Overview
On May 11, 2023, the BC Supreme Court issued reasons for judgment in an Aboriginal title claim brought by the Nuchatlaht, a Nuu-chah-nulth people. In the claim, the Nuchatlaht sought a declaration of Aboriginal title to 201 square kilometres of land on Nootka Island, on the west coast of Vancouver Island. Importantly, like the Tsilhqot’in case, this claim was not contested by any of the First Nations neighbouring the Nuchatlaht. The scope of the claim did not include title to the foreshore or seabed, or to activity-based Aboriginal rights such as fishing rights. (The Nuchatlaht were a plaintiff in the Ahousaht Aboriginal fishing rights litigation though their claim did not go to trial due to complications arising from the overlapping claim of the Ehattesaht.) In part due to the narrow scope of the claim, the trial of the action took 54 days, far shorter than any other Aboriginal title claim heard since Calder.
Photo credit: Doane Gregory
The Nuchatlaht sought to prove title based on occupation of the claim area at the time of assertion of Crown sovereignty, as opposed to relying on present occupation of the claim area as a proxy for evidence of historical occupation. The Nuchatlaht framed its case as a territorial claim, relying on what it says are the recognized boundaries of its territory. The Nuchatlaht relied exclusively on documentary and expert evidence, including its two expert witnesses, anthropologist and archaeologist John Dewhirst and archaeologist Jacob Earnshaw. The Nuchatlaht led no oral history evidence or other evidence from community members.
Canada took no position on the claim, adduced no evidence, and made only brief submissions. BC contested the claim, denying that the Nuchatlaht have Aboriginal title to the claim area. BC called three expert witnesses to support its defence, anthropologist Dr. Dorothy Kennedy, anthropologist Dr. Joan Lovisek, and archaeologist Morley Eldridge.
In the result, the court did not issue a declaration of Aboriginal title, finding that the evidence did not establish sufficient occupation of the entire claim area to meet the test for Aboriginal title. The court, however, left the door open to the Nuchatlaht to pursue a declaration of Aboriginal title to one or more smaller areas within the claim area.
Photo credit: Doane Gregory
Date of the Assertion of Crown Sovereignty
To establish Aboriginal title, the claimant must prove exclusive occupation of land at the time that the Crown asserted sovereignty over the land. In previous Aboriginal title claims to land in what is now British Columbia, courts have held that the British Crown asserted sovereignty over the territory upon the making of the Oregon Boundary Treaty in 1846, by which Britain and the United States divided the territory west of the Rockies between them. In this case, BC took the position that the date of Crown sovereignty “could be as early as 1790”, without advocating for a specific date. The Nuchatlaht accepted the established date of asserted Crown sovereignty 1846.
The court held that the Crown established sovereignty over what is now British Columbia upon the making of the Oregon Boundary Treaty in 1846. The court held that while courts use the phrase “assertion of sovereignty”, the critical event is not the assertion of sovereignty but the “actual establishment of sovereignty.” The court did not explain how the Oregon Boundary Treaty established Crown sovereignty. At the time that treaty was made, there were very few treaties in place between the Crown and Indigenous Peoples, living in their territories in organized societies under their own laws, about whom the Oregon Boundary Treaty is silent. It is unclear how the Oregon Boundary Treaty could establish (as opposed to assert) sovereignty over Indigenous Peoples in what is now British Columbia.
The Rights Holder
One of the critical questions in an Aboriginal title claim is the identity of the rights holder, which is the question of the identity of the modern-day group or collective that is the successor of the historical group that held Aboriginal title at the time of the assertion of Crown sovereignty. In this case, the evidence indicated that, in 1846, the Nuchatlaht were a confederacy or alliance comprised of several local groups with separate villages. The court held that, in Nuchatlaht society in 1846, land was held by the chief of each village on behalf of the local group. BC argued that these local groups, which have since been absorbed into the modern-day Nuchatlaht collective and no longer exist as distinct entities, are the proper holder of any Aboriginal title. BC also argued that some local groups joined the historical Nuchatlaht after 1846, and so their area of occupation could not be included in the Nuchatlaht claim. The Nuchatlaht asserted that the modern-day Nuchatlaht collective is the proper Aboriginal title holder.
