Recently I had the experience of sitting in on a First Nations land claims case in the B.C. Supreme Court, specifically that of the Nuchatlaht people who are one of the Nuu-chah-nulth (formerly called Nootka) communities on the west coast of Vancouver Island. It was a session for the lawyers on both sides to clarify a few key points for the judge and it provided me with some insight into the tortuous, overly complicated, process the Indigenous people have to go through to prove the obvious.
In order to meet the standards of the Supreme Court of Canada for claiming Aboriginal title to the land, the Nuchatlaht have to prove they occupied the land exclusively since 1846, which is the magic year that Britain claimed sovereignty after signing the Oregon Treaty with the United States that settled the last part of the boundary dispute between them. Never mind that the Nuchatlaht people were already living there when Captain Cook visited the area in 1778 and sailed into what he thought was called Nootka Sound and, quite by accident, ended up starting a fur trade in sea otter pelts with China as a result of trading with them. The Spanish had already been there in 1774 to assert their Pacific Northwest claim under the Doctrine of Discovery but, to avoid warfare between Britain and Spain, the Nootka Convention in 1790 provided for both countries to share in the settlement of the Pacific coastline that Captain George Vancouver mapped between 1792-1794. Notice that neither Britain or Spain had to prove they occupied the land in order to claim it, but I digress.
The Russians also tried to get into the land claiming/fur trading act and, while they controlled most of the coast of what is now Alaska, they tried to expand further south but in 1824 they settled with the U.S. that their territory would end at the 54:40 latitude. South of Alaska, however, the coast was open to free trade and there was fierce competition between the British and Americans. The headquarters of the Hudson's Bay Company (HBC) was Fort Vancouver, built in 1824 on the Columbia River opposite the mouth of the Williamette River. To strengthen its coastal trade and drive away the American traders, HBC built a series of fortified trading posts, the first of which was Fort Langley, established in 1827 on the Fraser River about 50 km from the river's mouth followed by Fort Simpson (1831), Fort McLoughlin (1833), Fort Stikine (1840), Fort Durham (1840), and Fort Victoria (1843). In 1846 the Oregon Treaty extended the border between Britain and the U.S. along the 49th parallel from the Rockies to the Pacific ceding Oregon Country to the U.S. but giving all of Vancouver Island to Britain. With Fort Vancouver now in American territory it was no longer profitable to operate so HBC closed it down and moved its operations to Fort Victoria. In 1849 Vancouver Island and the surrounding Gulf Islands were made into a colony and put under the administration of HBC and the Governor James Douglas. It wasn't until 1858 (following the 1856 Fraser Canyon Gold Rush) that the mainland was added to Vancouver Island and made into the Crown colony of British Columbia with Douglas assigned as its first Governor.
Until Vancouver Island and the mainland became a colony, the Indigenous people were free to live as they always had with no restrictions on the resources of the land and water they used. With Britain now claiming sovereignty over the land, Aboriginal title had to be addressed, as per the requirements of the 1763 Royal Proclamation, before these lands could be settled or otherwise exploited. In order to establish settlements on Vancouver Island Douglas negotiated a few small treaties and also set aside some land as reserves for the Indigenous people but these were reduced or eliminated in 1867 by the Commissioner of Lands, Joseph Trutch, who went on to become the Province's first Lieutenant Governor after it joined Confederation in 1871. Under the terms of the Union, trusteeship of land for First Nations was supposed to be a Federal responsibility with land provided by the Province. But the Province refused to recognize Aboriginal title, so no treaties were signed that would have transferred title in exchange for reserves as had been done in every other Province and, as a result, B.C. became the only Province to join Canada on unceded land. It's also worth noting that in 1871 the ethnic makeup of B.C. was 25,660 Indigenous, 8,500 white, 1,500 Chinese, and 500 Black residents but in 1872 a law was passed that prohibited Indigenous and Chinese people from voting in Provincial elections.
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.