The Interaction between International and Domestic Law, Aqua Nullius, and Water-mediated Claims in Canada

Abstract

Water-mediated claims in both international law and domestic law are often framed around, or adjudicated based on land-centred principles. In Canada, too, such claims tend to be judicially assessed through land-centric concepts. This approach has significant implications for Indigenous law and related claims to water-mediated spaces. It also has consequences for both international law and domestic law, particularly with respect to how aqua nullius and similar Eurocentric concepts are disguised and used in settler-colonial states like Canada. Accordingly, this article urges a critical engagement with Indigenous law and similar cosmologies on water in a manner that foregrounds the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and in re-reading how the UNDRIP is incorporated and implemented in Canada.

Résumé

Les revendications fondées sur l’eau, tant en droit international qu’en droit national, sont souvent formulées ou jugées selon des principes axés sur la terre. Au Canada aussi, ces revendications ont tendance à être évaluées judiciairement à travers des concepts axés sur la terre. Cette approche a des implications importantes pour le droit autochtone et les revendications connexes portant sur l’eau. Elle a également des conséquences pour le droit international et le droit national, en particulier en ce qui concerne la manière dont le principe d’“aqua nullius” et d’autres concepts eurocentriques similaires sont déguisés et utilisés dans les États coloniaux comme le Canada. Par conséquent, cet article encourage un engagement critique envers le droit autochtone et les cosmologies similaires sur l’eau d’une manière qui met en avant la Déclaration des Nations Unies sur les droits des peuples autochtones (DNUDPA), et dans une relecture de la manière dont la DNUDPA est incorporée et mise en œuvre au Canada.

1. Introduction

International law continues to impact domestic law in ways that are not so visible today. Whereas foundational international law principles, including the doctrine of discovery and its vestigial influences, continue to shape the course of domestic law, some dimensions of the doctrine remain under-explored even at this time. They have either been transmuted or subsumed under other aspects of law.¹ It is in this sense that claims to water-mediated spaces often take the form of, or are adjudicated using land-based claims and ideas.² In both international and domestic legal systems, including jurisdictions like Canada, legal claims to water-mediated spaces tend to be judicially assessed through standards that are founded on land-centred title claims.³ In this article, I argue that these claims to water spaces are informed by, facilitated, and inhabited by land-centric concepts. The governing rationality of this land-water matrix is demonstrated through the violence of legal imperialism which pushes non-Western ontologies to the periphery. Notably, legal Eurocentrism negatively impacts Indigenous conceptions of law and associated relational cosmologies.⁴ It is in this sense that, when, ultimately, courts are called upon to adjudicate these matters, they have tended to obscure the distinct character of these water-based claims by turning to land-centred concepts that have continually proven to work injustice, especially against Indigenous peoples.

In this respect, this article proceeds along the lines of what the law relating to water-mediated spaces might look like if one started with water and not land? This question holds significance for both international law and domestic law. At both levels, a redirection away from the lesser-known aqua nullius doctrine and similar colonial concepts that emerged in international law is plainly needed. This development must proceed on the basis of de-centring Eurocentric law and mainstreaming Indigenous legal perspectives.⁵ This de-centring process also calls for an inversion of the orthodox claims of settler-colonial sovereignty and its control over water-mediated mediums as necessary in understanding the differential extension of sovereignty over land and water.⁶ Overall, this approach will impact the interaction across international and comparative law, Indigenous law and governance, and constitutional and property law concepts.

An inverted reading also foregrounds the emerging role of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in domestic law.⁷ This point is observed in the re-reading and interpretation of the relationship between international law and domestic law now that the UNDRIP has been incorporated into Canadian law.⁸ For that reason, I argue, first, for a fundamental review beginning with reimagining water-mediated spaces as occupying a distinct place of juridical primacy, not subordinated by their land-centric counterpart. This analysis can only proceed if we query aqua nullius and its relationship with the doctrine of discovery. Second, I argue that the reliance on land-centred concepts and principles in the interpretation of Indigenous title claims to water-mediated spaces emerge from the vestiges of aqua nullius which began its normative life in international law but is now firmly anchored in domestic legal manifestations. This fluid movement of concepts between international law and domestic law allows for a subtle assimilation of these concepts with little focus on their origin. Thus, I urge a turn to Indigenous legal principles in exploring such concepts for a social and legal reconstruction of our relationship with water.

This article comprises six sections in addition to the introduction and conclusion. I begin with the idea of land and extraterritoriality beyond Europe. This idea was erected and supported by European doctrines that de-territorialized non-European lands. The article considers how such doctrines later reconstituted those lands, this time endowed with a new Eurocentric character. I extend the discussion in the earlier section; this time, focusing on water. The making of land recharacterized water as integrated into land by stripping water of its legal normativity through the operation of aqua nullius. Next, I focus on water as an analytical framework for exploring the ways in which settler-colonial states organized and employed land-centric concepts to dominate water. I build on that analysis by examining aqua nullius in Canadian law through the lens of key judicial decisions that invoked significant aspects of Indigenous jurisprudence. The analysis here demonstrates the limitations of these cases in evolving legal responses to the peripheralization of water in the context of formulating Indigenous title claims. Then, I analyze recent Canadian case law that confronts the centrality of the water-mediated claims and their implications in both international law and domestic law. This analysis feeds into a discussion of new ways of thinking about these water-mediated claims by invoking the UNDRIP, Indigenous practices, and relevant constitutional provisions. The article concludes by rejecting land-based concepts that operate to limit the emancipatory potential of Indigenous law approaches, including the recognition of the uniqueness of water-mediated claims, and invites a turn to the UNDRIP and its transformative capacity to reorient water-mediated claims in Canada.

2. Land and territory beyond Europe

It is now more commonly known that European expansionism was predicated on a set of ideas and techniques that were intended to secure new territory for European states.⁹ As territory was often equated to land, the legal doctrines that were contrived to aid this expansionist philosophy were equally designed around Eurocentric land-based considerations.¹⁰ Equally, since territory was important to European social progress, it became the organizing ambition of Europe’s engagement beyond its borders to acquire more lands, which then translated into an enlarged (European) territory.¹¹ This process ushered in several doctrines including the doctrine of discovery and its foremost feature known as terra nullius. ¹²

During Europe’s empire-building project, this doctrine of discovery was deployed as the justification for dispossessing and annexing lands from non-European peoples.¹³ The European state found an ally in this imperial mission as the doctrine was also espoused by the church as a religious and legal technology for promoting Christianity beyond Europe. Notably, it was embraced by Portugal and Spain to advance their imperial and expansionist mission in places like Africa and the Americas.¹⁴ At its core, which was a blend of both legal and religious precepts, the doctrine of discovery posits that non-Europeans, who were also non-Christians, were inferior to their European counterparts.¹⁵

This religio-legal othering dispossessed non-European peoples of their lands based on this artificial distinction of superior (European) and inferior (non-European) peoples, including in present-day Canada.¹⁶ It derived its strength from the religious and legal construction of European dominance over non-European polities as it was supported by papal edicts. Its overt manifestation was the exertion of Eurocentric control over territories, law, and cultures of non-European and non-Christian peoples and their societies.¹⁷ These non-European peoples and their ways of life were considered open to discovery by Europe since these non-European peoples could hardly constitute human society in the European characterization.¹⁸ Thus, they could only then derive their human essence from the pastoral care of God (through the pope) and Europe’s Christians, who were God’s earthly representatives.¹⁹

Importantly, the doctrine of discovery was not only applicable to land. It extended to water, water-mediated spaces, and related uses of water too. However, this aspect of the doctrine’s control over water has been under-explored since water’s essence was subsumed under land. In a recent review of the doctrine, the Australian legal scholar Erin O’Donnell confirms this point as she notes that “the ‘fiction of first discovery’ that dispossessed Indigenous Peoples of their lands also took their waters.”²⁰ Similarly, historians like Ivana Elbl have also argued that the papal edicts that set this doctrine of discovery in motion “carefully spelled out the ecclesiastical prohibitions against any military, commercial, and fishing expeditions” that were unauthorized by the (Catholic) Church and its representatives.²¹ Drawing on Elbl’s point, the reference to “fishing” in this papal edict highlights European imperial ambitions as not only being restricted to land but also encompassing water domains.

