Nuchatlaht granted partial land title on Nootka Island

The Nuchatlaht First Nation won a partial victory in B.C. Supreme Court last week in a long-standing dispute with the provincial government over its land claims over Nootka Island.

The victory means the nation now has Aboriginal title over 11.33 square kilometres of land located off the west coast of Vancouver Island, which represents around five per cent of the land claimed by the nation.

It is only the second time B.C. courts have granted a First Nation Aboriginal title, meaning the Nuchatlaht will have full economic benefit of the land.

The last time a court awarded Aboriginal title was in 2014, when the Tsilhqot'in First Nation was granted 1,700 square kilometres of land in central B.C.

Despite the Nuchatlaht's partial victory, a lawyer for the nation says they plan to appeal to a higher court to press their claims over the full 201 square kilometres of land on Nootka Island and some surrounding islands.

This map depicts the traditional lands claimed by the Nuchatlaht First Nation on the west coast of Vancouver Island as part of a lawsuit for Aboriginal title. (CBC News)

"To get through the door, to actually get a declaration of Aboriginal title, there were multiple difficulties that have to be overcome," said lawyer Jack Woodward.

"And ... having, sort of, beaten our way through all of those hurdles — to get to the point about how much [land is awarded] is a major victory."

Woodward says Aboriginal title means the nation will have beneficial ownership of the land, which means the Crown and the province will have very limited authority over what goes on there.

Nuchatlaht First Nation Elder and Councillor Archie Little, centre, and Tyee Ha'with (Chief) Jordan Michael, far left, stand with supporters outside B.C. Supreme Court before the start of their Indigenous land title case in 2022. (Darryl Dyck/The Canadian Press)

The decision now places a greater burden on governments to justify economic development on First Nations land, but provincial law would still apply to the land, subject to constitutional limits.

"We would be going to the British Columbia Court of Appeal on certain points of principle," Woodward said. "If they're resolved in our favour, they would result in a larger [land] declaration."

Woodward says the First Nation is now in the process of drawing up a formal order to authorize the Aboriginal title that it was awarded.

A spokesperson for the provincial attorney general said the government is reviewing the decision and considering its implications.

"Throughout the litigation the province has remained open to a dialogue outside the courts, but respects the Nuchatlaht's choice to pursue their interests through litigation as they see fit," the spokesperson wrote in a statement.

"As this is a matter remains before the courts, we are unable to comment further at this time."

A statement from the Nuchatlaht First Nation says the land is estimated to be worth up to $300 million.

"We are celebrating this victory and looking ahead for the future of our nation," said Tyee Ha'wiih (Chief) Jordan Michael in the statement. "There is still much that needs to be done to restore our land and heal our people."

Long-running case

The partial victory is just the latest step in a long-running land claims case that has wound its way through the courts since 2017, in which the nation argued that the B.C. and federal governments denied Nuchatlaht rights by authorizing logging and "effectively dispossessing" the nation of territory.

Last year, Supreme Court Justice Elliott Myers found the Nuchatlaht had established rights to certain portions of its claimed land, but not all of them.

He had said another hearing would be required to determine what those portions were, which was the subject of last week's judgment.

The Nuchatlaht First Nation had previously argued that they had moved to a village on Nootka Island in the 1780s, and occupied the area in 1846 when the Crown resolved boundary disputes with the United States and claimed sovereignty over what is now British Columbia.

In the latest hearing, one of the nation's arguments was that it held claims to watersheds based on a historic case that defined the boundaries of Labrador in 1927, before the region entered Confederation, and that it held claims based on international law.

However, much like his judgment last year, Myers said he could not determine Aboriginal law based on a principle of international law, and said it would be up to a higher court to determine those factors.

Jack Woodward, representing the Nuchatlaht First Nation, says last week's partial victory is historic in nature. (Tristan Le Rudulier/CBC)

Woodward said the nation's partial victory was the first land claim to be heard since B.C. passed legislation in 2019 to align its laws with the United Nations Declaration on the Rights of Indigenous Peoples, and he thinks other First Nations may follow suit.

"British Columbia is the place where the claims of the Indian nations were disregarded 150 years ago," he said. "That has been a festering problem for 150 years.

"What's the solution to that problem? Well, we now know what the solution is. The solution is you can get a judge of the British Columbia Supreme Court to declare that a First Nation has Aboriginal title."