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B.C. argues Nuchatlaht Nation ‘abandoned’ its territory. Lawyer reminds court ‘land was stolen’

In the first-ever title case argued in B.C. since the province introduced UNDRIP legislation, Crown lawyers assert the nation lost territorial rights by not consistently occupying their lands. Experts say the argument is strange, possibly illegal and a step back for reconciliation

Archie Little draws himself up with pride as he describes his homeland on the north of Nootka Island, with its wealth of natural resources, and his people, with their centuries-old reputation for hospitality and wealth sharing.

“I kind of want to brag about Nuchatlaht, a very unique place with a very unique — with a powerful — history,” said Little, Nuchatlaht house speaker and cultural worker. 

He described a world of towering cedar forests, where bark and wood were harvested for everything from household items to ocean-going canoes and healthy salmon streams provided ample food.

“At one time we were OK and we want to get back to being OK,” said Little, speaking at a webinar held to raise funds for a Nuchatlaht Nation case that will claim legal title to territory on the north of Nootka Island off the west coast of Vancouver Island.

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“We want to take ownership, management, [we want] enhancement, protection, access and sharing of our resources that come from the air, the water, the land and the people.”

The land claim, which could set the stage for other First Nations in B.C., was launched in January 2017, but has not yet been tested in B.C. Supreme Court. Nuchatlaht leaders lay blame for the drawn-out process on provincial government lawyers who claim the nation abandoned their territory. The delays mean escalating costs for the small band, which has fewer than 170 members.

The province has purposefully taken up a phoney defence designed to delay justice, said Jack Woodward, lawyer for the Nuchatlaht.

“This defence of abandonment is a procedural barrier. It’s a way of making it difficult and expensive to get to court. Of course, the government has unlimited resources to fight us and we don’t have unlimited resources,” Woodward said at the webinar.

“We don’t have a trial date and one of the reasons we don’t have a trial date is that the government is saying they need more time to organize their evidence of abandonment. We are saying you don’t need any more time to organize evidence of abandonment — first, you shouldn’t be pleading it and second, there is no evidence because there was no abandonment,” he said.

A map showing the traditional territory of the Nuchatlaht First Nation's traditional territory

A map showing the traditional territory of the Nuchatlaht Nation. The territorial claim is unique in that it extends into the ocean, a rich source of food and life for the Nuchatlaht. Map: Carol Linnitt / The Narwhal

Nuchatlaht case comes in wake of failed treaty talks

Little’s picture of pre-European-contact life on Nootka Island differs sharply from that of provincial lawyers who describe semi-nomadic family groups who “did not exclusively occupy the claim area” and who later abandoned their traditional territory.

“There are not now and for many years there have not been Nuchatlaht resident communities in the claim area,” the provincial government said in its response to the Nuchatlaht title claim to about 20,000 hectares.

While the province points to overlapping claims by other First Nations, Little said Nuchatlaht historically hosted other nations and their leaders but retained control of their territory.

The legal case was launched after treaty talks broke down with the province and Western Forest Products, which holds provincially issued forest tenures in the area, continued logging the cedar forests.

The Nuchatlaht say industrial logging on Nootka Island has irreparably damaged salmon-spawning streams.

“There has been industrial clearcut logging. There’s no thought about tomorrow. It’s take everything now,” Jordan Michael, Nuchatlaht hereditary chief, previously told The Narwhal.

“Salmon are in decline. We are just trying to hang on to the last of the habitat and it’s all slated to be logged. That’s the last of the good fish streams that they haven’t decimated already,” he said.

Read more: In the wake of Indigenous Rights declaration, B.C.’s lawyers make ‘distasteful’ arguments in First Nations title case

Western Forest Products, along with the provincial and federal governments, is a defendant in the case, fighting against the Nuchatlaht claim.

A spokesman for the company told The Narwhal that, although logging on Nootka has not been suspended while legal proceedings are underway, the company shares information about logging activities with the Nuchatlaht.

Clearcut logging on Nootka Island.

Clearcut logging on Nootka Island. Photo: TJ Watt

Provincial case problematic for B.C.’s commitment to Indigenous Rights

The claim is being closely watched as a test of the province’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

In November 2019, B.C. became the first government in North America to pass legislation to implement the declaration, although the action plan to bring provincial laws into harmony with UNDRIP has not yet been completed. Yet the landmark legislation was frequently referenced during the NDP’s recent election campaign as an example of B.C.’s commitment to reconciliation. 

UNDRIP recognizes the inherent rights of Indigenous people to their lands, territories and resources and requires Indigenous communities to consent to decisions — especially concerning natural resource development — that affect their rights.

“Indigenous people have the right to the lands, territories and resources that they have traditionally owned, occupied or otherwise used or acquired,” the declaration states.

So, the argument by B.C.’s lawyers that the court must be satisfied that the Nuchatlaht did not abandon their land is puzzling, say legal experts.

Woodward described it as a troublesome pleading as there is extensive documentation by British and Spanish explorers and government officials of Nuchatlaht occupation of the area.