Until recently, this water dimension of the doctrine of discovery had not received much attention at either international law or domestic law. Perhaps the extent of imperial sovereignty in water matters was casualized as though the doctrine of discovery, seen primarily through its terra nullius plank, was generally applicable to both land and water alike. In this respect, Europe’s imperial (and colonial) interests tended to focus on land, and water — either as the sea, lakes, rivers, or streams — only served as a thoroughfare for ferrying Europeans to those new lands.²² While this characterization of water, then, seems to be a logical consequence of these European imperial ambitions, it is important to think about water as a distinct space that evokes its own unique spatiality and legality, especially in the way in which that interaction impacts Indigeneity.²³ Here, O’Donnell, once more points out that, “[l]ike land, water is central to Indigenous identity, with the relationship between people and place reflected in their laws.”²⁴

At this time, it is important to think about the significance of the doctrine of discovery in the making of both international and domestic law. Here, the papal bull Romanus Pontifex of 1454 endorsed this doctrine as it “allowed the European Catholic nations to expand their dominion over ‘discovered’ land. Possession of non-Christian lands would be justified along with the enslavement of native, non-Christian ‘pagans’ in Africa and the ‘New’ World.”²⁵ However, it was another papal bull, the Inter Caetera of 1493, which spurred European expansionism.²⁶ The Inter Caetera practically divided the world into two, with Portugal and Spain exercising control over each half.²⁷ This process of dividing the world between these Iberian states provoked a response from other European states like England and The Netherlands since they too were equally interested in owning and colonizing non-European territories.²⁸ It was around this time that the earlier papal bull of 1454 assumed renewed significance. Its main feature was the endowment of European states with control over these new territories, which were to be aligned with Christo-centric pastoral care of non-European peoples.²⁹ The resulting effect was that this process of subjugation also carried with it the introduction of the domestic (public) law of Europe in these new jurisdictions.³⁰ In the ensuing imperial transformation, land and water were not spared from these violent legal intrusions as the doctrine of discovery had a profound influence at the intersection of the imperial encounter. It also began to carve a new space for the introduction of international law as it arose in the context of the ongoing European expansionist project into these non-European polities that had now been brought under European control.³¹ With this introduction came the domestication of aspects of international law in the internal affairs of these new territories.

It is in this broader context of imperial activities that terra nullius emerges as a derivative of the doctrine of discovery. Here, territory was declared terra nullius “either because no one has ever appropriated it — as in the case of newly found land — or because, though once appropriated, it has subsequently been abandoned.”³² This description of land (or a better description is “territory”) had its roots in Roman law, and it had now passed in to common usage in the public law of Europe.³³ In this respect, terra nullius as a civilizing technology proceeded on the grounds that non-European lands could be conquered and brought under the dominion of European (Christian) states as if these lands never existed or were never previously settled by other peoples. The conquest of North America and the colonization of Australia, New Zealand, and Africa by European states, including England, Portugal, and Spain, were thus established on the basis of terra nullius. ³⁴ For settler-colonial states like Canada, the lasting effect of terra nullius is that Indigenous societies were absorbed into the new creation of Canada with little chance to assert their independence or sovereign character without risking resistance from the Canadian state.³⁵

While terra nullius has been challenged in both international and domestic law, its influence remains.³⁶ On the international scene, especially in the Western Sahara advisory opinion, the International Court of Justice (ICJ) rejected the view that Western Sahara was terra nullius at the time Spain occupied that territory.³⁷ Interestingly, the ICJ denied both Morocco and Mauritania the legal basis to lay claim to the contested territory, partly based on the nomadic character of the peoples living in Western Sahara in the contested territory. Admittedly, the incidence of nomadic movements suggests that people are not permanently fixed to a specific geography. However, the factual existence of nomadic organization in and of itself cannot negate claims of historical occupation or claims to a particular territory since occupation in fact does not mean every inch of a territory is occupied by people. Quite evidently, the reason both claims by both parties — Morocco and Mauritania — failed was because of a mooring of the ICJ’s decision in territorial control relative to terra nullius. ³⁸

In the domestic context, the Supreme Court of Canada considered a similar situation in a case relating to the ability of Aboriginal peoples to fish commercially.³⁹ In this case, while the Supreme Court held that Aboriginal peoples could fish salmon as part of their historical rights, the court concluded that Aboriginal peoples did not possess historical Aboriginal rights to engage in the sale of salmon as a commercial activity. In a sense, this decision by the Supreme Court had a way of terminating or denying the existence of Aboriginal rights or stilling these rights in time as products of a past era that are incapable of evolution.⁴⁰ What is even more relevant here is the court’s brief engagement with the question of nomadism. Chief Justice Antonio Lamer noted that, whether a people were nomadic or not, they still possessed “some kind of social and political structure” and had “a distinctive culture and their own practices, traditions and customs.”⁴¹ He also stated, in a rather tangential reference to international law principles, that the European settlement of Indigenous lands in present-day Canada could only be justified at international law through a variety of reasons, including the controversial principle of “acquisition of territory that was previously unoccupied or is not recognised as belonging to another political entity.”⁴² This statement by Lamer CJ could be likened to an invocation of terra nullius to justify the settlement of Indigenous lands even though that was not expressly noted in his statement. However, in her dissent, Justice Beverley McLachlin (as she then was) raised concerns over this implied reference to terra nullius. As she pointed out, “[t]he assertion of British sovereignty was thus expressly recognised as not depriving the [A]boriginal people of Canada of their pre-existing rights; [and that] the maxim of terra nullius was not to govern here.”⁴³

So, just as was decided in the Western Sahara advisory opinion, the implications of terra nullius as raised in the Van der Peet case go beyond the seemingly simple exercise of sovereign control over land. The doctrine had the potential to curtail ownership or legal title and extinguish any bundle of rights that were integral to that title. As Jennifer Reid rightly acknowledged, “[b]y this principle, land could be regarded as empty, and [the] underlying title could be claimed, if non-Europeans were failing to make use of it in accordance with European expectations or if they had migratory subsistence patterns.”⁴⁴ What we learn from Reid’s assertion is that the character of Indigenous usage then had to fit into Eurocentric classifications or else Indigenous peoples risked losing their lands, which was often the case.

The invocation of terra nullius as observed in R. v Van der Peet also demonstrates that the doctrine impacts more than just land.⁴⁵ It travels beyond its immediate land-centred manifestation as it touches on access to water and water resources, including fish, which are equally affected by this theory that frequently invalidates Indigenous title. Evidently, human interactions with water and related uses do not necessarily fit land-based modalities. However, by extending land-centric concepts, including terra nullius, to water, the encounter between international law and domestic law assumes a new form. Here, the doctrine of discovery, which has an international character, and its multi-tentacled expressions including terra nullius, quietly extended into the domestic terrain. Using the example of Australia once more, while terra nullius helped to extend British sovereignty over Australia, “the doctrine has a common law counterpart in the ‘desert and uncultivated’ doctrine.”⁴⁶ This ‘desert and uncultivated’ doctrine, as a variant of the doctrine of discovery, allows the imposition of common law in non-English domains as if no law pre-existed the colonial encounter in these societies. It seems then that the transmission of Eurocentric ideas and legal precepts into new lands could simply turn those lands into European territory at will.

