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Great Lakes Article:

Battle is on for Great Lakes
By Christine J. Mingie
Toronto Star
Published August 3, 2005

You may not realize it, but there is a battle coming your way. A big battle. So big that it may knock you right off your land. Literally.

It's the battle for the Great Lakes and whether you like it or not, it's coming to your backyard or to your cottage and everywhere else in south-central Ontario. It may cost you millions of dollars to defend and may last for decades.

Who are the players in this battle and why don't you know about it? The players are the Anishinabek Nation, which represents 42 aboriginal bands, and the governments of Canada, Ontario, Quebec and the eight U.S. states that border the Great Lakes. You may not know about the battle until it's too late because it will be fought in the courtrooms of the nation.

A month ago, the Anishinabek Nation approved a resolution authorizing their leaders to take legal action to formally assert a claim of aboriginal title and aboriginal rights to all of the waters in the Great Lakes Basin, which captures all the rivers, lakes, tributaries and waterways that flow into the Great Lakes.

The claim would extend from Thunder Bay east to the Ottawa Valley, from the north shore of Lake Huron and Manitoulin Island all the way to Chicago. The gist of the claim would be an assertion by the Anishinabek Nation that they have title to the area claimed and treaty rights to govern and manage all of those water resources.

It all started in British Columbia hundreds of years ago. Unlike most of the rest of Canada, B.C. never entered into formal treaties with most of the aboriginal groups living in the province. In recent years, non-treaty aboriginal groups in B.C. became more proactive in asserting aboriginal ownership of land and certain aboriginal rights not associated with ownership of land, such as hunting, fishing and logging rights. Those assertions culminated in a number of Supreme Court of Canada decisions, one of the most important of which was Haida Nation v. British Columbia (Ministry of Forests) in 2004.

In this case, a non-treaty aboriginal group claiming ownership to vast portions of land in northwestern B.C. petitioned the court to set aside long-term logging licences that had been granted to Weyerhaeuser Co. on the ground that the Haida had not been consulted prior to the grant of the licences affecting land they were claiming as their own. The Supreme Court did not set aside the licences but held that since there was a potential for the existence of Haida land ownership or a potential existence of a right to log that was strong, the provincial government had a duty to consult with the Haida before granting the licences to Weyerhaeuser. The rationale for this position was the fact that in B.C., potential rights embedded in non-treaty aboriginal claims are protected by the Constitution Act, 1982. For non-treaty aboriginal groups, those rights must be determined, recognized and respected through negotiation, consultation and possibly an accommodation of the aboriginal interest.

The aboriginal bands comprising the Anishinabek Nation, however, signed treaties with Canada. Nevertheless, they are asserting a claim to the Great Lakes Basin on the argument that under the treaties they did not at any time cede ownership over any waterways. Because the water was not specifically ceded and forms no part of the treaties, the entire area is subject to an aboriginal land claim and a claim of aboriginal rights to certain activities, such as water management and other resource management.

Whether or not the claim is successful may matter less for Ontario than the fact that the province will be locked in the types of legal battles over aboriginal land claims that have affected British Columbia for years. Although there has never been a successful aboriginal land claim in British Columbia arising out of a court decision, these types of fights over land usage have, on occasion, shut down the development of natural resources in the province.

The battle has begun. It will be big and it will be expensive.

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