The court held the Nuchatlaht to be the proper modern-day rights holder. Notwithstanding the finding that the Nuchatlaht was not a “political unit” in 1846, the court held that the larger Nuchatlaht group was the historical rights holder. The court also found that the Nuchatlaht’s claim can include the territory of local groups which merged with the Nuchatlaht after 1846, referring to the Nuchatlaht’s own perspective that the local groups have been “subsumed” by the present-day Nuchatlaht. This conclusion was based in part on the perspective of the Nuchatlaht and in part on the logic that, implicit in the recognition under Canadian law that joint Aboriginal title can exist based on shared exclusive possession, is the proposition that multiple groups can collectively hold Aboriginal title. The court held that the modern Nuchatlaht are sufficiently connected to the historical Nuchatlaht collective to be the contemporary rights holder.
Though not argued by the parties, the court relied in part on article 3 of the United Nations Declaration on the Rights of Indigenous Peoples, which provides that Indigenous Peoples have the right to self-determination, which incudes the right to determine their political status. The court noted that the UN Declaration is “incorporated into the province’s laws.”
Occupation of Land
The key issue in this case was whether the Nuchatlaht’s occupation of the claim area in 1846 was sufficient to establish Aboriginal title under Canadian law. To establish Aboriginal title under Canadian law, a claimant group must prove that its occupation of the claim area at the time of the assertion of sovereignty was “sufficient.” While physical occupation is required, the question of what kind of occupation is sufficient is a contextual question that depends in part upon the way of life of the claimant group. Whether the evidence of occupation of the claim area by the claimant group is “sufficient” to establish Aboriginal title, is a question of fact on which the trial judge retains a broad discretion.
The Nuchatlaht argued that it could prove occupation of the claim area based on evidence that the claim area was within Nuchatlaht territory rather than evidence of use and occupation of specific lands within the claim area. The only evidence of the boundaries of Nuchatlaht territory before the court, however, was a map by Dr. Phillip Drucker published in 1953, the late American anthropologist and archaeologist, which John Dewhirst, the anthropologist expert witness called by the Nuchatlaht, relied on without additional research. The court held that a territorial boundary, even if recognized by other Indigenous groups, is not enough to prove sufficient occupation of land. In the court’s view, there must be evidence of “a strong presence over the land.” In addition, the court held that the Drucker map did not distinguish between areas subject to Nuchatlaht Aboriginal title and areas within which the Nuchatlaht have other Aboriginal rights.
The Nuchatlaht also led evidence of physical occupation within portions of the claim area. In 1846, Nuchatlaht villages were all located on the coast. The Nuchatlaht sought to prove title to interior areas in part through evidence of culturally modified trees (CMTs). The court held that the CMT evidence was of little assistance in proving occupation of the interior of the claim area because there was only one recognized CMT site in the interior at which only 6 of the 71 CMTs pre-dated 1846. While the Nuchatlaht’s expert on CMTs, archaeologist Jacob Earnshaw, identified other CMT sites, the court found this evidence to be of little assistance because the witness did not secure permits for the work and the dating analysis offered was unreliable. The court observed that most of the CMT samples post-dated 1846 and it was uncertain whether the CMTs were made by the Nuchatlaht or other peoples. Other archeological evidence, such as evidence of middens and burials, was also of little help, in the court’s view, because of uncertainty as to which people were responsible for each site, and because the sites were mostly located at villages or camps along the coast, where evidence of Nuchatlaht occupation was strong.
The court held that it could not find sufficient occupation of the whole claim area based on the evidence. In the court’s view, there was very little evidence of occupation of the interior of the claim area and many “gaps” in the evidence of use and occupation of land along the coast, in part because there was no evidence of Nuchatlaht use of the marine environment because that was beyond the scope of the title claim to land.
