Battle is on for Great Lakes
By Christine J. Mingie
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
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.