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Shipping and Navigable Water - Navigable Water

. 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 (inconclusively) cites the trial court's discussion of navigable waters from an aborginal perspective:

(5) Did the trial judge misperceive the common law regarding navigable waters and its relationship to Aboriginal title?

(a) The trial judge’s holdings on the common law incidents of navigable waters

[74] The trial judge noted that flowing water was incapable of ownership at common law, because it is a common resource: see G.V. La Forest and Associates, Water Law in Canada: The Atlantic Provinces (Ottawa: Regional Economic Expansion, 1973), at pp. 223-24, 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] S.C.R. 698.

[75] She observed that SON’s claim for ownership of the lakebed, the contents of the water, and the right to exclude others from the water above the submerged land, was a claim for exclusivity, an element that was not part of the historical practices SON relied upon. She further noted that exclusivity was an element “basic to the notion of title at common law.”

[76] SON relied upon the common law presumption ad medium filum aquae (“as far as the middle of the stream”) to show that the common law would recognize ownership of the bed of a body of water. As noted by the trial judge, the ad medium presumption is a common law rule by which the owner of land adjacent to non-tidal waters is presumed to own the waterbed to the midpoint of those waters:

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 waters, 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.

[77] The trial judge doubted that, at common law, the ad medium presumption could have any application to the Great Lakes and referred to authorities suggesting that the distinction between tidal and non-tidal waters had been abandoned in Canada: see e.g., Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, at p. 54, per La Forest J. In R. v. Nikal, 1996 CanLII 245 (SCC), [1996] 1 S.C.R. 1013, Cory J. indicated, at para. 72, that 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.”

[78] In any event, the trial judge observed that, whether tidal or non-tidal, navigable waters were subject to the public right of navigation which, she concluded, was incompatible with SON’s claim of exclusivity.

[79] The trial judge also reviewed comparative law from the United States, Australia, and New Zealand to assess SON’s argument 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.”

[80] Regarding the United States, the trial judge referred to expert evidence from an American lawyer to the effect that where land established as subject to the American counterpart to Aboriginal title includes submerged land that is navigable, that title is subject to “navigable servitude”, meaning that the Aboriginal titleholder cannot interrupt or interfere with the United States government’s paramount power over navigable waters, including authority over navigation, flood control, power production, and national defence. The trial judge did not find the small number of treaties that included submerged land to be of any particular assistance.

[81] The trial judge also reviewed regimes in place in Australia and New Zealand and concluded that they did not support SON’s arguments.[6]

[82] In Australia, she noted, the Native Title Act 1993 (Cth), 1993/110, expressly includes the possibility of native title to “land or waters”. Despite this, the High Court of Australia, in Commonwealth of Australia v. Yarmirr, [2001] HCA 56, 184 A.L.R. 113, concluded that while native title rights and interests in the seabed may exist, common law rights of fishing, navigation, and innocent passage mean that those native title rights can only be non-exclusive. The majority held that public rights of navigation, fishing, and innocent passage were not consistent with a claim of exclusive native title, even where the claimants made their title claim subject to those rights, and that the assertion of sovereignty was “antithetical” to exclusive native title: Yarmirr, at para. 100.

[83] Jurisprudence from New Zealand suggested to the trial judge that there could be rights to some submerged land there, but the legislative regime expressly preserves the right of public navigation over those lands. The courts in New Zealand have not yet weighed in on the scope of possible title to submerged land.

[84] Ultimately, the trial judge concluded that, “[g]iven both the Indigenous and the common law perspectives, … 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.”

[85] She made the following observations in support of that conclusion:

[N]one 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.

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.

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.

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.

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.

[86] The trial judge also expressed concern that the Title claim area extended to the international boundary with the United States, and that SON sought the right to control that area for all purposes, including with respect to national defence. She noted that “[c]ontrol of a border is an incident of sovereignty, and the state is expected to exercise it in the public interest”, citing Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911, at paras. 160 and 163.