The court suggested that the evidence of Nuchatlaht use of the local village settlements and camps in 1846 would be sufficient to establish title to those areas but observed that most of those lands are now Indian Act reservesand they are largely concentrated in one portion of the claim area, the west side of the peninsula between Esperanza and Nuchatlitz Inlets (see the map at para. 454 of the reasons). The court accepted that some CMT sites, all but one of which were located near historical, undisputed Nuchatlaht settlements, were evidence of Nuchatlaht occupation of those areas in 1846.
Disposition
While the court did not make a declaration of Aboriginal title, the court observed, “There may be areas of sufficient occupation or use that are near the reserves or fee simple land [i.e. located near historical Nuchatlaht settlements] over which the plaintiff may be able to establish its claim to Aboriginal title.” The court held that it was unable to make findings regarding these areas because that was not the way in which the case was presented but the court invited the Nuchatlaht to advise the court if it wished to seek a declaration of title to smaller areas within the claim area. If so, the court noted that additional hearing time would be required to determine whether and how that claim would be considered by the court.
The court observed that the test for Aboriginal title may not be suited to the circumstances of a coastal people whose culture is oriented toward the marine environment but held that whether and how the test should be adapted to the circumstances of coastal claimants is a matter for a higher court to address.
Implications of the Decision
Self-determination and the proper rights holder
The court’s holding that the Nuchatlaht is the proper rights-holder even though, in 1846, under Nuchatlaht law, lands and resources were held at the local level, is significant both for the Nuchatlaht and for other Indigenous Peoples. In pre-contact Indigenous societies in what is now British Columbia, it was not uncommon for land and resource rights to be held at the local level. The court suggested that if Aboriginal title is historically held at the local level, proof of title would be much more difficult, in part because of the complexity of modern communities having to trace genealogical connections to each of the local groups in existence in 1846 that now comprise the modern rights-holding community. Importantly, the court held that it didn’t matter if local groups joined the modern collective before or after 1846. The way in which the court approached this issue in the Nuchatlaht case avoids that difficult problem and recognizes that the question of the proper rights holding collective is fundamentally a question of self-determination.
A heavy evidentiary burden
Ultimately, the Nuchatlaht claim failed because the court held both the quantity and the quality of the evidence to be insufficient. The court found fault with both of Nuchatlaht’s experts. The court was critical of Mr. Dewhirst for reaching conclusions without a firm basis in the evidence, for ignoring key evidence, and for inconsistencies in his opinion. While not accepting all of their opinions, the court generally preferred the opinions of BC’s expert Dr. Kennedy. The court was also critical of Mr. Earnshaw for his failure to follow standard practices, including his failure to secure permits for his work.
This case suggests that there are risks in pursing a territorial claim based on recognized territorial boundaries without also providing evidence of use and occupancy throughout the territory (such as evidence of hunting, gathering, harvesting, ceremonial use, etc.)
The outcome in this case may also indicate the peril of seeking to prove Aboriginal title without direct evidence from members of the claimant group. While expert witnesses and legal counsel can do much to present a claimant’s case, they are no substitute for the voices of the people from the community, who are able to provide an Aboriginal perspective grounded in oral history and lived experience, as opposed to through anthropological evidence. That said, it is impossible to know whether and how this would have changed the result in the case without knowing what evidence from Nuchatlaht people was available or how the court would have received that evidence.
The future of limited scope claims
In this case, the Nuchatlaht pursued a strategy of narrowing the scope of the claim in the hope of making the evidentiary burden manageable. While the decision not to adduce evidence of Nuchatlaht use and occupation of the marine environment made the evidentiary burden more manageable, it seems to have undermined the Nuchatlaht’s case by preventing the court from obtaining a more complete picture of Nuchatlaht culture and way of life in 1846.
The Tsilhqot’in decision demonstrated that Aboriginal title to the territory of a people who lived a semi-nomadic life at the time of the assertion of Crown sovereignty can be established. The circumstances of that case, however, including that the claimants had the benefit of an advance costs order, which they used to support the collection and marshalling of an extraordinary amount of evidence, are not easily replicated. Since that case, many have wondered whether Aboriginal title can be established in a way that is manageable for a community without an advance costs order or extraordinary financial resources. While a single case does not provide a final answer to that question, the result in the Nuchatlaht case strikes a note of caution.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.