Nuchatlaht take fight for heavily logged territory to B.C. Supreme Court. Here’s what you need to know

As Archie Little anticipates the groundbreaking Indigenous title case heading to B.C. Supreme Court on Monday, March 21, he emphasizes the phrase supporters are using to describe the legal battle between the tiny Nuchatlaht First Nation and the provincial and federal governments.

“We’re small, but mighty,” said Little, Nuchatlaht House Speaker, confidently predicting the case will change the course of recent history for Nuchatlaht and also chart a path for other First Nations in B.C. hoping to lay title claim to their unceded territories.

“We won’t lose. We can’t lose. Losing is not in our vocabulary. We’re here to win. We’re here to change. We’re here to make things better for everyone … we all have to encourage the province to come to their senses quickly,” Little said.

The Nuchatlaht rights and title case, claiming about 200 square kilometres of Nootka Island, off the west coast of Vancouver Island, is the first to apply the precedent-setting 2014 Tsilhqot’in decision, in which the Supreme Court of Canada granted the Tsilhqot’in First Nation title to 1,750 square kilometres of territory.

It is also the first title case to test the province’s Declaration on the Rights of Indigenous Peoples Act, passed in 2019. The act is meant to bring all B.C. laws into alignment with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

So, as the Nuchatlaht prepare to take their arguments to B.C. Supreme Court, here’s what you need to know about one of the most important Indigenous title cases currently being fought in the province.

Why is the Nuchatlaht land title case heading to court now?

Intensive industrial clearcut logging by forestry company Western Forest Products has removed 80 per cent of the old-growth timber on Nootka Island and destroyed salmon streams, according to Nuchatlaht Ha’wilth (Hereditary Chief) Jordan Michael, who spoke about the legal case at a webinar hosted by the Wilderness Committee in early March.

But the provincial government, which manages forestry tenures and licences, has refused to recognize Nuchatlaht’s right to manage and protect their territory, Michael said.

In January 2017, expressing frustration that protracted treaty negotiations with B.C. and Western Forest Products were allowing extensive forestry operations to continue impacting water quality and salmon runs, the Nuchatlaht filed their land claim in B.C. court.

The case then stalled out, after the province claimed the Nuchatlaht did not have legal claim to their lands because the nation abandoned its territory.

The abandonment claim snagged the case in pre-trial limbo for years as the province sought to establish the Nuchatlaht’s abandonment of their territory. Provincial lawyers even requested the nation provide documents proving they did, in fact, abandon their territory. 

Jack Woodward, lawyer for the Nuchatlaht, said he briefly held out hope earlier this month that the provincial government might back down and settle the case outside the courts. But the case is now advancing to the B.C. Supreme Court in Vancouver, with the trial expected to last for eight weeks until early June, followed by two weeks of legal submissions in September. 

B.C. is arguing the Nuchatlaht abandoned their territory and did not hold Aboriginal title

Last week, Woodward received the province’s latest response to the nation’s civil claim which states B.C. “denies each and every allegation of fact” put forward by the Nuchatlaht, “except as expressly admitted.”

The province argues the Nuchatlaht abandoned Nootka Island, that B.C. laws displaced their Indigenous title — meaning forestry tenures are lawful — and that the Nuchatlaht Nation was a loosely affiliated group of First Nations families that was too small and weak to hold Aboriginal title, as it’s known in legal terms.

Woodward, who successfully litigated the precedent-setting Tsilhqot’in case — which established that semi-nomadic First Nations can claim entire territories, not only village sites — and is renowned for his role in drafting Section 35, which enshrined Indigenous Rights into the Canadian Constitution, is exasperated by the provincial arguments.

Nuchatlaht did not abandon their lands, but were forced off them when their territory became Crown land, making it an offense to build a house or cut trees on the territory, he said.

“They were evicted. They were forced off their land by the government. This is a disgraceful argument and I am embarrassed that our province continues to advance that position,” Woodward said.

The response document from the province describes the Nuchatlaht as “a collective of politically autonomous local groups” that cohabited in the territory between 1803 and 1846 and says that “there are not now and, since the 1980s there have not been, resident communities in the claim area.”

