‘Historic’ Aboriginal land title trial to begin in BC Supreme Court

When Captain James Cook encountered the ancestors of the Nachatlaht people in 1778, the British explorer wrote in his journal that he had “no where met with Indians who had such high notions of every thing the Country produced being their exclusive property.”

Those words may come back to haunt the Crown in the coming weeks as the Nachatlaht embark on an unchartered journey of their own: a legal quest to obtain Aboriginal title over 200 square kilometers of land off the west coast of Vancouver Island.

Members of the First Nation will be in BC Supreme Court on Monday for the beginning of what some observers expect to be a groundbreaking trial as they attempt to prove their right to Crown land mostly understood of Nootka Island.

The ‘promise’ of Tŝilhqot’in nation

The case could be the first to apply a historic precedent set by the Supreme Court of Canada in 2014 — when the country’s top court granted the Tŝilhqot’in First Nation title to more than 1,700 kilometers of land in northern British Columbia.

The Supreme Court of Canada set a three-point test to establish Aboriginal title in 2014. The Nuchatlaht case will draw on that precedent. (Adrian Wyld/Canadian Press)

The Supreme Court of Canada ruling established a three-point test for title that includes proof of exclusive occupation of an area in 1846, the date of a treaty that established the present-day boundary between Canada and the United States.

The ruling was also important because it determined that Aboriginal title could be exerted over large tracts of traditional territory — not just small sites.

“It’s historic in the sense that we’re now entering a phase of First Nations following through on the promise of Tŝilhqot’in Nation,” said Gordon Christie, a University of BC professor who specializes in Aboriginal and Indigenous law.

“And here we’re seeing whether the promise is really going to be realized or not.”

‘Relatively small and relatively weak’

The Nuchatlaht First Nation filed its notice of civil claim in 2017 against the province of BC, Canada’s attorney general and Western Forest Products, seeking Aboriginal title to the area, located about 300 kilometers northwest of Victoria.

According to its website, the First Nation has 151 members — only 20 of whom live on reserve.

This map depicts the traditional lands of the Nuchatlaht First Nation on the west coast of Vancouver Island BC (Nuchatlaht First Nation)

“The modern-day Nuchatlaht is descended from and a continuation of the Nuchatlaht Aboriginal community that existed in 1846 in what is now British Columbia,” the notice of claim reads.

“The Nuchatlaht exclusively occupied the Claim Area in 1846.”

The province’s response to the claim alleges that prior to the time the British asserted sovereignty over the area the First Nation are claiming, the Nuchatlaht were a “relatively small and relatively weak association of groups” that had been “displaced from areas outside the claim area by other Indigenous peoples.”

“There are not now and for many years there have not been Nuchatlaht resident communities in the claim area,” the response reads.

‘But it proved otherwise’

The document that initiated the claim is brief, citing the Tŝilhqot’in decision as the legal basis for the claim. The trial is expected to last 59 days, and will include testimony from historians, archaeologists and other experts.

Cook’s journals will be placed into evidence, along with those of other explorers who made contact with First Nations centuries ago.

Captain James Cook died in 1779, a year after sailing into Nootka Sound at the head of a British expedition. His journals will be entered into evidence as part of a case seeking to exert Aboriginal title over the area. (Nathaniel Dance/National Maritime Museum/Wikimedia Commons)

A 188-man British expedition led by Cook sailed into Nootka Sound in March 1778.

According to documents entered into evidence in a previous court case, Cook wrote that their two boats, The Resolution and The Discovery, were greeted by dozens of people in canoes who didn’t show “the least mark of fear or distrust.”

In addition to writing about the customs and habits of the Indigenous people he encountered, Cook also made a number of observations that appear to speak directly to their view of property rights.

Cook said he sent men to cut grass to feed his goats and sheep, “not thinking that the Natives could or would have the least objection.

“But it proved otherwise,” the explorer wrote.

“I went to the place and found about a dozen men who all laid cla[i]m to some part of the grass which I purchased of them and as I thought liberty to cut where ever I pleased, but here again I was mistaken.”

What will UNDRIP mean for law?

The Nuchatlaht case also promises to be significant because it’s the first to come to court since the province passed legislation in 2019 to align its laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Article 26 of the declaration specifically states that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”

BC Premier John Horgan is presented with a blanket during a ceremony at the Assembly of First Nations in 2019, the year the province passed legislation to align its laws with the United Nations Declaration on the Rights of Indigenous Peoples. (Adrian Wyld/Canadian Press)

Christie says it is uncertain how the commitment to UNDRIP will play into the province’s arguments and the judge’s considerations.

“With UNDRIP now here — and Canadian law has recognized it both federally and provincially — we’re just waiting to see what that really means,” he said.

‘There has to be a recognition’

David Rosenberg was one of the lawyers who fought for the Tŝilhqot’in victory in 2014.

He’s not part of the legal team representing the Nuchatlaht but is involved in a case involving another First Nation that will likely also be previous setting because it deals in part with the assertion of Aboriginal title over privately-owned land.

Like Christie, he’s curious to see how UNDRIP will play into the proceedings.

He says the province’s embrace of the declaration means BC cannot be opposed — as a policy — to the establishment of Aboriginal title but can tell a First Nation claimant they need to establish their rights according to the legal test.

Rosenberg says he sees the case as part of a continuum.

“We have come alive to the fact that there has to be a recognition that the people who were here at the time of contact and were here at the time of the assertion of British sovereignty have not been treated fairly up until this point,” he said.

“The First Nations of British Columbia have never received justice and have not been in the position to share in the bounty and the resources that other British Columbians have benefited from.”

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