the bay salty”. Dr. McCarthy testified that from approximately 9,000 to 8,200 years ago, Lake Hough (Georgian Bay) was a closed water system and the water was brackish. Dr. McCarthy testified that other bodies of water, such as Lake Michigan and Lake Huron, were likely also brackish.

[401] SON submits that this story is some evidence that their ancestors were in the area many thousands of years ago. However, the location in the story (the “bay”) was added by Lenore Keeshig. She heard this story from Rose Nadjiwan, who had heard it from her parents, but who had not given the story any location or time period. Lenore Keeshig admitted that she added the location because of what she knew about Georgian Bay’s geological history. She also conceded in a 2006 interview that the story could refer to other locations.

[402] Donald Keeshig told the third story that SON relies upon for ancient occupation. Similar to Lenore Keeshig adding a location to the Nanabush’s tears story, Donald Keeshig added the specific location to the third story. He told a story of a man who walked from the Peninsula through a tunnel to see where it went, and who met another man coming from the other direction. Donald Keeshig said that his father’s cousin, Lawrence Keeshig, first told him the story. Donald Keeshig testified that he assumed that the tunnel must have gone from Tobermory to Manitoulin Island. He added the location to the story, which originally did not specify that the tunnel went from the Peninsula (at Tobermory) to Manitoulin Island.

[403] Lenore, his daughter, also mentioned the story in her testimony. However, she did not first hear it from her father. She said that when she was discussing geological features called “pop-ups” near Tobermory with a geologist, Dr. Steven Blasco, he mentioned that Donald Keeshig had told this story to him. Dr. Blasco was not called as a witness.

[404] SON submits that this story has a parallel with the geological features called “pop-ups”, which are canyon-like features that are now mostly under water. Dr. McCarthy testified that between about 11,000 and 8,000 years ago, the pop-ups would have been on dry land. Her evidence was that people would have been able to walk on dry land between Tobermory and Manitoulin Island at that time, without the need for a tunnel.

[405] Dr. McCarthy further testified that there was dense forest at that time that may have resembled a tree canopy and that it is plausible that cedar trees would have grown from either side of a pop-up. SON submits that if the pop-up had a canopy of trees, it could have resembled a tunnel.

[406] The defendants point out weaknesses in SON’s submissions about this story. The evidence does not show a pop-up reaching from Tobermory to Manitoulin Island. Those geographic features are not tunnels. A tree canopy is not mentioned in the story. And the specific location was not part of the traditional story before its modern telling.

[407] Given the above challenges with the submission that these stories show a connection to ancient times, along with the absence of evidence regarding how these stories were preserved over many thousands of years, these traditional stories do not establish a connection with the Aboriginal Title Claim Area.

[408] There is another traditional story that has geographical components and has more of an established connection with Anishinaabe occupation in what is now Canada. It is known as the Migration Story. The Migration Story is told in a book called The Mishomis Book: The Voice of the Ojibway (Minneapolis: University of Minnesota Press, 2010). The Mishomis Book is a respected book prepared by Elder Eddie Benton-Banai, who was the Grand Chief of the Three Fires Midewin Lodge. Chief Roote recognized the author as a respected knowledge holder and the book as a valuable resource on the history of the Anishinaabek.

[409] As told by Chief Benton-Banai in The Mishomis Book, the Migration Story appears to speak of an actual migration that is inconsistent with the suggestion that SON’s ancestors have occupied the area forever. In closing argument, SON submitted that the Migration Story told by Chief Benton-Banai speaks of a “spiritual migration” of the Anishinaabek, not an actual migration. SON disputes that this traditional story recounts historical fact.

[410] The Migration Story speaks of the Anishinaabe being on the east coast of North America and migrating westward, including through the St. Lawrence River and Great Lakes area. That account of the migration is also shown in historical expert material. Dr. Driben provided a map similar to the map in The Mishomis Book, illustrating the migration of the Anishinaabek:

[411] Due to the recognized importance of Chief Benton-Banai and his book, his traditional story is relevant to the submission that SON’s ancestors have been in the Aboriginal Title Claim Area forever. This Migration Story suggests otherwise.

[412] A number of community witnesses tried to dilute the significance of the Migration Story in The Mishomis Book, mainly through inadmissible hearsay evidence about the beliefs of Chief Benton-Banai. Chief Benton-Banai did not testify. SON has not proved that his Migration Story was about a spiritual, rather than an actual, migration.

[413] There are other migration stories that also suggest movement of the Anishinaabe people, in contrast with the position that ancestors of SON have been in the Peninsula area forever. One migration story speaks of an eastward migration rather than a westward one. There are others. Dr. von Gernet’s view was that most of the migration stories he gathered were not recounting historical fact. Most importantly, SON’s challenge to the historicity of Chief Benton-Banai’s Migration Story shows that it should not be assumed that traditional stories recount historical facts.

