Ontario Court of Appeal Confirms: Trial Judges Required to Consider Evidence of Aboriginal Title in All Parts of the Claim Area


On Wednesday August 30, 2023, the Ontario Court of Appeal became the first appellate court in Canada to rule on the issue of Aboriginal title to submerged lands.

Two important and novel principles emerge from this decision:

  • trial judges are required to consider Aboriginal title not just to the whole claim area articulated by the plaintiff, but also to smaller areas inside the claim area that meet the test for Aboriginal title; and
  • the appropriate test for considering Aboriginal title to submerged lands is the test laid out in Tsilhqot’in for proving aboriginal title to dry land, not the test laid out in Van der Peet for proving an Aboriginal right.


The Chippewas of Nawash Unceded First Nation and the Saugeen First Nation (collectively, “SON”), two nations located in the Bruce Peninsula area of Ontario sought a declaration of Aboriginal title to a large area of submerged lands in Lake Huron and Georgian Bay (the “Claim Area”) based on their historic occupation and control of the area. SON also sought remedies associated with their treaty rights and the Crown’s fiduciary duty, however this post does not address this aspect of the decision.

JFK Law LLP represented intervenors Songhees and Esquimalt (collectively the “Lekwungen”), two nations in coastal BC who have long experience managing submerged lands in their traditional territory. Haida Nation, Walpole Island First Nation, and Heiltsuk Nation also intervened on the issue of title to submerged lands.

The Trial Decision

At trial, the judge dismissed SON’s lawsuit on the basis that there was insufficient evidence to establish title to the whole of the Claim Area. She applied the Van der Peet test because in her view Aboriginal title to submerged land was a novel Aboriginal right separate from terrestrial Aboriginal title, requiring original analysis of whether it could constitute an Aboriginal right. She also applied the Tsilhqot’in test. On both tests, she concluded that SON had failed to meet its burden of proof for title to the Claim Area.

The trial judge declined to consider if any smaller areas or portions of the Claim Area could support a finding of Aboriginal title, citing that the plaintiff had not advanced alternative boundaries in pleadings, evidence or submissions (para 596), and noting that the defendants could not respond properly without this articulation of alternative boundaries.

Issues on Appeal

On appeal, SON raised several issues with the decision: that the trial judge applied the wrong test for title, failed to give weight to the Indigenous perspective, set too high a threshold for both occupation and control of land, improperly analyzed the intersection between public navigation and Aboriginal title, and applied an all-or-nothing approach to considering Aboriginal title.

The Lekwungen’s Intervention

The trial judge’s focus on proof of title to the entire Claim Area or nothing at all was a central ground of appeal for the plaintiffs. At the Ontario Court of Appeal, JFK Law LLP assisted the Lekwungen with their intervention urging the court not to set a precedent approving this all-or-nothing approach.

Standing alongside the plaintiffs, the Lekwungen argued that it is incumbent on a trial judge to consider not only whether the overall Claim Area supports a finding of title, but also whether the evidence establishes title to smaller areas inside the Claim Area.

The Lekwungen have long experience managing their coastal territory. They know that their ocean territory varies widely throughout the territory. Some areas are more susceptible to control. Occupation of submerged lands, like occupation of dry lands, depends on the natural characteristics of the land, the resources found in each location, and the spiritual and cultural significance of certain places.

The Lekwungen made this unique perspective heard, noting that the trial judge in Tsilhqot’in had wrestled with these same issues and had made comprehensive and detailed findings in order to arrive at the portions of the claim area which in his view supported a finding of title. Both SON and the Lekwungen argued that trial judges hearing title cases are best positioned to deal with these issues, and that justice would not be served by requiring Indigenous nations to launch separate lawsuits for each potential variation on the boundaries to an Aboriginal title area.

The Ontario Court of Appeal Decision

The Court of Appeal agreed. It held:

SON should not have to begin a new proceeding to determine this issue. The trial judge in this case is uniquely qualified to assess this request because of her long familiarity with the evidence and issues. The trial judge can devise a procedure that is fair to both sides, including further pleadings, discovery, and hearings that she deems necessary to determine whether the Tsilhqot’in test has been satisfied for any limited portion of the broader area SON had initially claimed.

Accordingly, the court remitted the matter back to the trial judge for a judgement on the question of Aboriginal title to a portion of the Claim Area, after further evidence and submissions.

This is a significant ruling, the first appellate court decision to deal substantively with the issue of Aboriginal title claims to submerged lands, and the first to comment on the obligations of trial courts in these cases. The court recognized the immense burden that would be placed on Indigenous nations if required to advance a new lawsuit for every possible articulation of boundaries to their Aboriginal Title claim area. Instead, the court affirmed that if the evidence allows for a finding of Aboriginal title to a subset of a Claim Area, then the judge should make that finding, and if there is insufficient evidence or specificity on the boundaries of the title area, the trial judge can devise a process that allows those issues to be resolved. The decision calls on trial judges to resist dismissing claims without fully resolving the issues, recognizing the immense time and cost associated with bringing a title claim to trial.[1]See for example the Tsilhqot’in case which took 25 years, a 339-day trial, and cost at least $25 million (Woodward & Company Lawyers LLP v The Tsilhqot’in National Government, 2021 BCSC … Continue reading

The decision is in step with the recent BC trial court decision in The Nuchatlaht v British Columbia, 2023 BCSC 804, in which the court held that title was not proven for the entire Claim Area, but that the plaintiff could seek a further hearing to determine if title could be proven to smaller portions of the Claim Area.

Another recent case on the issue from the Supreme Court of BC, Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15, saw the trial judge decline to make findings on title to submerged lands in the face of competing claims from Indigenous nations that were not part of the litigation. The Saik’uz decision is currently under appeal, awaiting judgement from the British Columbia Court of Appeal. While not bound by the Ontario decision, if the BC court decides to make findings on Aboriginal title to submerged lands it could adopt the approach used in SON and Nuchatlaht and remit the matter to the trial judge for further consideration. It is also possible the BC court could make findings conflicting with the Ontario decision, in which case the issue of submerged title would remain unresolved pending a decision from the Supreme Court of Canada.

Additional rulings on Aboriginal title

In addition to the findings on drawing alternative boundaries, the decision yields other important principles for Aboriginal title, in particular, that the Tsilhqot’in test is sufficiently flexible to be adapted to a claim for submerged lands, and there is no need to resort to the R. v. Van der Peet Aboriginal rights test (para 26).

The court left for another day the question of whether the public right of navigation on navigable waters is incompatible with Aboriginal title, but noted that at the hearing of the appeal, Canada had conceded that the public right of navigation can be reconciled with Aboriginal title. In obiter, the court opined that the Great Lakes are analogous to English tidal waters, resulting in a rebuttable presumption of Crown ownership of the lakebed. The court suggested that if a trial judge finds that Aboriginal title is established to submerged lands, the judge will then consider whether that title would have such a substantial effect on public navigation as to create an incompatibility.

Looking forward

The parties have 60 days from the date of the decision to seek leave to appeal the Ontario Court of Appeal’s ruling to the Supreme Court of Canada.



1 See for example the Tsilhqot’in case which took 25 years, a 339-day trial, and cost at least $25 million (Woodward & Company Lawyers LLP v The Tsilhqot’in National Government, 2021 BCSC 16, para 18); similarly the ongoing title case of Cowichan Tribes v Canada (Attorney General), 2022 BCSC 1586 which has now absorbed “well over 400 days” (para 1)