Case Summary of Chippewas of Nawash Unceded First Nation v Canada, 2023 ONCA 565
Introduction
A recent decision from the Ontario Court of Appeal considered two claims brought by the Saugeen First Nation and the Chippewas of Nawash Unceded First Nation (collectively, “SON”). The first is a claim of aboriginal title to submerged lands in one of the Great Lakes. The second is a claim for breach of a clause in a historical treaty requiring the Crown to protect surrendered lands from encroachment by settlers.
The Court found no reason to disturb the trial judge’s findings that the First Nation had failed to establish title to the entire claim area. However, the Court returned the decision to the trial judge for further evidence and submissions on whether SON can establish title to a smaller portion of their claim area. Additionally, the Court agreed with the trial judge that the Crown breached the honour of the Crown in relation to the fulfilment of the historical treaty, but that no fiduciary duty was owed by the Crown.
This is the first time an appeal court has considered the application of the Aboriginal title test to claims to title over waterbodies.
Key takeaways
- Ontario courts apply the Aboriginal title test to submerged lands, extending the test’s scope to waterbodies for the first time.
- The Court upheld that the Chippewas of Nawash Unceded First Nation failed to establish Aboriginal title to the entire claim area, confirming the need for physical possession and use.
- The Crown was found to have breached Treaty 45 ½ and the honour of the Crown by failing to diligently implement the treaty promise to protect surrendered lands from encroachment, but no fiduciary duty was found to be owed to the First Nation.
- Significant for First Nations that want to bring Aboriginal title claims over waterbodies in their territories, and for shedding further light on the relationship between the honour of the Crown and diligent implementation of treaty promises.
Factual background
SON’s traditional territory is in and around the Bruce Peninsula, which juts into Lake Huron. SON are fishing peoples and have an established aboriginal right to fish in their traditional territory. Before the Court, SON claimed aboriginal title to part of Lake Huron surrounding the Bruce Peninsula, with the U.S. border as the western boundary of their claim. They do not claim aboriginal title to the Bruce Peninsula itself.
SON’s ancestors and the Crown negotiated Treaty 45 ½ in 1836, which surrendered the southern Bruce Peninsula to the Crown in exchange for a treaty promise that the Crown would protect the peninsula from encroachment by settlers. Treaty 72 was signed in 1854, which surrenders almost all of the rest of the peninsula to the Crown. Pressure from encroachment was a major issue for SON’s ancestors in its negotiation of both treaties. SON claims that Treaty 45 ½ was breached, and that the Crown failed to act honourably and breached the fiduciary duty owed to SON in its implementation of Treaty 45 ½ and in its negotiation of Treaty 72.
Legal issues
On the title claim, before assessing if SON had met the test for Aboriginal title, one issue was whether the test for Aboriginal title, which had so far been only applied to claims to dry land, applies to submerged land. A key sub-issue was the interaction between the public right of navigation and aboriginal title.
On the treaty claim, the main issues were whether the Crown breached Treaty 45 ½, and in doing so, whether the Crown breached the honour of the Crown and its fiduciary duty owed to SON. With respect to Treaty 72, the main issue was whether the Crown breached its duty to act honourably and its fiduciary duty owed to SON in the negotiation of Treaty 72. Additionally, Ontario argued that it was immune from a claim for breach of fiduciary duty in this case.
Court ruling on the Aboriginal title claim
The Court confirmed that the test for Aboriginal title set out by the Supreme Court of Canada in Tsilhqot’in v British Columbia, 2014 SCC 44, applies to claims to aboriginal title to the bed of waterbodies.[1] No extra hurdles or modification of this test is needed.
The Court of Appeal upheld the trial judge’s findings that SON had not met the test to establish its claim to Aboriginal title. The evidence showed occupation of the Bruce Peninsula and some of the claim area for fishing, but there was little to no physical use of the majority of the claim area. While spiritual connection to the claim area is relevant, it is not sufficient to overcome the absence of physical possession required to establish Aboriginal title.[2] SON’s evidence of its attempt to control fishing and fisheries did not translate to an attempt to control water spaces more generally.[3] Nor did the historical events put into evidence by SON demonstrate control of the submerged title claim area by SON’s ancestors.[4]
The trial judge was concerned that Aboriginal title, which includes the power to exclude others from the title area, is not compatible with the public right of navigation. SON argued that it is open to the courts to define aboriginal title by removing from it the right to exclude the public for the purposes of navigation. The Court of Appeal did not reject this argument, but said that it is not possible to make such a determination until a claim for Aboriginal title in submerged lands is established.
Even though SON did not establish title to the entire claim area, the Court of Appeal returned the decision to the trial judge for further submissions to attempt to establish title to a smaller portion of the title claim area.
Court ruling on the treaty breach claim
The trial judge found that the Crown breached Treaty 45 ½ and the honour of the Crown in respect of the Crown’s treaty obligation to protect the peninsula from encroachment by settlers. The Crown failed to diligently implement the treaty promise. The duty to act diligently requires more than just being aware of a problem – there must be action to prevent it, and given the importance of the treaty promise to SON, proactive and specific action on the part of the Crown.[5] The Court of Appeal found no reason to interfere with this finding. However, both the trial judge and the Court of Appeal rejected SON’s argument that in breaching the treaty promise, the Crown also breached the fiduciary duty it owed SON this argument. The treaty promise to protect against encroachment did not amount to direct administration of SON’s lands that gives rise to a fiduciary duty.[6]
Ontario tried to argue that SON was prevented from claiming against Ontario for breach of fiduciary duty because the Ontario Crown proceedings legislation does not explicitly remove immunity against Ontario for that type of claim. The Court of Appeal rejected this argument.
Impact & considerations
This case has particular relevance for First Nations that have waterbodies in their territory and are currently or are considering bringing a claim to aboriginal title to these waterbodies. It confirms that the Aboriginal title test, which had until this case been applied only to dry land, applies to claims for Aboriginal title to submerged land. A lingering concern that has been addressed by this case but not resolved is whether aboriginal title to submerged lands and the public right of navigation are compatible. This will be something for a First Nation to grapple with in bringing an aboriginal title claim to submerged lands.
The Court of Appeal confirmed the relationship between the honour of the Crown and the duty to diligently implement treaty promises. Diligent implementation requires action, not just awareness, of a problem that is compromising the treaty promise. First Nations wanting to argue that a fiduciary duty arises in the context of a treaty promise dealing with management of surrendered lands should be aware of the Court’s decision in this case.
While the Court of Appeal rejected the argument made by Ontario that SON could not claim against them for breach of fiduciary duty, this argument may only apply to the Ontario context. First Nations in other provinces, particularly BC, should be cautious of relying on this part of the decision.
Conclusion
The Ontario Court of Appeal has provided some guidance on Aboriginal title claims to waterbodies. While there are outstanding issues, notably whether aboriginal title and the public right of navigation can co-exist, this case and the trial decision can be reviewed to understand what kinds of evidence should be produced in a claim for title to submerged lands. This decision also provides an example of what a failure to diligently implement a treaty promise looks like, and how that relates to fiduciary duties and the honour of the Crown.
To understand more about how this decision affects your First Nation, contact our lawyers to discuss further.
Further reading
Read the full case here: https://canlii.ca/t/jzxbf
[1] ONCA decision, para. 26.
[2] ONCA decision, para. 41.
[3] 2021 ONSC 4181, para. 452.
[4] ONSC decision, para 468.
[5] ONCA decision, paras. 150-151.
[6] ONCA decision paras. 203-206.