[414] I have taken a broad and generous approach to the oral history and related evidence, rather than being as rigorous as is suggested in the expert evidence. However, SON has not established that these traditional stories were passed down by ancestors over thousands of years. SON need not prove such a lengthy presence in the area in any event. Nor do I need to make a finding of precisely when ancestors of SON arrived in the area. Occupancy need only be shown as of 1763. There is considerable additional evidence relevant to that question.

Linguistics evidence about dialects in the Peninsula area

[415] SON submits that a comparison of Anishinaabemowin dialects in communities surrounding the Peninsula area supports a conclusion that there has been stability in the geographic location of SON for hundreds of years, showing their presence in the area in 1763. I conclude that this evidence provides some support for SON’s occupation in the general area, but not for a specific historical time period.

[416] Dr. Valentine, a linguistics expert, concluded that the language spoken at the current SON communities in the Peninsula area is a mixture of the grammar and vocabulary of two main Ojibway dialects in the area: Odawa/Ottawa and Southeastern. This shows what he described as long-term and stable contacts and relationships surrounding Odawa communities such as Wikwemikong and Walpole Island and Southeastern communities such as Rama and Curve Lake.

[417] Dr. Valentine’s opinion is based on about 25 years of work creating an online Anishinaabemowin dictionary and related activities including teaching and writing. This work has included extensive interviews of Anishinaabemowin speakers in many communities, including SON. His work to study and preserve that language and its variants is impressive. For this case, Dr. Valentine analyzed variants in Anishinaabemowin dialects for the SON communities and in other nearby Anishinaabe communities. However, Dr. Valentine himself agreed there were limits on what he, as a linguist, could attest to. Dr. Valentine’s expertise does not extend to opining on estimated time periods.

[418] While Dr. Valentine testified that SON has a deep interaction with both the Odawa and Southeastern dialect areas, as a linguist he could not say for how long. He said that as a linguist he did not know. He was invited to give some time estimates during his testimony and gave an uncertain reply. He said: “A couple of centuries, three centuries, four centuries. I don’t know. Somewhere in that range. A long time.” The range mentioned was not based on Dr. Valentine’s established expertise as a linguist. I do not place significant weight on this evidence. I also note that the estimate given does not necessarily include the relevant time, specifically 1763.

[419] Dr. Valentine was also frank to admit that the long-term contact with neighbouring communities that he relied on could occur through social, trade and political relationships, none of which he had studied in order to prepare his report.

[420] Dr. Valentine’s work about SON was done in 2012 and his conclusions about linguistics as of that time are deserving of significant weight. I find that his evidence still provides some support for SON’s occupation in the general area, when looking at the entirety of the evidence, including the archaeological evidence about the Peninsula area. However, his evidence does not prove when SON’s predecessors arrived in the Peninsula area or whether they were there as of 1763.

Archaeological evidence about who occupied the (dry) land nearby the claim area

[421] An array of archaeological[42] expert evidence has been put forward on the subject of whether ancestors of SON occupied the Aboriginal Title Claim Area as of 1763. This expert evidence is mainly about SON’s occupation of the dry land in the general area. As set out below, I conclude that the archaeological evidence supports SON’s pre-1763 connection with the Peninsula itself, and lands to its south.

[422] SON submits that the archaeological record is consistent with an in situ development[43] of an Odawa group, historically known as the Cheveux Relevées, on the Peninsula and the lands due south. SON submits that they developed from that Odawa group. In turn, SON submits that the presence of their ancestors on that dry land leads to their connection with the surrounding submerged land that forms the Aboriginal Title Claim Area.

[423] There are many archaeological sites, in what is now southern Ontario, where artifacts have been found that date back to the Paleo-Indian period that ended about 9,000 years ago. There are also sites with components from more recent archaeological periods, including the period of contact with Europeans in the 17th century, and more recently. Not surprisingly, there are many gaps and uncertainties in the available archaeological evidence since it stretches back over many thousands of years.

[424] Dr. Williamson was SON’s main expert witness on the archaeological evidence. He noted that the first appearance of humans in Ontario has not been accurately dated. He testified that it is thought that small bands of hunters arrived sometime after the draining of several large meltwater lakes about 12,500 years ago. There is limited evidence about these nomadic hunters. Further, as put by Dr. Williamson, the Great Lakes region was characterized by a dynamic pre-contact history that featured constantly changing communities and identities, with populations that were continually being renegotiated and redefined through social processes.

[425] In order to prepare his reports, Dr. Williamson conducted research looking for reports of archaeological evidence found in and around the Peninsula and the area south of the Peninsula. All of the sites Dr. Williamson identified are dry land sites, not located in the submerged land that forms the Aboriginal Title Claim Area. On the Peninsula, most of the sites are along the coast.

[426] An archaeological site may vary from small to large. A site may only contain a few artifacts. Further, some of the sites referred to by Dr. Williamson are only possible sites, and they have not been investigated in detail. It is therefore not helpful to simply focus on the number of archaeological sites he identified. Moreover, Dr. Williamson noted that sites are often affiliated to a culture based on the location of the site, rather than the other way around. And, in many contexts, it is difficult to determine cultural affiliation. As well, many sites