What we learn from this explanation is that the doctrine of discovery manifests an evolving character by seeking out places where it can lay claim to lands that are acquiescent to its philosophy. Viewed in this way, these multiple doctrines are not simply reminders of a time past. They are still present and very much alive and integral to contemporary notions of legal normativity, including international law as it pertains to Indigenous peoples and their relationship with settler-colonial states like Canada.⁴⁷ As Gordon Christie cautions, “[t]hat the Crown has control over international law must also be imagined, but only in the sense that the Crown is entirely at its leisure to decide what aspects of international law it might bring into the domestic scene, which reflects how the state and its courts overwhelmingly think of international law.”⁴⁸ This point explains why settler-colonial states are hesitant to relinquish their hold over Indigenous law or are unwilling to acknowledge and permit Indigenous sovereignty to actively thrive by cherry-picking from the UNDRIP since those settler-colonial states are themselves products of these doctrines.⁴⁹

In the end, the doctrine of discovery’s international law pedigree quietly retreated, yet, at the same time, it took upon itself a broader and equally pervasive domestic character. It is in this respect that European imperial dominance masked as sovereignty extended from land to water, but with land subordinating water.⁵⁰ To illustrate in the context of the seaward extension of sovereignty, the popular maxim is “the land dominates the sea.”⁵¹ In this regard, David Wilson emphasizes that the “imposition of colonial territorial sovereignty was directly linked with the gradual ascendency of colonial jurisdiction over marine space and Indigenous bodies at sea.”⁵² Quite remarkably, when the doctrine of discovery is scrutinized as a cornerstone of the European imperial project, and terra nullius is cited as its foremost feature, there is relatively no corresponding commitment to querying the aqua nullius dimension of the doctrine with similar intensity. With time, aqua nullius also assumed a significant role in Indigenous-settler relations while avoiding the spotlight.

3. From terra nullius to aqua nullius

As was observed in the preceding section, terra nullius was summoned to dispossess Indigenous peoples of their lands, culture, and law. While terra nullius was central to the making of international law, it had far-reaching domestic implications too.⁵³ Here, we see that, even though courts in places like Canada (and other settler-colonial jurisdictions like Australia) have now, at least theoretically, renounced terra nullius, its repudiation could never be complete at both international and domestic law since, without its existence, colonization is strategically rendered indefensible.⁵⁴ This point explains why, in jurisdictions like Canada, terra nullius has only been repurposed to become more acceptable and nuanced in the context of Indigenous-settler relations. This point can also be seen in the way in which the Canadian state justifies its claim to sovereignty either as emanating from agreement — that is, through treaties made between the Crown and Indigenous peoples despite the evident power asymmetry between the two sides — or simply through the loss of Indigenous title occasioned by the exercise of Crown authority over unceded lands.⁵⁵ Either way, the superimposition of the authority of the Crown over such lands rested on a theoretical vacuum that is supported by terra nullius.

Yet, while terra nullius is standard knowledge, not very much is known about its aqua nullius counterpart. As a variant of the doctrine of discovery, aqua nullius also proceeds on the basis that water, as a special category of spatiality is equally open to the assertions of claims of no person’s jurisdiction.⁵⁶ Like terra nullius, aqua nullius also has its roots firmly planted in international law.⁵⁷ Notably, as the Grotian doctrine of the free seas emerged in the sixteenth century and gained a foothold in European law and politics, the oceans were constructed as open space (or more like a highway) for access and use by European states for their imperial mission.⁵⁸ Here, the right to navigate the oceans was automatically invoked by European maritime powers and justified within the broader religious and legal authority of European states to discipline both the seas and the adjacent littoral non-European (Indigenous) societies in places like Africa, the Americas, Asia, and Australia.⁵⁹

The construction of the oceans as thoroughfares turned it into “perpetual res nullius” or no one’s property.⁶⁰ Significantly, following the imperial project and Europe’s expansionism, water (especially the oceans) was seen only as a conduit for transporting Europeans to these new lands. Where European states met with opposition from Indigenous peoples, the European imperialists maintained a political, religious, and even legal obligation to resist these Indigenous peoples. To these imperialists, like the land, the ocean was “nobody’s water,” and Indigenous peoples could not prevent Europeans from exercising their God-given authority over the oceans that ferried them (as colonizers) to these new lands.⁶¹ As Endalew Lijalem Enyew remarks in his critique of aqua nullius, “the freedom of the sea was functionally equivalent to the doctrine of terra nullius that enabled European [s]tates to freely occupy lands inhabited by non-European Indigenous peoples.”⁶²

Aqua nullius and its implementation in the domestic setting thus gave rise to new modalities for the exercise of legal authority. First, terra nullius and aqua nullius united within the context of the doctrine of discovery to break up the sea-land continuity in Indigenous cosmologies which conceptualized land and water as complementary realms.⁶³ These non-European societies had “wide-ranging practical, spiritual, environmental, cultural, and economic interests in, relationships with, obligations towards, and dependencies on water resources,” which were disrupted by these doctrines.⁶⁴ However, in the second instance, aqua nullius galvanized “water colonialism” in settler-colonial states and ruptured this land-water continuum by creating separate categories of control for both domains.⁶⁵ In this way, aqua nullius rushed through European authority in colonial societies and, along with that process, pushed through devastating consequences for water’s legal normativity.

In this respect, the imperial and colonial interruption in Indigenous social and legal ontologies treated both land and water as functionally empty spaces for the introduction of European law. Most notably, aqua nullius and its corollary of water colonialism transformed Indigenous water-informed legal relationships from relationality to unfettered resource access and unrestricted use. By turning water into an empty space without its own governing rationality, European colonizers imported and further extended land-based concepts into water-mediated spaces. These changes fundamentally obliterated prevailing pre-colonial Indigenous world views on water.⁶⁶ In the end, aqua nullius radically modified Indigenous relations with water, disrupting Indigenous peoples-water interactions while introducing new and unfamiliar legal relations with water, including property rights erected upon this legal vacuum.⁶⁷ By draining water of its legal normativity, beginning with the claims that it was owned by no person, aqua nullius as an international law principle rendered water normatively empty and in need of a civilizer and, along with this process, introduced a new (Eurocentric) law to fill that vacuum.

4. Water as method

If water was never absent of its governing logic, which was rooted in a complex relationship with Indigenous peoples, how can Indigenous peoples and their laws reclaim this connection and restore water and its agency? The pivot of the ensuing analysis is that water can found a renewed framework for mediating Aboriginal title claims. This transformed framework has useful theoretical and practical application in how we understand water as uniquely positioned to provide both context and content for analyzing these claims.

On this subject, I draw on Renisa Mawani’s pioneering work Across Oceans of Law: The Komagata Maru and Jurisdiction in the Time of Empire, where she advances the methodological value of water (using the example of the oceans) in rewriting historical narratives, including colonial repression in the context of ocean-mediated migration.⁶⁸ In her oceans-as-method framework, Mawani makes two central arguments that, “[f]irst, by drawing attention to the peripatetic movements of vessels, laws, and people, oceans offer novel techniques for writing colonial legal history. Second, as sites of ongoing and ceaseless change, the sea emphasises motion as central to imperial and colonial politics.”⁶⁹

Mawani problematizes the oceans to assume a more determinate role in the movement of peoples from one place to the other and gives the reasons for such migration as facilitating ocean travel or the forces that oppose such translocation of peoples across jurisdictions. Viewed in this way, the ocean (or water generally) in Mawani’s analysis is not simply treated as a thoroughfare but also as an actor shaping the ensuing history and its impacts.⁷⁰ This explanation is relevant in particularizing European settler-colonial history with law and water as sites of contestation. This process of elaboration must engage with this methodological value of water. Drawing on this wider application of Mawani’s construct, the description of water in the context of aqua nullius thus operates not only as a legal metaphor but also as a legal technology for displacing Indigenous presence and control in much the same way as was demonstrated through terra nullius.

The oceans-as-method framework brings into focus an analytical posture that showcases an alternative construction of the normative place of water. It highlights the ocean as a site of anti-colonial struggle, one that will be important to the recovery and revitalization of Indigenous law.⁷¹ In this respect, if aqua nullius is to be confronted and uprooted, it must be done within a wider effort that is aimed at de-emphasizing and de-centring Eurocentric law. This expansive framing of “water as method” (based on Mawani’s “oceans as method”) and as a site of anti-colonial struggle is important to this process for a variety of reasons. For example, the anti-resistance framework is necessary as settler-colonial states could potentially wave away generations of Indigenous ontologies, laws, and relations in regard to water-mediated spaces as simply vacant based on aqua nullius. As other legal scholars have cautioned in their studies on Norway, aqua nullius was deployed in a manner that allowed the Norwegian state to dispossess the Sápmi Indigenous peoples of control over what is now known as the Norwegian fjords by ignoring “the pre-existing populations in these areas and their legal traditions.”⁷² Thus, these renewed views on water cosmologies provide a fluid process for reimagining the place and role of water in mediating Indigenous-settler relations.