[87] SON invited the trial judge to grant Aboriginal title to the area claimed, but subject to the proviso that title did not exclude the public right of navigation. She declined to do so, citing the fundamental inconsistency between Aboriginal title and common law rights, as recognized in Yarmirr, holding “[t]his alternative does not translate into Aboriginal title to the claimed land.”

(b) Arguments on appeal about the public right of navigation

[88] The positions of the parties have evolved. In closing argument at trial and on appeal, SON submitted that it would be open to a court to define Aboriginal title by removing from it the right to exclude the public for the purposes of navigation. Ontario argues that it holds sovereign ownership of the lakebed by way of a public trust, for the protection of public interests in navigation and fishing. It takes the position that the lakebed is Crown land underlying waters used for navigation and is therefore incompatible with Aboriginal title. Canada now says that it agrees that the public right of navigation can be reconciled with Aboriginal title.

(c) Compatibility of the public right of navigation and Aboriginal title

[89] The right of public navigation over navigable waters has long been recognized in this province. French civil law governed until 1792, when the common law of England was substituted “in all matters of controversy relative to [p]roperty and [c]ivil [r]ights”: S.U.C. 1792 (32 Geo. III), c. 1, s. 3. Under both French civil law and English common law, there was a public right of navigation over navigable waters, irrespective of ownership of the bed of the waterbody: Regina v. Meyers, [1853] O.J. No. 204 (U.C. Ct. Com. Pl.), at para. 106; see also Water Law in Canada, at pp. 178-79; Keewatin Power Co. v. Kenora (Town) (1908), 16 O.L.R. 184 (C.A.). The public right of navigation over tidal waters has existed in England since the earliest times: Caldwell v. McLaren, [1884] UKPC 21, 9 A.C. 392.

[90] The Constitution Act, 1867 created Canada and the four provinces of Ontario, Quebec, Nova Scotia, and New Brunswick. Section 109 gave each province the entire beneficial interest in all lands within its boundaries, which, at the time of union, were vested in the Crown: St. Catharines Milling & Lumber Company v. The Queen, [1888] UKPC 70, 14 A.C. 446. This grant excepted those lands reserved in Schedule 3, which provides that certain public works and property were to be the property of Canada, including, among other things: canals, with lands and waterpower connected therewith; public harbours; lighthouses, piers, and Sable Island; and rivers and lake improvements. The Constitution Act, 1867, also gave Canada legislative authority over navigation and shipping and over “Indians and Lands reserved for the Indians”: ss. 91(10) and (24).

[91] For the purposes of assessing jurisprudence about title to submerged lands, we agree that the Great Lakes are analogous to English tidal waters. In In Re Provincial Fisheries (1896), 1896 CanLII 76 (SCC), 26 S.C.R. 444, at p. 520, Strong C.J. stated that “[i]t appears from several cases decided in the courts of the province of Ontario that [the Great Lakes and navigable rivers] are to be considered navigable waters and that the rule of the English law as to navigable and tidal waters applies to them” (see also Dixson v. Snetsinger (1873), 23 U.C.C.P. 235). The result is a rebuttable presumption of Crown ownership of the lakebed of Lake Huron and Georgian Bay.

[92] Similarly, in Friends of the Oldman River, La Forest J. observed, at p. 54, that, for the purposes of the right of navigation, the distinctions between tidal and non-tidal waters had been abandoned and that the right of navigation is paramount to the rights of the owner of the bed of water, even where the owner is the Crown. The public right of navigation can only be modified or extinguished by an authorizing statute and a Crown grant of land, alone, does not include the right to interfere with navigation: Friends of the Oldman River, at p. 55. For instance, under statutes like the Canadian Navigable Waters Act, R.S.C. 1985, c. N-22, the federal Crown could authorize the construction of structures (such as bridges, booms, dams, docks, and piers) upon navigable waters which would otherwise substantially interfere with navigation.