The document also claims the Nuchatlaht “is a modern-day Indigenous collective which, through the lineage of Michael family chiefs, is descended from an historical Indigenous group which used and occupied a part of the claim area at the time when the British Crown asserted sovereignty over Nootka Island and the surrounding area.”

The province also claims the particulars of the current civil claim are argued “without clarity and inaccurately and are denied.”

Woodward said, “It has been the shame of British Columbia. It’s really our original sin in this province that there have been no proper dealings with the First Nations about their lands, which were simply taken. What is new is that the current government has promised that they are going to conduct this litigation in a spirit of reconciliation on a principled basis.” 

How does B.C.’s fight against the Nuchatlaht square with the province’s promise to uphold UNDRIP?

The Nuchatlaht title claim is being closely watched as a test of the province’s commitment to UNDRIP as it is the first case to be brought before the courts since B.C. passed legislation to implement the declaration in 2019. 

The landmark legislation has been frequently referenced by the government 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.

But so far the Nuchatlaht understand the province’s fight against the civil claim as a reason to question B.C.’s commitment to UNDRIP.

“Considering the way Canada has been towards us up to now, there’s been no sign of UNDRIP or any of that good faith yet, so I was not holding my breath,” Michael said during the webinar. While there was opportunity for Crown prosecutors to change their strategy when arguing abandonment, so far that has not happened. 

“Sure enough, there’s no change in their tactics. It’s pretty disappointing, but no surprise,” he added.

A spokesperson for the provincial Ministry of Indigenous Relations and Reconciliation told The Narwhal the province’s primary goal is to resolve issues outside the courts, but the government respects the right of Nuchatlaht to pursue their interests through the legal system.

“We are deeply committed to advancing reconciliation in B.C. —- guided by the Declaration on the Rights of Indigenous Peoples — and with meaningful consultation and cooperation with Indigenous Peoples,” a spokesperson said in an email.

Under the Constitution and UNDRIP “you cannot say that Indigenous title was displaced or extinguished,” said Woodward, who is also appalled by the argument that Nuchatlaht was too small and weak to have title in 1846 when the British Crown claimed sovereignty over Nootka.

“This is the bully’s argument and I’m embarrassed that our province is still making the argument that only the strong have a right to survive,” Woodward said.

The ministry framed its position differently in response to questions from The Narwhal, stating that since 2019 the province has based its negotiations on a recognition of the inherent rights of Indigenous Peoples, “with all agreements stating explicitly that government will not require Indigenous Peoples to extinguish their rights. … The province is not arguing extinguishment, nor has it advanced such a defence at any time since initiation of this litigation.”

But Woodward said that provincial claims that ‘if there was Aboriginal title it was displaced’ is functionally “the extinguishment argument recycled with a different word.”

“Nuchatlaht was small and they had this magnificent territory and a complex and very intricate network of diplomatic and family relationships with their neighbouring tribes which guaranteed their continued existence,” he said.

Documents to be submitted during the court case trace Nuchatlaht culture going back to before 1778, when Captain James Cook sailed into Nootka Sound, and illustrate an unbroken line of hereditary chiefs that continues to the present day. 

Nuchatlaht were wealthy people before colonization, smallpox and residential schools took their toll and, when they were at their lowest ebb, the government passed laws taking away their land and issuing forest licences to multinational corporations, Woodward said.

What would a title win mean for the Nuchatlaht?

When it was no longer possible to live on Nootka Island, Nuchatlaht members moved to reserves on Vancouver Island near Zeballos. Of the approximately 170 members, the majority now live off-reserve.

Michael said a win in the courts would allow the First Nation to start addressing some of their housing and social problems.

“We are all jammed on a little reservation, kind of like living in a third world country. The possibilities that are about to unfold, are just going to create a lot of opportunities for us,” he said.

Nootka Island was once a magnificent archaeological site with ancient cedar trees, many of which were culturally modified, and it has since been completely vandalized, Woodward said.

“It’s as if someone went to Athens and went up to the Parthenon and decided to use it to make marble countertops,” he said.