In this respect, the success of efforts aimed at dislodging aqua nullius must be built around resisting prevailing Eurocentric themes. By thinking of water as a site of struggle, liberation, and law-making, ongoing efforts by Indigenous peoples will continue to receive much-needed impetus to challenge and de-centre Western legal precepts that have long served as technologies of dispossession. Reassuringly, this water-as-method approach has seen new scholarly and practical uptake. For instance, recent scholarship notes that the water-as-method approach allows the flourishing of new ways of engaging with ocean histories.

In practical terms, the engagement with Indigenous peoples and their water cosmologies is important for rethinking water relations.⁷³ This interest is observed in how Western canons of law that were formulated on the basis of aqua nullius are now being resisted due to their Eurocentric pedigree.⁷⁴ Here again, it is important to turn to Mawani’s insightful reflection which is that, “[r]ather than drawing a fixed line in the soil as the basis of a modern European legal order, oceans as method emphasises the sea as a polycentric, polyphonous, and variegated space marked by continual movements, circulating legalities, and by competing jurisdictional claims.”⁷⁵ This description of water emphasizes its legal pluralities and the multiple relationships that it has with Indigenous peoples.⁷⁶ Drawing on this prodigious analytical framework, my use of water as method is wider and extends beyond its initial oceans use in Mawani’s work to include the marine foreshore, lakes, rivers, streams, and even sources of underground water. Therefore, water (broadly replacing Mawani’s reference to oceans) provides a more comprehensive canvas for Indigenous peoples to revive their cosmologies and advance new legal claims in water-mediated spaces.

Water as method also presents a valuable opportunity for an antithesis to the colonial domination that led to the dispossession of Indigenous peoples of their water. It also helps in how water, understood in the secondary sense as legal method, challenges the colonial infrastructure of law, including aqua nullius. For example, as Surabhi Ranganathan argues, while the ocean has been studied in international law more generally, its history is not frequently offered as a counterpoint to the prevailing colonial legality of foundational international and domestic law doctrines.⁷⁷ This effort in challenging aqua nullius, then, involves a re-imagination of water-mediated spaces as sites of history, contestation, and law-making. For Indigenous peoples, this process requires a transformation in the juridical characterization of access and use of water-mediated spaces that recognize the significance of “cultural imagination” in endowing water with its own agency and legal normativity.⁷⁸

Admittedly, this re-imagining process engages with a legal consciousness that highlights the role of cultural invigoration and renewed understandings of the social reconstruction of water.⁷⁹ Here, Indigenous ontologies are understood as respecting water as having its own agency yet being integral to human society. For instance, certain Anishinaabe world views on water treat it as a life giver and that both humans and water owe to each other a sacred relationship of reciprocity and responsibility of care.⁸⁰ They also demonstrate the historical connections between society and water that are marked by spiritual and ancestral practices that represent legal relations between society and water. Nonetheless, these are not merely historical considerations. They are ongoing practices that give rise to legal duties that still have contemporary relevance. Thus, the restoration of water ontologies and traditions must be embraced and harnessed to displace Eurocentric understandings of water as simply a resource to be exploited since Indigenous practices and customs must be viewed as “dynamic legal orders, rooted in those traditions, while adapting to contemporary circumstances to be governed and used in accordance with law.”⁸¹

This concept of water as method envisioned through the idea of social reconstruction challenges Western norms on how we engage with water on its own terms and as its own normative phenomenon. It also challenges human relations with water as a medium and a site of knowledge and law-making. Andrew Ambers uses the powerful example of the laws of the ‘Namgis, Heiltsuk, and W̱SÁNEĆ peoples to explain this point and prove how relational understandings between water and Indigenous peoples can clarify the project of legal personhood in a manner that assures the vitality of Indigenous legal orders in Canadian society.⁸² In this respect, Corey McKibbin also argues that, in Indigenous world views, water is much more than just a fluid medium for transport, consumption or other human uses, but that it holds a “spiritual” or even “medicinal” value for Indigenous peoples.⁸³

Accordingly, it is the defective understanding of the interconnectedness between water and Indigenous peoples and their world views that leads courts to undermine, poorly interpret, and eventually fail to uphold or enforce the Indigenous legal values that underpin the “reciprocal relatedness of water peoples and water places.”⁸⁴ This relationship between water and Indigenous peoples then is misrepresented or misunderstood as having no place, or, in some cases, occupying a much diminished role, in Eurocentric law.⁸⁵ This issue demonstrates itself in the manner in which Indigenous peoples contest development projects that affect water-mediated spaces based on “the spirituality of water.”⁸⁶ But as Natasha Bakht and Lynda Collins have noted, legal suits involving Indigenous claims that “have relied primarily or solely on spiritual rights” have seldom succeeded in Canadian courts.⁸⁷ This is not an isolated point but a long-standing observation as other legal scholars in Canada have also discussed how Indigenous peoples have struggled to demonstrate their spiritual connections to land and water in the context of environmental reviews in Canada, often without success.⁸⁸

However, a deeper analysis of this point demonstrates how courts tend to obstruct relational understandings and interpretations of Indigenous cosmologies, particularly through a narrow construction of Indigenous rights and related claims.⁸⁹ John Borrows points us in that direction by arguing that Canadian courts must not look at Indigenous rights as calcified and stilled in time since “working with Indigenous legal traditions on their own terms involves traditional, modern, and postmodern sensibilities.”⁹⁰ In the water context, legal scholars like Aimée Craft advances this evolving agenda through her research with Anishinaabe peoples and their relationships with water and how that interaction continues to be relevant to law, even today.⁹¹ The effective interpretation and application of Indigenous cosmologies then must be adapted to fit the contemporary issues that invite their consideration. Thus, it is no surprise that Bakht and Collins note that “[t]his lack of understanding has too often led the legislative, administrative, and judicial branches of the Canadian state to fail to protect Indigenous spiritual rights.”⁹²

This view invites us to think more critically by drawing upon international law in the context of the UNDRIP to enrich the current jurisprudence that has failed significantly to advance Indigenous world views. It is in this context that the idea of water as method becomes ever important as it requires a fundamental judicial awareness that the modes of vindicating Indigenous claims require a new take on existing jurisprudence. This idea also challenges the unsupportable foundations of colonial sovereignty over water that as yet have hardly seen any successful resistance.⁹³ For claims that derive their basis from a water-society nexus, land-based prescriptions might then be wholly incapable of accommodating or vindicating such claims.⁹⁴ Therefore, as a matter of necessity, the legal foundations of jurisdiction and sovereign claims over water-mediated spaces as seen through colonial legal instrumentality must be reformed to redeem the suppressed Indigenous character of these claims.⁹⁵

One way in which this juridical reorganization is possible will be through the lens of water as method, which confronts this strain of injustice. This approach invites a reappraisal of some of the canons of law that have held legal imagination captive for so long, including aqua nullius. As a complement to terra nullius, aqua nullius has played a significant role in changing the character and history of water across colonized jurisdictions. Whether it was in Africa, the Americas, and places like Australia and New Zealand, even the names of rivers and lakes were changed to assume the character of the colonizing power. This naming process was integral to the imposition of a Eurocentric vision of law and a corollary revision of the histories of these water-mediated spaces.⁹⁶ In this respect, water as method advances the process and project to re-name Indigenous landmarks and watermarks not only as a necessary correction of the historical revisionism that was inspired by international law developments traced to Europe’s imperial project but also as an effort to re-claim the legal essence of Indigenous lands and water.⁹⁷

