CITATION: Saugeen First Nation et al. v. The Attorney General of Canada et al., 2021 ONSC  
4181  
COURT FILE NOS.: 94-CQ-050872CM and 03-CV-261134CM1  
DATE: 20210729  
ONTARIO  
SUPERIOR COURT OF JUSTICE  
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BETWEEN:  
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SAUGEEN FIRST NATION and THE  
CHIPPEWAS OF NAWASH UNCEDED  
FIRST NATION  
) 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  
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Plaintiffs  
and –  
Michael Beggs, Michael McCulloch, Barry  
Ennis, Carole Lindsay, Alexandra Colizza  
and Gary Penner, for the Defendant The  
Attorney General of Canada  
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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.  
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  
Defendants  
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  
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  
) 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  
Defendants  
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..................................................................................................... 14  
Presumption of regularity ..................................................................................................... 14  
Experts’ use of secondary sources ........................................................................................ 15  
Evidence of Indigenous Customary Law.............................................................................. 15  
Constitutional framework ..................................................................................................... 16  
Part 3 - Aboriginal Title Claim ...................................................................................................................17  
Analysis of whether there is an Aboriginal right to title in the lake bed .................................. 18  
SON’s specific claim ................................................................................................................ 23  
SON’s distinctive culture...................................................................................................... 27  
SON’s historical practices, customs or traditions................................................................. 32  
Translation into a modern legal right.................................................................................... 41  
The Tsilhqot’in Nation test....................................................................................................... 53  
SON occupation (including continuity) and exclusivity in the claim area ........................... 57  
Application of Tsilhqot’in Nation test.................................................................................. 89  
Changing the claimed Aboriginal right..................................................................................... 93  
Aboriginal title to Chantry Island and Rabbit Island................................................................ 94  
Part 4 - Treaty Claim...................................................................................................................................96  
The issues in the Treaty Claim.................................................................................................. 96  
Treaties and treaty interpretation .......................................................................................... 97  
The honour of the Crown.................................................................................................... 100  
Treaty-making and Crown policy........................................................................................... 103  
Treaties 45 and 45½................................................................................................................ 106  
The protection of the Peninsula between 1836 and 1854 ....................................................... 117  
Squatting and the tools available to address squatting............................................................ 120  
Crown actions that were or could have been taken to protect the Peninsula.......................... 131  
Squatting escalating in the 1850s due to the pressure for land............................................... 140  
Breach of the encroachment clause and the honour of the Crown ......................................... 141  
Treaty 45½ did not create a reserve........................................................................................ 145  
SON’s objections to the negotiation process leading to Treaty 72......................................... 149  
Negotiations leading up to Treaty 72.................................................................................. 149  
The negotiation of Treaty 72............................................................................................... 153  
Breach of the honour of the Crown..................................................................................... 164  
Whether a fiduciary duty arose to supplement the treaty and honour of the Crown .............. 165  
Crown immunity defence........................................................................................................ 173  
Laches defence........................................................................................................................ 173  
Treaty 72 impact on SON harvesting rights ........................................................................... 182  
Part 5 - Municipal defendants...................................................................................................................190  
Part 6 - Orders...........................................................................................................................................195  
Schedule “A” – Expert Witnesses.............................................................................................................198  
Expert witnesses called by SON......................................................................................... 198  
Expert witnesses called by Canada..................................................................................... 201  
Expert witnesses called by Ontario..................................................................................... 203  
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.  
1 The phrase “the honour of the Crown” refers to the principle that servants of the Crown must  
conduct themselves with honour in their dealings with First Nations when acting on behalf of the  
sovereign.  
 
[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  
2 R. v. Jones (1993), 14 O.R. (3d) 421 (Prov. Ct.).  
3 In these reasons, general references to “the defendants” refer to Canada and Ontario only. The  
issues about the municipal defendants are addressed in a separate section.  
4 All references to the municipal defendants exclude the Corporation of the County of Grey,  
which entered into a settlement with SON in August 2020.  
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 Aboriginal5 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”:  
5 SON notes that the terms “Aboriginal” and “Indigenous” are sometimes used interchangeably.  
When referring to a rights claim, SON generally uses the term “Aboriginal” in keeping with the  
use of that term in s. 35(1) of the Constitution Act, 1982, being Schedule B to the Canada Act  
1982 (U.K.), 1982, c. 11. Both terms have been used by the parties, and I use both terms in these  
reasons, depending on the context.  
   
[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  
6 Generally, the area at issue in the Aboriginal Title Claim begins at the shoreline of Lake Huron,  
eleven miles south of Goderich, extends westward into Lake Huron to the Canada-United States  
boundary, and continues north roughly parallel to the Peninsula. To the north, the area runs  
through Lake Huron between the Peninsula and Manitoulin Island. To the east, it extends out to  
the middle of Georgian Bay, and south, ending between Meaford and Collingwood. The light  
blue area is marked on the map as the “Aboriginal Title Claim Area”. In closing submissions,  
SON decreased the Aboriginal Title Claim Area by removing the triangular part east of the black  
line running north from the shoreline between Meaford and Collingwood.  
7
Neyaashiinigmiing is also referred to in the trial evidence as the area of Cape Croker, and both  
names are therefore used in these reasons.  
8 The trial, including SON’s written closing submissions, was entirely focused on SON’s claim  
for Aboriginal title to submerged land. I raised the question of islands in oral closing  
submissions. SON confirmed at that time that their claim also extended to these two islands.  
 
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] 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  
9
Under r. 36 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.  
10 There is one narrow exception regarding certain evidence about the burning of documents.  
Although it was described as a credibility issue, I conclude below that it is a reliability issue.  
11 I have considered the evidence of all of the witnesses, even if their names are not expressly  
mentioned in these reasons.  
12 SON objected to Dr. von Gernet being accepted as an expert.  
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] 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  
13 Under the Authenticity Agreement, historical documents are those created before April 28,  
1994, when the Treaty Claim was commenced.  
14 In some instances, SON seeks to rely on facts from articles or reports that have not been  
admitted under the Authenticity Agreement. Some of those facts are supported by trial evidence.  
Otherwise, they are not evidence in this trial.  
15 See, e.g., R. v. Jones.  
   
evidence with a consciousness of the special nature of [A]boriginal claims is critical to the  
meaningful protectionof Aboriginal and treaty rights: Mitchell 2001, at para. 37, per McLachlin  
C.J.; Delgamuukw v. British Columbia, [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  
historyin 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,  
[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 Midewin16  
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  
16 Karl Keeshig testified that the Midewin beliefs are a type of faith, analogous to the church for  
other nations.  
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.  
Expertsuse 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] 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  
traditions17 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  
17 General references to “practices” in these reasons include practices, customs and traditions.  
   
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] 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 ManiUtenam), 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 landwhere 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] 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. 150-51, 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] 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 tanistry18 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.  
18 Under this custom, the “most worthy” male inherited the family estate.  
[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] 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 purposesor 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.  
19 A 1976 Band Council resolution asserting sovereignty over the Aboriginal Title Claim Area  
sets out these boundaries.  
[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