A lawyer for the British Columbia government says it admits members of the Nuchatlaht First Nation are descended from a historical Indigenous collective, but the lineage through a family of chiefs doesn’t establish Aboriginal title to an area its claiming.
Jeff Echols told a B.C. Supreme Court trial on Tuesday that the government disputes the First Nation’s claim to 230 square kilometres of land on Nootka Island, off Vancouver Island’s west coast.
Echols said the “modern-day” Nuchatlaht draws its membership from a broader base of Indigenous Peoples, and the province plans to present evidence showing the First Nation wasn’t alone in using the island when the Crown asserted sovereignty over what’s now B.C.
He told the court that case law has established that Aboriginal title is not transferable. The legal test would not allow the modern Nuchatlaht to take on the title of other historical Indigenous groups whose members joined or merged with them, he said.
The Nuchatlaht Nation, which has about 160 members, claims the B.C. and federal governments have denied their rights by “effectively dispossessing” them of the land. The lawsuit asks for a declaration that recognizes their title and puts a stop to logging.
Jack Woodward, a lawyer for the nation, told the court on Monday that expert evidence shows the Nuchatlaht were organized into a confederacy of sorts, with a number of groups who shared a summertime gathering place in the claim area.
The claim meets the test for Aboriginal title set out in the Supreme Court of Canada’s landmark Tsilhqot’in decision in 2014, he said. That case recognized Tsilhqot’in rights and title over a large section of their traditional territory in B.C.’s Interior.
A lawyer for Western Forest Products, which is named as a defendant in the lawsuit, told the court on Tuesday that the logging company takes no position on whether the Nuchatlaht have Aboriginal title on Nootka Island. But Geoff Plant urged the court to consider how a declaration recognizing the nation’s rights and title would affect third parties.
Western Forest Products has provincially approved logging tenures in the claim area. Plant said the lawsuit, as it’s structured, is “incapable of fully addressing the rights of third parties and the public interest.”
If Nuchatlaht rights and title over the area are proven, Plant said the best way to achieve reconciliation would be for the court to suspend making any declaration to allow time for his client’s interests to be taken into account.
A lawyer for the federal government said Tuesday it intends to “maintain a minimal role, given that there is no relief sought against the federal Crown.”
Brenna Owen/The Canadian Press