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Vaughn Palmer: Another wake-up call as B.C. court awards claim of Aboriginal title over Nootka Island

Opinion: Court of Appeal recognizes 100 per cent of the Nuchatlaht nation’s claim of title. 'That’s going to have a big impact all over B.C.', winning legal team says

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VICTORIA — The courts delivered yet another wake-up call to the B.C. government and public last week by recognizing 100 per cent of the Nuchatlaht nation’s claim of Aboriginal title over Nootka Island.

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The unanimous decision by three B.C. Court of Appeal judges recognized Aboriginal title over 210 square kilometres of the West Coast island, an almost 20-fold increase over the area granted in a 2024 B.C. Supreme Court finding.

Vaughn Palmer: Another wake-up call as B.C. court awards claim of Aboriginal title over Nootka Island Back to video

“We got it all,” declared Kate Gower, a member of the winning legal team. “That’s going to have a big impact all over B.C.”

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The decision makes the Nuchatlaht leaders in Canada when it comes to land claims, Gower told Stefan Labbé of Business In Vancouver.

Senior counsel Jack Woodward said the implications are far-reaching for government and Indigenous nations alike.

“We now know that the courts are the place to go for First Nations if they want some kind of restoration of their ancestral rights,” said Woodward. “The negotiating table seems to not work, whereas this did.”

Weighing in on the implications this week was Dwight Newman, a law professor at the University of Saskatchewan.

He noted that the Appeal Court took a broader view of the evidence sufficient to establish Aboriginal title.

“The trial judge accepted the claim only with respect to smaller areas of coastal land where there was more thorough proof of use of the land by the Nuchatlaht,” wrote Newman on his Law For Breakfast online site Tuesday.

“However, the Court of Appeal was ready to infer a related use of inland areas by a community that would have used some resources from that area, as well as to give some weight to a presence of culturally modified trees in parts of the inland area.

“There is a significant conclusion here in terms of a readiness to infer sufficient occupation based on a more limited evidentiary record.”

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The court finding that “culturally modified trees” are a “repository of history” will have far-reaching implications for other claims, said Woodward.

“This is an ancient old-growth cedar forest, and when the Indigenous people use the cedar trees, they survive that use,” he explained.

“You can strip the bark off the tree and the tree keeps alive, and then you can go back decades later and do that process again. And because trees keep a record in their annual rings of what year you did it, we now have the evidence of 200 to 300 years of Indigenous use right in the bodies of the trees themselves. It is a record, a physical record of human habitation.”

A half dozen Indigenous nations intervened in support of the Nuchatlaht, anticipating findings that would support their own title claims.

Law professor Newman credited Woodward and his team with finding a way to expedite Aboriginal title claims. The trial phase of the Cowichan title case, decided last August, consumed 500 days. The Nuchatlaht trial played out in about 50 days.

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“The shorter length undermines an argument that has been going around of late that nobody should think of the Cowichan case as posing many issues for others because it is simply too difficult to bring an Aboriginal title claim.”

Woodward credited the Nuchatlaht nation’s decision to avoid some contentious aspects of title cases, including claims on private land, federal government land, and overlaps with neighbouring Indigenous nations.

“My clients did not want to get involved in the struggle with private owners,” Woodward told Jill Bennett of CKNW Radio. “The boundary of this claim area was deliberately drawn around their lots, so they were not threatened by this.

“The Nuchatlaht did not get into a fight with neighbouring First Nations, so they eliminated any potential overlapping claims. They avoided any fights with Canada, so they avoided claiming any federal lands. And of course they did not have any contest with fee-simple (private) lands.”

What remained was mostly provincial Crown land, including parts of a provincial park.

The court found that the Forest Act and the Park Act would no longer apply to the newly recognized Aboriginal title lands, said Newman.

“Crown land that was being used by ordinary British Columbians may or may not continue to be accessible to them, and the environmental management of a provincial park is now under a newly divided regime between the province and a First Nation.”

The Court of Appeal decision marked another defeat for the provincial government. It lost the argument that the B.C. Supreme Court judge “correctly outlined and applied the test of Aboriginal title.”

Attorney general Niki Sharma says the province “will take the time needed to assess the implications and our legal options going forward.”

The sweeping aspect of the court’s finding on Aboriginal title further underscores the need for the legislation recently introduced by the B.C. Conservatives.

It would require the province to establish a public registry of all claims of Aboriginal title and notify owners where their property is affected.

So far, the New Democrats have scorned the need for such legislation and rebuffed media calls to disclose how many claims of Aboriginal title there are in B.C.

vpalmer@postmedia.com

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