Beyond this process of re-naming and re-characterization of water wrought by aqua nullius, these profound changes also took a foothold in the legal regulation of water-mediated spaces. As the Canadian legal scholar Douglas Harris has argued, as with sovereign control over land, the imperial inroads into water, including through fishing regulation, only cemented the extension of extraterritoriality and the accumulation of natural resources that were central to the logic of Western doctrines of property law.⁹⁸ Fishing was one such means and method of understanding the complex infrastructure of the colonial and imperial posturing of law relative to water. It is the reason in settler-colonial states like Canada, that, while fishing was recognized as being integral to the lives of Indigenous peoples, the Canadian state labelled subsistence fishing as “an activity of the mean and destitute” and consequently succeeded in elevating commercial fishing — largely reserved for European settlers — as a worthy enterprise and much superior to subsistence fishing undertaken by Indigenous peoples.⁹⁹ Even when, much later, the Supreme Court of Canada held in cases like R. v Marshall that the Mi’kmaq people were not confined to bare subsistence but could fish for “moderate livelihood,” this judicial pronouncement did not significantly reorient the Canadian state’s exercise of sovereignty over these water-mediated spaces, as we see in the later case of Van der Peet. ¹⁰⁰

On this subject, it is important to re-examine how aqua nullius effectively passed from international law into domestic law. In this respect, it is important to note that, due to its impact on Indigenous peoples, interests, and claims to water, aqua nullius is now receiving renewed critical interests from legal scholars and lawyers alike. For example, in Australia, aqua nullius is the subject of extensive legal inquiry as parallels are being drawn between its effects and the influences of the adjacent equivalent — terra nullius — in reconstituting relations between Indigenous peoples and water.¹⁰¹ In the decision of the High Court of Australia in Mabo v State of Queensland (No. 2), it was held that the doctrine of terra nullius did not operate to exclude Indigenous title to land.¹⁰² Thus, this Australian interest in querying aqua nullius is inspired by the Mabo decision and how it can be applied to water.

Today, Indigenous claims to water are now becoming part of the legal corpus in jurisdictions like Australia. New arguments have emerged that it is about time similar reforms observed in the case of terra nullius are undertaken in the realm of water-mediated claims. The argument is that this process begins with the express rejection of aqua nullius just as terra nullius was repudiated in the Mabo case.¹⁰³ As another Australian Indigenous law scholar argues, “the concept of aqua nullius, that is, ‘water that belongs to no other’, raises important questions that align equally with discourse on Indigenous land rights and are generally ignored in the broader discussion on property rights in water.”¹⁰⁴ As other commentators too have put it, while the Australian courts have struck down terra nullius, “aqua nullius remains.”¹⁰⁵ So, just like Australia and other settler-colonial jurisdictions, including Canada, where the state and its law dominate the legal sphere, the water-as-method framework becomes even more relevant in remedying this long-standing injustice for peoples and water.

5. Canada between terra nullius and aqua nullius

At this point, it is impossible to envisage settler colonialism without aqua nullius. This point accounts for Canada’s own history with aqua nullius. ¹⁰⁶ But before turning my focus to how Canada has failed to advance water-mediated concerns, I examine the treatment of land-based claims and how they impact water. To begin, the Supreme Court of Canada has had the opportunity to pronounce on land-based claims in some groundbreaking cases. For example, it held in Delgamuukw v British Columbia that the province of British Columbia could not extinguish the Aboriginal title of the Gitxsan and Wet’suwet’en peoples over the land in dispute.¹⁰⁷ This decision validated Indigenous claims as predating the colonial encounter in Canada. Quite importantly, the court noted in Delgamuukw that proof of Aboriginal title includes the right to exclusive use and occupation of land, and, where proof is required to establish pre-colonial occupation, “an [A]boriginal community may provide evidence of present occupation as proof of pre-sovereignty occupation in support of a claim to Aboriginal title.”¹⁰⁸ The court further noted that it is “pre-contact practices, customs and traditions of [A]boriginal peoples which are recognised and affirmed as [A]boriginal rights by s. 35(1)” of the Constitution Act, 1982. ¹⁰⁹ Thus, this case built upon the earlier decision in Calder by fundamentally constraining the status and domestic applicability of the international law doctrine of discovery through its recognition of pre-existing Aboriginal title.¹¹⁰

Delgamuukw confirmed the protections afforded to Aboriginal rights under section 35(1) of the Constitution Act, 1982. ¹¹¹ Importantly, it highlights the pre-existence of Indigenous claims to land long before the colonization of present-day Canada. This statement was affirmed in a later case, Tsilhqot’in Nation v British Columbia, where the Supreme Court of Canada held that terra nullius was inapplicable in Canadian jurisprudence.¹¹² Despite this seeming affirmation of Delgamuukw, the Supreme Court’s decision in Tsilhqot’in Nation appears contradictory as it also confirmed the Crown’s “underlying title” to Aboriginal lands by re-establishing such title claims on the privilege of a “legal vacuum,” which claims its heritage through the international law doctrine of discovery.¹¹³ Nonetheless, the effect of the combined reading of Delgamuukw and Tsilhqot’in Nation not only protects Indigenous land claims as predating Crown sovereignty but also supports those claims as founded on Indigenous world views and legal principles derived from Indigenous laws, customs, and practices.

But while these land-mediated claims have helped to establish and even confirm Indigenous jurisdiction over land, the same cannot be said about water-mediated claims. In settler-colonial jurisdictions like Canada, Indigenous water-mediated claims are judicially assessed based on land-centric legal standards.¹¹⁴ The challenge with this approach has been that the resolution of such claims are often restricted to the application of land-based principles that do not necessarily align with the issues at stake in water-related matters, neither do they reflect relevant Indigenous cosmologies. This issue arises from the separation of water and land and a conflation of applicable legal norms. While water was conceptually excised from land, the paradoxical juridical embodiment of water as an extension of land in international law or much later in domestic law then becomes a product of the Eurocentric ideologies of water being declared as legally vacant. Water, which was conceptualized as separate yet still attached to the land it abuts or was contained in, meant that it was not to be treated juridically as a medium with its unique legal normativity other than what was derived from its land-centric character.

This conceptual separation of land and water with land dominating water was a legal technology deployed at both international and domestic law to galvanize Europe’s imperial ambitions. The outcome was that the ruptured effects of the separation displaced Indigenous relationships with water.¹¹⁵ To reiterate, the test as laid down in Delgamuukw was that,

[i]n order to make out a claim for [A]boriginal title, the [A]boriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.¹¹⁶

Regrettably, these elements, including the test of continuous occupation are simply not aligned with Indigenous ways of living and knowing water.¹¹⁷ On this subject, Paula Quig notes that the Aboriginal title test formulated in Delgamuukw was not specifically designed to deal with water-mediated spaces.¹¹⁸ Quig’s apt observation is still relevant today since the Delgamuukw test was designed for Indigenous dry land title ascertainment and not for water-mediated claims. It is thus no surprise that, even today, Canadian courts have tended to apply this land-centred framework to water-mediated claims.

There are both practical and legal questions posed by the superimposition of a dry land approach in water-mediated spaces. First, it is difficult to establish exclusive occupation over water in the same way that we do for land. Very few Indigenous communities permanently build their homes on, and live on water. However, there is some guidance here since evidence of occupation may be demonstrated through the construction of dwelling homes, cultivation, and enclosure of fields in the foreshore and regular fishing and hunting grounds in and around these water spaces. The ascertainment of these signs of occupation may satisfy the requirement of “traditional laws” and “traditional customs” of Indigenous peoples as affirmed in Van der Peet as being integral to “pre-existing culture and customs of [A]boriginal peoples.”¹¹⁹ Nonetheless, this suggestion that evidence of exclusive occupation is tied to pre-existing culture is inconsistent with the constant evolving character of Indigenous engagements with either land or water.

