B.C. First Nation’s land rights claim is about reconciliation, lawyer tells court

VANCOUVER — The lead lawyer in an Indigenous rights and title lawsuit used the words of British explorer Capt. James Cook in his opening arguments to prove the Nuchatlaht Nation’s claim to its territory on the west coast of Vancouver Island.

Jack Woodward said that when Cook encountered Nuchatlaht people in the 1770s, he wrote in his journal that he had “nowhere met with Indians who had such high notions of everything the country produced being their exclusive property as these.”

Woodward told the B.C. Supreme Court hearing on Monday that the legal action is about reconciliation between the nation and the Crown.

The nation wants the court to force the federal and provincial governments to recognize Nuchatlaht rights and title and put a stop to logging in the area it is claiming.

Aboriginal title was created through the merger of Indigenous and British legal systems in 1846, when the Crown resolved boundary disputes with the United States and claimed sovereignty over what’s now B.C., Woodward said.

“This is about finding that merger between Indigenous land law and the British, now Canadian, legal system,” he said of the Nuchatlaht lawsuit filed in 2017.

The claim asserts that the provincial and federal governments have denied Nuchatlaht rights by authorizing logging and “effectively dispossessing” the nation of about 230 square kilometres spanning the northwestern part of Nootka Island.

Woodward said the legal basis for claim is the test for Aboriginal title set out in the Supreme Court of Canada’s precedent-setting Tsilhqot’in decision in 2014.

That case recognized the Tsilhqot’in Nation’s rights and title over a swath of its traditional territory in B.C.’s central Interior, not only to historic village sites.

Woodward, who also represented the Tsilhqot’in in their claim, told Justice Elliott Myersthat the Nuchatlaht Nation meets the test for Aboriginal title.

Evidence from experts on both sides of the lawsuit agree Nuchatlaht people were occupying and using the claim area before and during 1846, he said.

The area claimed by the First Nation avoids any potential conflict with neighbouring nations, Woodward said.

The nation’s chief at the time the lawsuit was filed said that the Nuchatlaht spent many frustrating years at the treaty table and working through other government processes trying to protect its lands and the health of its people.

Lawyers for the B.C. and federal governments and logging firm Western Forest Products, another defendant, were expected to address the court later this week.

In a response to the claim, filed in 2017, the province denies that the Nuchatlaht hold Aboriginal title over the claim area. B.C. has met its obligations under agreements with the nation related to the forest resources, it said.

The response also asserts that the Nuchatlaht were composed of “loosely affiliated, small, localized family groups” who did not occupy the claim area exclusively.

In addition to citing Cook’s journal entry, Woodward told the court that evidence shows the Nuchatlaht were organized into a confederacy of sorts, comprising a number of groups who shared a summertime gathering place.

He used the example of the small European country of Luxembourg to underscore his argument that a nation’s size would not invalidate its claim to Aboriginal title under Canadian law.

Several dozen people, including members of the Nuchatlaht First Nation, gathered outside the courthouse in Vancouver Monday to mark the start of the trial, which is expected to last several weeks.

The land claim is the first to be heard since B.C. passed legislation in 2019 to align its laws with the United Nations Declaration on the Rights of Indigenous Peoples.

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