Will B.C’s Supreme Court set new First Nations title precedent?

For Owen Stewart, weeks of evidence presented in B.C. Supreme Court can be distilled into the most basic questions: who, where and when.

“The who is the Nuchatlaht, the where is the claim area on the northwest corner of Nootka Island and the when is the date that the British assumed sovereignty in B.C.,” said Stewart, a lawyer for the Nuchatlaht First Nation. The nation is battling for control of more than 200 square kilometres of Nootka Island, off the west coast of Vancouver Island.

The case, which will resume for final arguments in front of Judge Elliott Myers in late September, is among the first to apply the precedent-setting 2014 Tsilhqot’in decision, which granted the Tsilhqot’in Nation title to 1,750 square kilometres of territory. The Nuchatlaht case is also the first title case to test the province’s Declaration on the Rights of Indigenous Peoples Act.

The act, adopted in 2019, is meant to align B.C. laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which states: “Indigenous Peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”

To meet standards set by the Supreme Court of Canada, the Nuchatlaht must prove they occupied the land exclusively in 1846, the date of the Oregon Treaty, when the British claimed sovereignty. The First Nation has records showing a historic line of hereditary chiefs, which remains unbroken today, and also has documented evidence of Nuchatlaht culture going back to 1778, when Captain James Cook sailed his ship Resolution into Nootka Sound.

However, lawyers for the province have argued that Nuchatlaht was not alone when the Crown asserted sovereignty over B.C. They argue the nation was “a relatively small and relatively weak affiliation of groups” and that, later, Nuchatlaht abandoned the territory.

Jack Woodward, lead lawyer for the First Nation who also shepherded the Tsilhqot’in case through the courts, has responded that Nuchatlaht were forced off their territory when extensive clearcut logging and destruction of salmon streams made Nootka Island uninhabitable.

“They were forced off their territory. Their land was expropriated without compensation,” he said at a recent webinar.

Arguments put forward by the province

seem to contradict litigation directives from B.C. Attorney General David Eby. The directives were supposed to minimize the current adversarial approach to land claims by encouraging negotiated settlements and reducing the potential for legal action over Indigenous rights and title.

“The day the litigation directive was released we brought it up in court and the Crown’s lawyer got up and said ‘we reviewed the litigation directive and we anticipate no changes,’ ” Stewart said.

Nuchatlaht Tyee Ha’wilth (hereditary chief) Jordan Michael said in a statement that the province’s reaction represents a step away from reconciliation.

“There has been no show of good faith. The hypocrisy of the provincial government is very apparent and needs to be addressed,” he said.

Eby, in an emailed response to questions from The Narwhal, said the directives “are a formalization of my expectations of the conduct of lawyers in the Ministry of Attorney General. They are aimed at supporting negotiated resolutions and, where that is not possible, they are targeted to minimize the complexity and cost of court cases.”

“The Province respects the right of Indigenous Peoples to choose their preferred forum to resolve legal issues, including through litigation. The purpose of these directives is to ensure the conduct of litigation involving Indigenous Peoples is conducted in a manner that minimizes the potential for an adversarial court process to harm the critical and ongoing work of reconciliation,” Eby said.

The directives are an important step toward reassuring all British Columbians “that the provincial government won’t leave our commitment to reconciliation behind simply because we’re in court,” he wrote.

In light of what is happening in the Nuchatlaht case, the reaction from government lawyers is “very, very disappointing,” said Judith Sayers, president of the Nuu-Chah-Nulth Tribal Council, which has 14 member nations including Nuchatlaht.

With title and reconciliation issues at play, the Nuchatlaht case is being closely watched by other First Nations, said Sayers, who is also a lawyer.

Most nations are waiting to see how the case evolves before considering whether to follow suit. Even if Nuchatlaht wins this round, the province is likely to appeal, she said.

“The province has never seriously negotiated Aboriginal title,” Sayers said.

“We all thought that, with the [1997] Delgamuukw recognition of title, things could change. They didn’t. Tsilhqot’in happened and we thought things would change. They didn’t. B.C. has never seriously implemented court cases. They talk a good talk, but we haven’t seen any action and I think that is what First Nations are going to be weighing up,” she said.

One of the other title cases before

B.C. Supreme Court is Cowichan Tribes’ claim to land near the mouth of the Fraser River in Richmond. It launched in 2014 and is still wending its way through the legal system. That claim is complicated by the inclusion of privately held land.

Many First Nations are reluctant to start legal action because of the cost, Sayers said, but UNDRIP includes clauses on compensation for land and resources taken without consent.

“I think that there’s got to be a process in place to start doing that,” she said.

Article 28 of UNDRIP states: “Indigenous Peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”

“Nuchatlaht has been very clear about how much of their territory has been destroyed by logging and yet, as you’re driving around you’re still seeing logging truck after logging truck leaving the territory. It’s quite shocking,” Sayers said.

A boost to the Nuchatlaht claim of continuous, historical occupation of Nootka Island has

come from new research, published last month in the Journal of Archaeological Science, showing forest gardens were tended by Nuchatlaht on Nootka Island for hundreds of years.

The research, led by Chelsey Geralda Armstrong, assistant professor of Indigenous Studies at Simon Fraser University, working with Nuchatlaht knowledge holders, botanists and archaeologists, found that areas were cultivated to grow foods such as crabapples and berries.

Most of the forest gardens are found beside archaeological village sites and, although it is difficult to pinpoint exactly how long they have been in existence without looking at plant fossil records in the soil, the cultivated sites on Nootka Island appear to have been there at least 200 years, Armstrong said.

“There are also very rich ethnographic accounts of early colonizers who in the 1840s were saying ‘they are as careful of their orchards as we are of ours,’ ” she said.

The gold standard for title claims is whether the land in the claim area was used extensively and efficiently, whether for hunting, harvesting or orcharding, Armstrong said.

“Forest gardens, without question, show both those things … this is a really convincing case in my mind,” she said.

It is not known when a ruling will be made in the case.

“We have our fingers crossed for early in the new year,” Stewart said.

Judith Lavoie is an award-winning journalist based in Victoria, British Columbia. Lavoie covered environment and First Nations storyteller.