“Our argument is really very simple: that Indigenous people, like all Canadians, have to have the right to inherit the wealth of their grandparents. …  That right was cut off by government actions in the last decades and that is what we are going to fix in this court case,” he said. 

Western Forest Products, which is named as a defendant in the case, holds the major forest  licence on Nootka Island, but a declaration of Aboriginal title would negate the provincial Forest Act, and the licences it grants. And it would leave Nuchatlaht to decide how to manage their land, Woodward said.

The forestry company’s spokesperson Babita Khunkhun said the company could not comment as the case is a “pending legal matter.”

One of the main differences between the Tsilhqot’in and Nuchatlaht cases is that Nootka Sound’s coastal forest has greater economic value than what was at stake in the Tsilhqot’in claim. It is not known whether the province would have to buy out forest licensees if the Nuchatlaht case is successful and if, as the Supreme Court of Canada found in the Tsilhqot’in case, the Forest Act ceases to apply to those lands.

Little anticipates that a win will give the Nuchatlaht a chance to start healing the land.

Even with only 20 per cent of the land left unlogged, local management and local ownership will make a difference, he said.

“We have to stop somewhere and start helping good Mother Earth to recover. We can’t just keep taking and taking. We’re looking for solutions,” he said.

“Salmon depend on water and land. We can’t cut all the trees and expect the salmon to survive. We need healthy waters and healthy fish and healthy people,” he said.

Are neighbouring nations supporting the Nuchatlaht?

The province’s legal response to the Nuchatlaht claim says the government is concerned about possible overlapping title claims with the Ehattesaht and Mowachaht-Muchalaht First Nations, but Woodward said the nation’s claim ensures that it does not include any areas with overlapping claims.

“What distinguishes this case is the very careful way that Nuchatlaht have exercised restraint by not making a claim for any areas claimed by another First Nation,” Woodward said.

Irregularities in the claim area are where Nuchatlaht have deliberately pulled back to avoid any overlap, he said.

Ehattesaht and Mowachaht-Muchalaht confirmed to The Narwhal that they support the Nuchatlaht claim and there are no problems with overlap.

Ehattesaht Councillor Ernie Smith said the First Nation is 100 per cent supportive of the Nuchatlaht title claim.

“They are my relatives,” he told The Narwhal.

“We are all basically the same people, the same family. We totally support them and hope they win their case. We don’t have any territory on Nootka Island. Because we’re so close we have areas that we were allowed to go to, but we’re not claiming any of their territory,” he said.

In times past the nations gathered together for strength and power which is why there were many intermarriages, Smith said.

“And that is why we have survived to today,” he said.

Could the Nuchatlaht case help smooth the way for future Indigenous title litigation?

The slow pace of getting the case to court has been a frustration for Nuchatlaht and for Woodward, who has accused the province of deliberately dragging its feet. 

“I have always agitated to make it shorter,” Woodward said.

“All of the delay has been caused by the resistance by the provincial government. Canada is being more or less passive and British Columbia is just making it more expensive and more difficult,” he said.

Woodward said he is surprised that the victorious Tsilhqot’in case did not encourage more B.C. First Nations to bring forward title claims on their unceded territories. But he added that in his experience, First Nations are usually more interested in a negotiated solution than in a long, expensive court case.

However, as legal proceedings are smoothed out, more nations may be encouraged to take that route, he said. The Tsilhqot’in case took 25 years to work its way through the courts with a trial that spanned 339 days and cost roughly $27 million.

Woodward said his aim is to complete the Nuchatlaht case in 10 per cent of the time and 10 per cent of the cost of the Tsilhqot’in case and for subsequent cases to be increasingly efficient. 

Friends of Nuchatlaht, a supporter group, has raised almost $30,000 through crowdfunding to be used to help fund the court case.

A rally in support of Nuchatlaht is planned for 8:30 a.m. on March 21 at the Nelson Street entrance of the B.C. Supreme Court in Vancouver.

Updated March 17, 2022, at 3:47 p.m. PT: This article’s deck head was updated to note the B.C. Supreme Court is one of the province’s highest courts and not the highest court as previously stated. B.C.’s highest court is the B.C. Court of Appeals.