This position is supported through the observation of a particular Indigenous people’s size, culture, and material resources. However, another challenge is that, in Delgamuukw, Lamer CJ also contemplated that proof of Aboriginal title in Canada may require reconciling both Aboriginal and common law positions.¹²⁰ The point advanced by Lamer CJ suggests the need to draw upon ideas from both Indigenous law, which is the Aboriginal perspective, and the common law perspective. This proposition poses further problems since the courts could potentially deny the existence of Indigenous occupation prior to European colonization arising out of this undertaking to reconcile the two positions that Lamer CJ raised in his analysis. Where such a situation arises, the court’s decision could lead to a modification or suppression of Indigenous claims to fit within the expectations of the settler-colonial state.

There are also issues with proof of continuity, a requirement of the Aboriginal title test in Delgamuukw. First, the precise role of continuity is less clear when there is no reliance on present occupation of the contested place. This is obviously a much bigger problem for water-mediated spaces than land. Borrows reflected on this question of continuity of occupation in Tsilhqot’in Nation and notes that the title claim in that case was upheld on grounds that “Tsilhqot’in law and social organisation was in existence when the Crown asserted sovereignty and that there has been ‘continuity’ in this organisation down to the present day.”¹²¹ Evidently, Borrows’s argument follows his persistent call that Aboriginal rights are not preserved in the past as “Indigenous legal traditions exist to address current and future needs.”¹²²

Second, while proof of continuity of land-based claims may be easily ascertainable because of the geographical or physical contiguity of land, continuity of occupation in water-mediated spaces require a differently formulated test that draws upon Indigenous law conceptions in regard to water.¹²³ An attempt to formulate this test must consider the influence of Western law on Indigenous practices and customs. This difference in outlook between Western and Indigenous perspectives on water has been raised in other contexts in Canada, and this distinction is underlined by a spiritual and ancestral connection between Indigenous peoples and water.¹²⁴ Again, the ascertainment of these water-informed Indigenous conceptions requires a turning to water-based ontologies that confirm this unique notion of continuity.¹²⁵

Third, a difficulty also arises in dealing with common law public rights and rights of states at international law, including the right of innocent passage.¹²⁶ For example, where an Indigenous title claim to the foreshore (be it lake or the ocean) is upheld as pre-existing Crown sovereignty, such a claim can potentially impact Canada’s international territorial jurisdiction and related rights. Here, any approach taken by the Canadian courts to interpret such claims will involve, as a matter of necessity, a construction of section 35(1) of the Constitution Act, 1982, with a view to balancing Indigenous claims to sovereignty and the sovereignty of the Canadian settler-colonial state to secure its national frontiers while respecting international law.¹²⁷ An analysis in this respect will equally invoke the political and legal requirements of reconciliation. A water-mediated claim here will involve a turning away from the strict language of land-based claims to a more expansive view of section 35(1) of the Constitution Act, 1982, as encompassing more than land-based concerns.¹²⁸ The intended result from this balancing act contemplates a vindication of Indigenous claims and the upholding of the Crown’s international obligations to maintain its national frontiers. This tension is not so manifest in a land-centric test as much as it is within a fluid water-mediated space since the Delmaguukw test was not designed for water-mediated claims.¹²⁹

The analysis of Delgamuukw and Tsilhqot’in Nation as well as similar decisions highlight the hurdles Indigenous peoples would have to navigate to prove water-based claims. To be more precise, these cases do not exactly offer a clear course of action for how Indigenous peoples could prove title claims in Canada in water-mediated spaces, which includes proof of the extent of the sufficiency of their occupation, continuity of occupation, and exclusivity of occupation. The challenge that this situation presents is the extension of what started as colonial (state) sovereignty to water-mediated spaces in Canada through aqua nullius. Still, even in the post-colonial experience, state sovereignty operates to exclude Indigenous peoples from exercising control over their seas, lakes, rivers, and marine foreshores and, along with that, an inability to apply Indigenous legal cosmologies to support claims to these water-mediated spaces.¹³⁰

6. Navigating jurisdictional claims over water

Nearly two decades after Quig’s foundational text that explored this subject, Canadian courts are beginning to explore the opportunity to pronounce on water-mediated claims. A number of recent cases are shining legal light on this less-explored foundation for Indigenous water claims. But then these cases only go so far. For instance, in the recent case of Chippewas of Saugeen First Nation et al. v Attorney General of Canada et al, an Ontario court simply held that proof of Aboriginal title to submerged lands is the same as the test in Tsilhqot’in Nation. ¹³¹ Even though the court concluded that the plaintiffs had failed to prove their claim to Aboriginal title to this water-mediated space, the trial judge noted that “[m]y conclusion relates to the specific area claimed by SON [Saugeen Ojibway Nation — that is, the plaintiffs], in the Great Lakes. The outcome could be different for other submerged land, such as inland lakes, rivers, and streams.”¹³² This statement by the court highlights the importance of thinking about how to approach water spaces differently.

While not readily obvious, the Chippewas of Saugeen case raises some international law questions. Notably, if the arguments of the plaintiffs were upheld and Aboriginal title declared in their favour, the decision could impact Canada’s international boundary with the United States and, along with that, “activities normally permitted by the public right of navigation” in the Great Lakes region.¹³³ However, in this case, the actual claims of the plaintiffs seemed not to disturb the Canadian-United States international boundary passing through the Great Lakes region. Nonetheless, this dimension to the case revives Quig’s two decades-old concern about the implications of Aboriginal title claims to water-mediated spaces and how that might impact the international right of innocent passage to which the court alluded.¹³⁴ With the potential threat to balancing Indigenous sovereignty against assertions of (colonial) state sovereignty and its wider international law implications, this case highlights the potential of the courts to discipline Indigenous world views and force them to fit the Eurocentric expectations of international relations disguised as the exercise of Canada’s state sovereignty.

If the Aboriginal title claims had succeeded, the outcome of the Chippewas of Saugeen case could also have carried with it further international law implications for the Canadian state.¹³⁵ The court gestures at this possibility when the trial judge noted that where such claims involve “an international boundary, that also brings a geographic factor into the analysis.”¹³⁶ In addressing this issue, the court confirmed the Supreme Court of Canada’s jurisprudence that, in situations where “Aboriginal interests and customary laws were presumed to survive the assertion of sovereignty, and were absorbed into the common law as rights,” those interests and laws survived only to the extent that they did not violate Crown sovereignty.¹³⁷ In addition, were the claims to be upheld at trial, they could have had the potential of affecting Canada’s international boundary with the United States as they could potentially exclude “recreational use” and “commercial uses” as well as affect “national defence.”¹³⁸ It is thus unsurprising why the court concluded that the “historical practices” and customs that the Chippewas of Saugeen peoples relied upon had consequences for Canada’s international boundaries.¹³⁹

One can also observe that the court attempted to restrict Indigenous title in the Great Lakes region and its effect on Canadian-US relations in Chippewas of Saugeen. ¹⁴⁰ This point raises a number of contradictions in Canada’s own state practice. Notably, Canada relies on Aboriginal histories to ground its claims in its ongoing dispute with the United States concerning the Northwest Passage in the Arctic archipelagic region. Canada’s argument typically revolves around the concept of historical internal waters use by its Inuit people, which challenges and resists the American characterization of the Northwest Passage as international waters.¹⁴¹ A similar analogy drawn in comparison with the Western Sahara advisory opinion has also been advanced in support of Canada’s claim when the ICJ held that the territory in question in Western Sahara was not terra nullius and that Indigenous nomads could still claim title to the territory based on occupation and long use.¹⁴² In this respect, if Canada could repurpose the Western Sahara decision to advance its claims to the Northwest Passage based on the “occupation of sea ice” by the Inuit people in response to its ongoing dispute with the United States in these contested areas, there should be no difficulty in applying this analogy internally to water-mediated claims by Indigenous peoples within Canada through an expanded construction of “occupation and use” to encompass water.¹⁴³

The plaintiffs appealed the trial court’s decision in Chippewas of Saugeen. This appeal — Chippewas of Nawash Unceded First Nation v Canada (Attorney General) — was partly successful as the case was remitted to the trial judge to decide “whether Aboriginal title can be established to a more limited and defined area, in accordance with the Tsilhqot’in test.”¹⁴⁴ A possible reconsideration of this case on its merits is a positive step for Indigenous peoples and law. However, the limits placed on them by the court of appeal’s remittance that the proof of title claim must follow the dry land test in Tsilhqot’in Nation means that the Chippewas nation might have to find resolution within the constraints of a land-centric framework. Here, the prospects of success are quite slim if proof of such water-mediated spaces does not align with Tsilhqot’in Nation. ¹⁴⁵ Once again, we observe how the courts might adopt and apply a test that is unlikely to succeed or produce an outcome that does not address the questions at issue.

