Case Brief: The Nuchatlaht v. British Columbia, 2023 BCSC 804
By Christopher Devlin and Lorenzo Rose
On May 12, 2023, the British Columbia Supreme Court released its decision in The Nuchatlaht v. British Columbia, 2023 BCSC 804.
What this case is about
The Nuchatlaht brought a claim to Aboriginal title to a land-based territory of 201 square kilometres on the east side of Vancouver Island. They relied solely on the historical, ethnohistorical and archaeological record to prove their claim and did not adduce any oral history evidence.
For the purpose of the west coast of Vancouver Island, the BC Supreme Court held that 1846 was the appropriate date for the establishment of Crown sovereignty for the purpose of the legal test to prove Aboriginal title.
The Court also held that, with respect to Nuu-chah-nulth culture, the amalgamation of local groups into larger groups prior to the establishment of Crown sovereignty did not defeat a claim to Aboriginal title to the territory by each group prior to amalgamation.
However, the Court held that territorial boundaries do not, of themselves, prove sufficient occupation of all the territory within those boundaries. While the Nuu-chah-nulth peoples had heightened sense of ownership, the Nuchatlaht were primarily coastal people. The evidence was insufficient to establish sufficient occupation or effective control over the inland areas within the territory claimed.
The Court effectively dismissed the claim to the entire territory but allowed the Nuchatlaht 14 days to decide whether to continue the trial by amending its pleadings to seek declarations to smaller, specific areas within the territory where there was evidence of sufficient occupation to establish Aboriginal title.
Why this case is important
The Nuchatlaht’s case foundered on a failure to prove sufficient occupation of the entire claim area as of 1846, by relying on a boundary line noted by anthropologist Phillip Drucker, along with evidence of Nuu-chah-nulth legal concepts such as hahaułi, to prove sufficiency of occupation. The Nuchatlaht had not attempted to prove actual use of any particular areas. As a result the Court was unable to determine to what areas the Aboriginal title claim may succeed in and declined to make any declaration.
The Court also noted that the current test for Aboriginal title is not well-suited to maritime-oriented people. Given the marine orientation of the culture, the Court inferred there will probably not be trails between one coastal location and another as the means of transport was primarily by canoe. Unhelpfully, perhaps, the Court left that problem for a higher court to resolve.
This decision may be illustrative of how the nature of evidence carries a case, and the absence of evidence sink a case. The decision may also breathe new life into the “postage stamp” theory to Aboriginal title so favoured by British Columbia until the Supreme Court of Canada decision in Tsilhqot’in. Unless the Nuchatlaht return to trial to seek declarations of Aboriginal title over areas where they have adduced evidence of sufficient occupation prior to 1846, or until this decision is overturned or modified on appeal, it may represent a significant set back to Aboriginal title claims for all coastal Nations, and to Nuu-chah-nulth Nations in particular.
The full decision can be found here https://www.bccourts.ca/jdb-txt/sc/23/08/2023BCSC0804.pdf