Historic land title case is about reconciliation and justice, lawyer for First Nation says

A lawyer for a tiny First Nation in B.C. kicked off the opening day of a historic Aboriginal land title trial Monday by calling on the judge overseeing the case to give his clients the justice they have been denied for centuries.

Jack Woodward told B.C. Supreme Court Justice Elliott Myers that even the Crown's experts agree the ancestors of the Nuchatlaht First Nation have been living off the west coast of Vancouver Island since at least the late 1700s.

Woodward said the questions the judge has to decide are as much about how to reconcile Aboriginal and non-Aboriginal Canadians as they are about the details of a dispute over a 200-square-kilometre piece of land.

"The function of this court is reconciliation," Woodward said during his opening submissions.

"By the end of this trial, we have a huge intellectual project ahead of us. This case is not about the facts. This case is about grappling with these difficult legal concepts and doing justice for my clients."

'Mischief-making on the part of the province'

The Nuchatlaht are seeking Aboriginal title over an area of Crown land 300 kilometres northwest of Victoria, mostly made up of Nootka Island and much of the surrounding coastline.

The First Nation is the first to make a claim according to the terms of a groundbreaking three-part test set by the Supreme Court of Canada in 2014 to establish Aboriginal title.

To meet that standard, the Nuchatlaht must prove they occupied the land exclusively in 1846 — when the British claimed sovereignty through a treaty resulting in the present-day boundary between Canada and the United States.

Woodward told the judge his clients have done everything they can to make their application for title as legally simple as possible — excluding private land or anything that might conflict with federal interests like lighthouses.

The lawyer accused the province of falsely suggesting that the Nuchatlaht are trying to lay stake to territory claimed by other Indigenous groups. 

Woodward said the claim was drawn up with the express goal of avoiding any overlap.

"The [Nuchatlaht] have carefully chosen a claim area that avoids any conflict with neighbouring tribes," he said.

"By the end of the case and upon hearing the relevant legal principles, the court will find that any attempt to stir up the spectre of a dispute with neighbours is mischief-making on the part of the province."

Lawyers for the province have yet to make their arguments in court.

In documents filed in response to the claim, the Crown alleges that prior to the time the British asserted sovereignty over the area the First Nation are claiming, the Nuchatlaht were a "relatively small and relatively weak association of groups" that had been "displaced from areas outside the claim area by other Indigenous peoples."

"There are not now and for many years there have not been Nuchatlaht resident communities in the claim area," the response reads.

Evidence land was cultivated

The trial is expected to last at least 59 days.

Woodward said the proceedings will include testimony from a variety of expert witnesses who can speak to the history and cultural makeup of the Nuchatlaht.

He said the trial will hear from an ethnobotanist whose groundbreaking research will contradict Eurocentric stereotypes that paint Indigenous people as strictly hunters and gatherers.

"She has found places in the claim area that show that human beings cultivated the land in order to grow species of plants that were useful," Woodward told the judge.

To that end, the lawyer said the expert had found evidence that the Nuchatlaht grew crabapples.

Woodward claimed that the Crown and the Nuchatlaht agree on many elements of the dispute — starting with the fact that the First Nation was in possession of the claim area in 1846.

He suggested there was enough common ground for Myers to make a declaration of Aboriginal title already — without declaring any boundaries, leaving it to both parties to negotiate the limits of the claim.

The judge declined.

The Nuchatlaht case also promises to be significant because it's the first to come to court since the province passed legislation in 2019 to align its laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Article 26 of the declaration specifically states that "Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired."

Experts say it is uncertain how the commitment to UNDRIP will play into the province's arguments and the judge's considerations.