[93] Not every use of submerged lands will interfere with navigation. As noted in Water Law in Canada, at p. 186:

“It is now doubtful, to say the least, that every structure built in the bed of navigable water that may interfere in some slight degree with navigation is a public nuisance. Whether an obstruction constitutes a public nuisance is a question of fact to be determined having regard to all the facts of the particular case. This gives the courts some scope to make reasonable adjustments when the public right of navigation comes in conflict with other rights. In any event it is clear that not every work placed in navigable waters interferes with navigation.”

Some instances of Aboriginal title to submerged lands may have no practicable effect on the public right of navigation and may be entirely compatible with it.

[94] The common law has permitted private ownership of discrete areas of property on the seabed or lakebed of tidal waters or waters like the Great Lakes. In Attorney General v. Emerson, [1891] A.C. 649, the House of Lords recognized that a private domain (though pre-dating the Magna Carta) could include the foreshore and title to the bed of tidal waters. In Water Law in Canada, at p. 241, La Forest notes that the Crown can convey title to the beds of navigable waters.

[95] In Yarmirr, at paras. 96 and 98, the High Court of Australia recognized that the public right of navigation does not require access to every part of the territorial sea, but concluded that there was a fundamental inconsistency between the “asserted native title rights and interests and the common law public rights of navigation and fishing”:

It may readily be accepted that neither the public right to navigate, nor the right of innocent passage, require free access to each and every part of the territorial sea. Neither right is infringed, for example, by erecting a pier from the shore to a point well out into the territorial sea even though that pier prevents vessels from using the part of the sea on which it stands. Nevertheless, the tension between, on the one hand, the rights to “occupy, use and enjoy the waters of the determination area to the exclusion of all others” and “to possess” those waters to the exclusion of all others (which the claimants sought in their amended notice of appeal to this Court) and, on the other, the rights of fishing, navigation and free passage is self-evident.

...

When that is done in the present case, it is seen that there is a fundamental inconsistency between the asserted native title rights and interests and the common law public rights of navigation and fishing, as well as the right of innocent passage. The two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the other public and international rights.

[96] At this stage, it is unnecessary for this court to assess whether the public right of navigation is incompatible with Aboriginal title.

[97] Whether or not Aboriginal title to a portion of the Great Lakes is compatible with the right of public navigation cannot be assessed until the extent of Aboriginal title in submerged lands is determined. If SON were able to satisfy the Tsilhqot’in test and establish Aboriginal title to the claim area, or a discrete portion or portions of the claim area, a court would then be able to assess whether such Aboriginal title to submerged land was not cognizable due to common law public rights, or whether such Aboriginal title would have such a substantial effect on public navigation as to create an incompatibility between Aboriginal title and the public right.

[98] The parties take different positions as to the consequences that would follow were SON to establish Aboriginal title to the claim area. Ontario says that Aboriginal title to the claim area is not possible because of the incompatibility with the public right of navigation and the public interest. SON takes the position that because of its prior occupation of the claim area, any incursion upon its land must pass the test for infringement of an Aboriginal right, or, perhaps that Aboriginal title could be made subject to the public right of navigation. Canada says that Aboriginal title can be reconciled with the public right of navigation. That question is not before us. It would not be appropriate to express an opinion about an issue that is now hypothetical.

[99] In Ngati Apa v. Attorney-General, [2003] NZCA 117, 3 N.Z.L.R. 643, the Court of Appeal of New Zealand recognized that many questions cannot be answered until the extent of Aboriginal title is determined. That court noted, at para. 9, that, “[i]n the past, claims to property in areas of foreshore and seabed seem to have identified relatively discrete areas comprising shellfish sandbanks, reefs, closely-held harbours or estuaries, and tidal areas or fishing holes where particular fish species were gathered”, but went on to note that many other questions could not be answered until the nature and extent of the interest was determined.

[100] In this case, until the extent of Aboriginal title in any part of the submerged lands, if any, is determined, it is not possible to determine whether such title is incompatible with the right of public navigation.