The order for retrial equally raises some international law considerations. Perhaps the international boundary implications of the title claim by the Chippewas people might have motivated the attempt by the court of appeal to limit the scope or coverage of the claim should the plaintiffs’ claim succeed at retrial. As the Ontario Court of Appeal had noted, “[t]he trial judge also expressed concern that the Title claim area extended to the international boundary with the United States, and that SON [that is, the plaintiffs] sought the right to control that area for all purposes, including with respect to national defence.”¹⁴⁶ This concern expressed by the trial judge was premised on “whether recognising Aboriginal title to submerged land that extends to the international boundary is compatible with Canadian sovereignty.”¹⁴⁷ Demonstrably, the trial court’s insistence on a strict dry land-based framework seems motivated by an intention to constrain the potential complications that a judicial decision might present in this respect, and its extra-jurisdictional implications for Canada. As a result, if one fails to avert their mind to the imperial and colonial subtexts of these cases and their related doctrines like terra nullius and aqua nullius, it is difficult to detect how the courts reinterpret and reinforce the legal emptiness of these doctrines as applicable to contested water-mediated spaces in a bid to contain and suppress Indigenous claims that have potentially complex implications on the Canadian state’s sovereignty at home and abroad.

A residual challenge that a possible retrial presents is that the plaintiffs are likely to face a second round of rejection from the court. Here, it is important to note that the spiritual connections of the Chippewas people to the disputed area were earlier rejected by the trial court, which held that the plaintiffs had failed to establish historical use and occupation. At the trial, the judge downplayed the reliability of the oral evidence provided to back these claims. In her opinion and reaction to this issue, the judge stated that “formality is not required, but it enhances reliability.”¹⁴⁸ Regrettably, this formalist approach to the reception of oral histories is not new as it has been frequently deployed in judicial decision-making processes as a technique to discipline Indigenous law.¹⁴⁹ So, it is important to reiterate that a casualization of Indigenous world views underpinning title claims as merely stories that can hardly be offered in support of evidence is inconsonant with the teleology of section 35(1) of the Constitution Act, 1982.

Therefore, it seems that this round of new cases only reinforces the apprehension that some Indigenous law scholars have that “the purpose of section 35 was to facilitate the reconciliation of the prior presence of Aboriginal peoples to the sovereignty of the Crown.”¹⁵⁰ In this sense, formalism operates as a barrier to effective reconciliation. It threatens the objectives of reconciliation as confirmed in even dry land-based cases where it was asserted that “the Delgamuukw case affirmed Aboriginal title, but also affirmed Crown title and the settler governments’ right to infringe on Aboriginal rights and title.”¹⁵¹ Viewed this way, insofar as Aboriginal rights or claims threaten to erode Crown sovereignty, the process of reconciliation is then purposely undertaken in a manner that aligns with the Crown’s interest and not the interest of Indigenous peoples. A deeper review of this concern exposes the silent international law dimension of domestic legal developments like reconciliation since the original purpose of European expansionism, including legal imperialism, remains protected till date, albeit through a less visible strategy.

In this respect, this new line of judicial pronouncements is reminiscent of a seemingly past era of international law that created and upheld aqua nullius. These decisions do so by quietly rejecting Indigenous cosmologies in favour of European claims of sovereignty and title through the instrumentality of Western law. For instance, the express reference to the Tsilhqot’in Nation test suggests that the Ontario Court of Appeal, just as its trial court counterpart did, failed to consider the more-than-land context of the areas being claimed in this dispute. Whereas Tsilhqot’in Nation was a dispute over dry land, which tends to have well-defined limits and is more amenable to the incidence of physical occupation, water-mediated spaces do not possess similar attributes. To this end, a pure dry-land analysis is simply incompatible with Indigenous views on the land-water interface. As the analysis shows, however, the courts appear to be cautious of the far-reaching implications of these water-mediated claims in and outside Canada, not that the claims are without merit or incapable of being proved in accordance with Indigenous ways of knowing and living.¹⁵² Either way, a resolution of Chippewas of Saugeen and similar ones cannot be based on the limited scope of the tests in either Delgamuukw or Tsilhqot’in Nation.

There is yet another case beyond Chippewas of Saugeen and Chippewas of Nawash. The Dzawada’enuxw First Nation has also brought an action seeking to extend its Aboriginal title over the oceans.¹⁵³ This is an action demanding the removal of salmon fish farms from a section of the coast of British Columbia. While this case has still a long way to go, it is indicative of the growing interest to challenge Indigenous dispossession and the restoration of Indigenous control over water-mediated spaces. The resolution of Dzawada’enuxw First Nation v Minister of Fisheries and Oceans et al will have implications for Indigenous access to fishery resources and fishing grounds as a matter of asserting Aboriginal title.¹⁵⁴ Thus, this line of cases are charting the path for a new phase of Indigenous-settler relations.

7. Dismantling the residuality of the aqua nullius doctrine

As demonstrated in the foregoing analysis, the standard legal test for Indigenous title in regard to title claims over rivers, lakes, or ocean spaces under the law of the Canadian state is inadequate.¹⁵⁵ To address this challenge, Canada needs a broader approach in interpreting and enforcing relevant constitutional provisions on Indigenous issues and its obligations under international law. If the framework envisaged under section 35(1) of the Constitution Act, 1982, is to effectuate the objectives of reconciliation, then Canadian courts must be willing to move away from the narrow interpretive framework of the tests formulated in Delgamuukw or Tsilhqot’in Nation and embrace an expanded agenda that is capable of vindicating Indigenous title claims to water.

On this subject, Canada’s incorporation of the UNDRIP is a significant first step to improving settler-Indigenous relations.¹⁵⁶ Here, the passage of the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIP Act) by the Canadian Parliament marked a defining moment for Indigenous jurisprudence.¹⁵⁷ This Act affirms the UNDRIP as applicable within Canadian law and further calls for an UNDRIP-driven implementation plan in Canada.¹⁵⁸ In this respect, the UNDRIP Act is capable of giving effect to several UNDRIP provisions as they are relevant to the realization of the objectives of the declaration as an international law objective and reconciliation as a domestic imperative. For instance, with respect to Indigenous peoples, the UNDRIP affirms “their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources.”¹⁵⁹ The itemization of dry lands and water-mediated spaces in Article 25 of the UNDRIP and their distinguishing corresponding cosmologies invite a more intentional effort to give effect to their domestic legal significance and international solidarity aspirations.

It is for this reason that the incorporation of the UNDRIP into Canadian law heralds the prospects of re-engaging with section 35(1) of the Constitution Act, 1982, for a more vigorous commitment to the interpretive framework of Aboriginal rights and claims.¹⁶⁰ The UNDRIP proposes a new frontier of engagement with Indigenous relations, one that endorses a helpful turning to international instruments for significant illumination and legal guidance. On this subject, Aboriginal jurisprudence must reflexively engage with the UNDRIP as the declaration highlights international legal principles that must assume a central role in domestic law. This point was recently confirmed in the case of Thomas and Saik’uz First Nation v Rio Tinto Alcan, which dealt partly with a similar Aboriginal title claim to a riverbed, where the British Columbia Supreme Court held that the UNDRIP “supports a robust interpretation of Aboriginal rights.”¹⁶¹ In this respect, under-explored subjects like water colonialism as a variant of the international law on colonialism must begin to feature robustly in this expanded interpretive paradigm.¹⁶² Thus, water injustice, based on the enduring character of aqua nullius, must be rejected as having no place in Canada.

