The 1997 landmark Delgamuukw trial ruled for the first time that Aboriginal title did in fact exist in B.C. and it also accepted that Indigenous oral history is valid evidence in court and must be given equal weight as written documents. Aboriginal title is a right to the land itself, not just the right to hunt and fish, and when dealing with Crown land the government must consult with First Nations people and may have to compensate them if their rights are infringed. Infringements can include the development of agriculture, mining, forestry, and hydro-electric power. However, to determine proof of Aboriginal title it must be demonstrated the land was exclusively occupied prior to sovereignty and that the occupation has been continuous from then until now.
The 2014 Tsilhqot'in trial went even further in clarifying Aboriginal title. While asserting that Aboriginal title constitutes a beneficial interest in the land the underlying control is still retained by the Crown. Aboriginal title includes the right to decide how the land will be used, to enjoy, occupy and possess the land, and to proactively use and manage the land but the Crown can override Aboriginal title if they have carried out sufficient consultation and accommodation, there is a compelling and substantial objective, and the Crown's action are consistent with its fiduciary obligation to the Aboriginal body in question.
In 2019 the B.C. government passed the Declaration on the Rights of Indigenous Peoples Act into law which is meant to align B.C. laws with the United Nations Declaration on the Rights of Indigenous Peoples which states "Indigenous Peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired." It is also part of the Province's framework for reconciliation as called for by the Truth and Reconciliation Commission's "Calls to Action" and their supposed new approach to litigation which is supposed to lead to more negotiated settlements and less legal action.
So with all the precedent setting legal cases spelling out that Aboriginal title is real and how to claim it, and with the Province finally on board with First Nations reconciliation, you would think this should be a slam dunk for the Nuchatlaht people. Not so. First off, for some reason nobody at the Attorney General's office bothered to tell the Crown attorney that fighting this claim was not something they should be wasting their time with. But the first thing the Crown attorney said was that nobody was living on Nootka Island which is where the bulk of their claim is. The Nuchatlaht had to then point out that clear cut logging and destruction of salmon streams made the Island uninhabitable. In other words they were forced off the Island without compensation. To prove they were there in 1846, after Captain Cook had long since left, they pointed to culturally modified trees, shell middens, forest gardens, and other evidence of human habitation that are still visible. The total claimed area is only 200 square kilometres and there are no conflicting or overlapping claims from anyone else, but the Crown is determined to contest things.
In the meantime, while we all wait for a verdict, Themis, the Goddess of Justice, waits outside the courtroom, blindfolded and holding the scales of justice, impervious to all the injustice that has gone on for so long. Will this be another landmark case in favour of First Nations people or will it be another excuse to deny them what is rightfully theirs? We will soon find out.
On May 12th, 2023 a B.C. Supreme Court judge issued his ruling and said the Nuchatlaht First Nation did not prove it had rights to the entire claim area. Because they are a coastal group primarily using canoes to get around and haven't established any trails between locations they don't meet the current test for Aboriginal title. As a result the test may need to be reconsidered but this has to be done by a higher court. In the meantime they can try to finalize some of the claim area. The Nuchatlaht have said they will work with the court to identify locations of their claim and appeal the decision to not grant title over the larger area.