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Indigenous - Aboriginal Rights. Chippewas of Nawash Unceded First Nation v. Canada (Attorney General)
In Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered an action where an indigenous group "sued Canada and Ontario for a declaration that they have Aboriginal title to submerged lands in a large section of Lake Huron and Georgian Bay, surrounding the Bruce Peninsula (the “Title claim”)" and "for breach of the promise made by the Crown in 1836, in Treaty 45 ½, to protect SON’s land from encroachments by “the whites” (the “Treaty claim”)".
In these quotes the court considers the distinction between aboriginal 'right' and aboriginal 'title':(1) Did the trial judge confuse the tests for Aboriginal rights and Aboriginal title?
[22] At the time of the trial, the Tsilhqot’in test had not yet been applied to submerged land. SON urged the trial judge to apply that test to their claim. Because the application of the Tsilhqot’in test to submerged land was novel, the trial judge took the precaution of considering whether the claimed right also met the test for an Aboriginal right.
[23] The test for an Aboriginal right is different from the test for Aboriginal title. The test for an Aboriginal right asks whether the activity was integral to the distinctive culture of the claimant group before contact with European societies, not at the later time of the assertion of Crown sovereignty in 1763: R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507, at paras. 46, 60. Further, the activity must have been “a central and significant part of the society’s distinctive culture”: Van der Peet, at para. 55.
[24] Here, the trial judge applied the test for an Aboriginal right, as established in Van der Peet and more recently set out in Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535, as a precaution due to the novelty of the claim. She applied the test to the circumstances existing at the date the Crown asserted sovereignty. She went on to later apply the Tsilhqot’in test for Aboriginal title.
[25] The trial judge’s analysis under the umbrella of an Aboriginal rights claim did not taint her analysis of the test for Aboriginal title. When referring to the Aboriginal rights test, she acknowledged that “there is some overlap between [that test] and the Tsilhqot’in test, but they are not the same. It is therefore also important that, as the trial judge, I make the factual findings needed for both issues.” The trial judge’s reasons make it clear that she applied the tests for sufficiency of occupation, continuity, and exclusivity in relation to the Aboriginal title claim. Her observation that SON had not demonstrated that their ancestors had a connection with the claimed land that was of central significance to their distinctive culture did not affect that analysis.
[26] The trial judge’s consideration of the Aboriginal rights test was unnecessary. The Tsilhqot’in test is sufficiently flexible to be adapted to a claim for submerged lands. The trial judge’s Aboriginal rights analysis did not undermine her analysis of SON’s claim to Aboriginal title.
[27] In any event, the distinct approaches to Aboriginal rights and Aboriginal title are not conceptually alien to one another. As noted by the minority in R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220, at para. 140, echoing observations in Delgamuukw, “anyone considering the degree of occupation sufficient to establish title must be mindful that aboriginal title is ultimately premised upon the notion that the specific land or territory at issue was of central significance to the aboriginal group’s culture.” This connection explains the insistence in Tsilhqot’in on a strong physical presence on the claimed territory. As recently reaffirmed by the Supreme Court, “Aboriginal title is thus a sub-category of Aboriginal rights”: Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, [2020] 1 S.C.R. 15, at para. 27.
[28] We accordingly reject SON’s argument that the trial judge erred by analyzing their claim for Aboriginal title through the lens of the test for an Aboriginal right. The trial judge’s precautionary consideration of the Aboriginal rights test did not taint her analysis of the Aboriginal title test, which extends to submerged lands.
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