On April 2, 2026, the British Columbia Court of Appeal (the “Court”) released its decision The Nuchatlaht v British Columbia, 2026 BCCA 137. The Nuchatlaht advanced an Aboriginal title claim to approximately 200 square kilometres of Nootka Island off the west coast of Vancouver Island (the “Claim Area”). After finding that the Nuchatlaht had not established Aboriginal title to the Claim Area, the trial judge in supplementary reasons found that the Nuchatlaht had established Aboriginal title over certain coastal areas of Nootka Island. The Nuchatlaht appealed both trial judgments and were successful on appeal with the Court declaring that the Nuchatlaht have Aboriginal title over the entire Claim Area.
The Court framed this case as one that “calls upon us to consider the nature and quality of evidence that must be adduced to establish Aboriginal title to territory premised upon its occupation at the time of assertion of British Crown sovereignty” (para 1). While the conclusions are specific to the evidence adduced in this case, the decision speaks to ways in which evidence should be interpreted by courts in Aboriginal title claims. The reasons focus on the substance of the evidence and not the type of evidence adduced. The Court found that “the judge misapplied the test for sufficient occupation and made palpable and overriding errors in applying the law to the facts” (para 187).
The Court found that there was no evidentiary foundation for the trial judge’s conclusion that the entire interior of the claim area above 100 metres of elevation was a “remote inland area” as Dr. Drucker used the term in his book The Northern and Central Nootkan Tribes, a central piece of evidence in the case. Undisputed evidence showed that frequent travel occurred into the forest above 100m of elevation to harvest trees before and after Dr. Drucker conducted his fieldwork in 1935-1936.
The harvesting of trees in this case was adduced through evidence of culturally modified trees (CMTs). The Court found that the evidence of CMTs supported the conclusion that there was significant use over multiple generations of forest resources at identified sites. As found by the Court, the trial judge’s dismissal of evidence of the use of some of these sites did not display the necessary consideration of evidentiary difficulties inherent in proving occupation of land in 1846.
The Court also found that the use of forest resources after 1846 ought not to have been discounted. The use of these resources was evidence of consistent use in Nuchatlaht life, and effective control of the area at the time of the assertion of European sovereignty. The Court found eleven sites which should have been considered and were not, with modifications dated from before 1780 to 1900. These provided strong evidence of continued use of known sites and given the absence of overlapping claims to the Claim Area, those CMTs supported the Nuchatlaht’s title to the Claim Area.
The Court found that the trial judge’s acceptance of a 100-metre elevation boundary as the limit for the Nuchatlaht’s title claim was arbitrary, as it was not based on the Nuchatlaht’s manner of life, material resources, and technological abilities, or the character of the lands claimed. Leaving this limit in place would likely result in one or more hahaułi (a chief’s territory) being segmented or excluded entirely, which does not reflect the Indigenous perspective. The Court found that this was a site-specific approach to occupation, as the villages were generally below 100m, and in the nature of the postage stamp approach rejected in Tsilhqot’in.
This case, while very specific to the evidence adduced by the Nuchatlaht, provides guidance for how trial judges must consider the evidence of sufficient occupation in 1846 from the perspective of what evidence is available today to demonstrate title. This case also affirms the territorial approach in Tsilhqot’in and demonstrates that intensive use of every portion of the Claim Area is not required.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice.
See CanLII for the Reasons for Judgment.