A renewed interpretive outlook must engage with Indigenous perspectives under principal legislation, including water laws and policies.¹⁶³ This UNDRIP-inspired approach can play a very useful role in how Canadian courts engage with Indigenous title claims to water-mediated spaces. As Diana Ginn has argued for this position, “[t]he possible application of [A]boriginal title to an area of seabed, when taken in conjunction with the collaboration already required by the Oceans Act, makes it clear that the participation of First Nations will be an important element of the implementation of an oceans strategy.”¹⁶⁴ This argument can be extended to other water-mediated spaces beyond the oceans. In this respect, the remittance in Chippewas of Nawash for a re-determination of the Aboriginal title claim to part of the Great Lakes region might benefit from this extended approach. This point is relevant since Article 25 of the UNDRIP underscores the rights of Indigenous peoples at international law to maintain their traditional relationships with both land and water, a relationship that underscores the spiritual, cultural, and relational connections with both land and water.¹⁶⁵

Additionally, the incorporation of the UNDRIP in Canadian law puts into perspective other challenges confronting Indigenous peoples and their customary rights over water-based resources. From access to fishing in traditional marine waters to Indigenous conservation practices, the UNDRIP offers an opportunity to foreground foundational change in existing colonial inroads into water-mediated spaces. For instance, recent disputes between the Mi’kmaq First Nation of Nova Scotia and commercial fishers over lobster fishing further highlights the inadequacy of Canada’s Oceans Act since the administrative and legislative action in the aftermath of the Supreme Court of Canada’s decision in the Marshall case has not effectuated the constitutional imperative of section 35(1) of the Constitution Act, 1982. ¹⁶⁶ The resulting effect is that an UNDRIP-inspired process can successfully challenge and reorient the governing authority of the Department of Fisheries and Oceans, the implementing agency of the Oceans Act, by demanding a rematriation of ocean spaces to Indigenous peoples and the finalization of co-sharing and co-management arrangements.¹⁶⁷

It is in this sense that this lobster dispute in Nova Scotia is described as “the unfinished business” of the Marshall case based on its failure to address the rights of Indigenous peoples to marine spaces and resources.¹⁶⁸ The lobster fishery dispute must therefore be understood and re-interpreted as part of the vestigial remnants of aqua nullius, which effectively supplanted Indigenous hydro-sociality with Western epistemologies and laws that fundamentally dislodged unique Indigenous relationships with water.¹⁶⁹ Quite evidently, the resolution of Dzawada’enuxw First Nation on the licensing of salmon (aquaculture) farms off the coast of British Columbia presents another opportunity for the Canadian courts to address the unfinished business that was left in the aftermath of the Marshall case.

The entry of the UNDRIP into the Canadian law thus raises concerns over the domestic applicability of international law. Here, the language in Article 25 of the UNDRIP provides specifically for “lands, territories, waters and coastal seas and other resources” and opens the door to the assertion of water-mediated claims under the rubric of “waters and coastal seas and resources.”¹⁷⁰ Further, the UNDRIP Act “affirms” the UNDRIP as “a framework for the Government of Canada’s implementation of the [d]eclaration.”¹⁷¹ Craft confirms this point in a recent review where she argued that Article 25 of the UNDRIP provides a rich starting point for Canada to re-engage with Indigenous law and the complex spiritual relationships between water, law, and peoples.¹⁷²

Nonetheless, the incorporation of the UNDRIP in Canadian law does not demonstrate an immediate guarantee with respect to its domestic applicability.¹⁷³ This is evident in the similar framing of section 6 of the UNDRIP Act as it proposes an action plan to “achieve the objectives of the [d]eclaration.”¹⁷⁴ This open-ended approach to implementing the UNDRIP, even after its domestication, exposes Indigenous peoples to further complications in their quest to vindicate their rights under the UNDRIP. ¹⁷⁵ This point is confirmed in a recent case where the British Columbia Supreme Court, in considering the provincial UNDRIP-implementing legislation, held that the UNDRIP is an “interpretive aid” that does not confer enforceable rights.¹⁷⁶ This decision proceeded on the grounds that the UNDRIP itself is not a treaty under international law. Nonetheless, a different take on the UNDRIP as soft (international) law might shift thinking that “soft law cannot be simply dismissed as non-law.”¹⁷⁷ Thus, this decision clearly tells us, once again, that an over-reliance on formalism by the courts is a problem that will continue to impede the progress that must be made in turning to Indigenous law.

This complicated situation between Canadian law and the UNDRIP has consequences for ongoing and future water-mediated claims. The attitude of the courts in Rio Tinto and Gitxaala demonstrates that the reception, interpretation, and enforcement of the UNDRIP as a significant normative framework for reworking Indigenous-settler relations in Canada faces an uphill task.¹⁷⁸ Indigenous law scholars like Christie have also highlighted this problem as he registers his “full awareness of the unlikely nature of the premise that the Crown might think seriously about engaging in braiding laws in line with principles informing [the] UNDRIP and in light of the fact of strong legal pluralism.”¹⁷⁹ Based on this grim outlook, if these new claims are going to be successful, Canada must move the UNDRIP forward very quickly beyond mere interpretive analysis so that it advances the substantive implementation of a renewed vision of Indigenous law as envisaged under the UNDRIP.

8. Conclusion

The influence of international law on domestic law demands constant investigation. In this respect, this article has argued that, whether it is terra nullius or aqua nullius, the domestic manifestations of these doctrines derive their source from imperial and colonial constructs that have their origin in international law. One manifestation of this problem — from international law to domestic law — is that these Eurocentric doctrines have been the subject of judicial inquiry in land-centred claims in settler-colonial states, including Canada. Indigenous peoples have had to repeatedly call into action their cosmologies to challenge these doctrines or support their claims in and out of courtrooms. The recognition of Indigenous cosmologies and their vindication in Delgamuukw and Tsilhqot’in Nation and how these cosmologies came to ground Aboriginal title to land as pre-existing the Crown’s claim is plainly needed for water-mediated claims as well. Thus, the response to the central question in this article goes beyond the assertion of certain rights attached to ownership in the context of water-mediated claims.¹⁸⁰ It goes to the root — that is, the character of title claims and their proof.

These water matters demand deeper considerations of relationality that cannot be subsumed under an unworkable dry land analysis.¹⁸¹ Here, the call to action is that the land-centred focus of both Delgamuukw and Tsilhqot’in Nation as well as similar cases cannot continue to be used as the interpretive guide in Aboriginal title claims to water-mediated spaces. Of course, this article does not under-estimate the significant milestones advanced by these land-centric cases. Rather, the article advocates intentionality and attentiveness to water and its unique significance as a site of contestation and reorientation at the intersection of international law and domestic law. Effectively, water-based jurisprudence must complement its land-centred counterpart. This point is confirmed by other Canadian legal scholars. For example, Robert YELKATŦE Clifford reflects on what the Canadian state can learn from W̱SÁNEĆ law and argues that the current jurisprudence from even the Supreme Court of Canada is unable to effectively address previous challenges relating to the vindication of Indigenous claims.¹⁸² This point invites a critical turn especially as the UNDRIP assumes a more prominent role in Indigenous jurisprudence in Canada and elsewhere.¹⁸³

An important aspect of this difficult, but nonetheless important, process will be the humility of the Canadian state to accept that it has still a long way to go in learning the many Indigenous ways of knowing and living and the proof of the existence of Indigenous phenomena. The jurisprudence on section 35(1) of the Constitution Act, 1982 will require a significant overhaul to address its colonial vestiges and bring it in line with the international law aspirations under the UNDRIP. ¹⁸⁴ It also involves the willingness to embrace Indigenous knowledge and ideas in a manner that promotes reconciliation, responsibility, and reciprocity between Indigenous world views and contemporary understandings of water within domestic and international law.¹⁸⁵ With newer cases emerging over water-mediated spaces, aqua nullius and similar concepts cannot be left to continue their unjustifiable stance on sovereignty and Indigenous dispossession. Ultimately, the resolution of this new line of cases on water-mediated spaces must contend with the enduring effects of international law doctrines, like aqua nullius, as present within domestic law.