“We say this is oppressive by the Government of B.C. and it’s not only oppressive, it’s wrong and it’s actually illegal,” said Woodward, who is renowned for his role in drafting Section 35 of the Canadian Constitution, which enshrined Indigenous Rights. Woodward also fought the precedent-setting 2014 case that granted the Tsilhqot’in First Nation title to 1,750 square kilometres of territory.

Jack Woodward, lawyer for the Nuchatlaht

Jack Woodward, lawyer for the Nuchatlaht, drafted Section 35 of the Canadian Constitution, enshrining Indigenous Rights. Photo: Daniel Pierce

John Borrows, Canada Research Chair in Indigenous law at the University of Victoria, said it is surprising the province is making the claim of abandonment.

“It is not [a claim] that is usually made and you have to establish that claim by common law and Indigenous law perspectives,” he said.

If provincial lawyers want to reference abandonment, they must also consider Nuchatlaht law related the issue of abandonment, Borrows said.

“It can’t just be tested by the Crown’s common law standards,” he said, adding abandonment might be difficult to legally establish under common law. 

A more usual argument would be one that asserted a group of Indigenous people was not organized as a society or a nation, he said. The government’s response to the title claim touches on those arguments, describing the Nuchatlaht as “a relatively small and relatively weak affiliation of groups” in 1846, when the British Crown claimed sovereignty over Nootka.

The opposite view, set out in the Nuchatlaht statement of claim, points to exclusive possession of the area with a direct line through generations of Hereditary Chiefs and documented evidence of Nuchatlaht culture going back to 1778, after Capt. James Cook sailed his ship Resolution into Nootka Sound.

“There’s an unbroken written history of the Nuchatlaht people from those days. It’s the most extensive written history of people who lived on their land in all of Western Canada and the western United States because it was the centre of the maritime fur trade,” Woodward said.

An emailed answer to questions from The Narwhal from the Ministry of Attorney General said that as the title claim is before the Supreme Court of B.C., “it is most appropriate that any discussion about the province’s response to the claim and the procedural issues between the parties should occur in that forum.”

The government aims to work with Indigenous groups outside the adversarial context of litigation, “however, when litigation is unavoidable, the province is committed to a principled approach to litigation that supports the public interest in reconciliation,” the ministry noted in a background statement.

‘That is systemic racism’

Torrance Coste, Wilderness Committee national campaign director, who helped organize the webinar, said the newly elected NDP government, with its strong mandate, must look at whether it is serious about reconciliation and the legacy of colonialism.

“This is where the rubber hits the road on conversations around reconciliation and having a better relationship with Indigenous people,” he said.

“When we have a bureaucracy that is making these arguments — that is systemic racism,” he said.

Woodward wants British Columbians to look at the history of the Nuchatlaht Nation whose world disintegrated after European settlers arrived in B.C. and the province parcelled out land to logging companies and private interests. 

Vital cedar forests were logged and when salmon streams were damaged, it destroyed traditional ways of life.

Logging on Nootka Island

Logging on Nootka Island has negatively impacted salmon-spawning waterways. Photo: TJ Watt

The Nuchatlaht faced diseases brought by Europeans such as smallpox, the destruction of the sea otter population that was hunted almost to extinction for the fur trade and dark colonial policies that established residential schools and laws that banned potlatches and traditional dances.

“Despite everything the governments of Canada and British Columbia did, the Nuchatlaht people stayed there tenaciously honouring and living on their homeland. It’s the opposite of abandonment. They stayed there against all odds,” Woodward said at the webinar.

“They did not abandon their territory. They were forced off their territory. Their land was expropriated without compensation. Their land was stolen from them. … It’s unjust and unfair and it’s an appalling thing that the Government of B.C. still pleads abandonment. It’s a real insult,” he said, suggesting that British Columbians should contact NDP politicians and tell them to drop the abandonment defence.

Woodward is confident that, once the title case reaches court, the Nuchatlaht will win.

“Although the Nuchatlaht is a tiny nation, what we are doing is of huge importance for the rights of Indigenous people in B.C. and across Canada,” he said.

“And it’s of huge importance to the great Canadian project of reconciliation.”

Chief Jordan Michael found it difficult to watch Woodward describe the government’s “blatant disregard” for pledges made around the implementation of UNDRIP.

“There’s no sign of good faith whatsoever. … We have been talking to everyone and it seems to be falling on deaf ears,” he said.

A similar argument of abandonment was made by B.C. in the Sinixt case, recently heard by the Supreme Court of Canada, where Woodward, on behalf of the Nuchatlaht, spoke as an intervenor.

The Sinixt territory stretches from Revelstoke south to Washington State, but, after European settlers arrived in the 1800s, the Sinixt were forced to move south and the Sinixt were declared extinct by the Canadian government in 1956.

Read more about the Sinixt case: ‘I wanted to show them I wasn’t extinct’

In 2017, before the Supreme Court of British Columbia, provincial lawyers offered the court an anthropologist who testified that the Sinixt relocated to the United States “enthusiastically.” 

But trial judge Justice Robert Sewell concluded the evidence showed they did not leave their territory voluntarily. 

“It was a matter of making the best choice out of a number of bad choices,” Sewell ultimately concluded. The Sinixt case was argued before the Supreme Court of Canada in October and a decision is expected in the next six to 12 months.

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