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  • Vancouver Island First Nation heads to court for groundbreaking title case


    Judith Lavoie
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    If the Nuchatlaht’s case is successful in BC’s Supreme Court, they will be able to take back their unceded land from forestry companies and begin its healing process.

     

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    The north end of Nootka Island. Most of the area shown is claimed by the Nuchatlaht First Nation. The area has been heavily logged, mainly by Western Forest Products and BC Timber Sales. The remaining old-growth forest is indicated by darker green (click image to enlarge).

     

    BARK AND WOOD from the towering cedars that used to cover Nootka Island, off the west coast of Vancouver Island, were used for millennia by the Nuchatlaht people to create ocean-going canoes and household items, while abundant salmon, ducks and seafood ensured that no one went hungry.

    “It’s a powerful history,” said Archie Little, Nuchatlaht house speaker, describing how, for centuries, Nuchatlaht, a nation of plenty, hosted other First Nations, with Nootka becoming a regional cultural and social centre.

     

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    Archie Little, Nuchatlaht house speaker (Photo: Nuchatlaht First Nation) 

     

    Nuchatlaht Tyee Ha’wilth (hereditary chief) Jordan Michael can trace his family history back through the centuries, with documents showing a flourishing culture and unbroken line of hereditary chiefs.

    “We were here when British Captain James Cook sailed into Nootka Sound in 1778. We were here when George Vancouver met the Spanish Captain Bodega y Quadra in 1792,” Michael wrote in an explanation of the First Nation’s history.

     

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    Nuchatlaht Tyee Ha’wilth Jordan Michael (Photo: Nuchatlaht First Nation)

     

    Fast-forward to today. Following colonization, smallpox, residential schools, provincial and federal laws that took away the land and forest licences issued to multinational companies, 80 percent of northern Nootka Island has been logged, salmon streams have been destroyed and the herring run decimated.

    Which is why the tiny Nuchatlaht Nation, with about 170 members, is heading to BC Supreme Court on March 21 in a landmark title case, naming the provincial and federal governments and Western Forest Products, and why there is absolute determination to win this case and, possibly, set a precedent for other First Nations hoping to lay title claim to unceded territories.

    “We won’t lose. We can’t lose. Losing is not in our vocabulary. We’re here to win. We’re here to change. We’re here to make things better for everyone,”  Little said at a webinar hosted by the Wilderness Committee.

    “Our wealth was abundance, and it was managed as such. It wasn’t just take, take, take until there’s nothing left,” Little said.

    “Look at the state we are in now. We have to stand up. We have to take ownership. We have to protect it and manage it way better,” he said.

    The Nuchatlaht rights and title case, claiming about 200 square kilometres of Nootka Island, is the first to apply the precedent-setting 2014 Tsilhqot’in decision in which the Supreme Court of Canada granted the Tsilhqot’in First Nation title to 1,750 square kilometres of territory. The ruling established that semi-nomadic First Nations can claim entire territories, not only village sites.

    Nuchatlaht is asking for a declaration of aboriginal title and for the Forests Act to no longer apply to those lands. Such a ruling would void existing forest licences and leave Nuchatlaht to decide how to manage the land.

    Little believes local management by people with a deep connection to the area will give the land a chance to recover and, as he confidently predicts victory, he hopes to see salmon parks established on Nootka Island. Salmon parks recognize that everything is connected, from the health of mountain tops to the rivers running through the valley bottoms

    “Salmon depend on water and land. We can’t cut all the trees and expect the salmon to survive. We need healthy waters and healthy fish and healthy people,” he said.

     

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    Clearcut logging on Nootka Island (Photo: TJ Watt)

     

    A test of the Province’s pledge to implement UNDRIP

    The case will also test the Province’s commitment to the Declaration on the Rights of Indigenous Peoples, passed in 2019. The Province pledged to bring all BC’s laws into alignment with the United Nations Declaration on the Rights of Indigenous people.

    That declaration says that Indigenous people have the right to the lands and resources they have traditionally owned, occupied or otherwise used and requires Indigenous communities to consent to decisions that affect their rights.

    However, progress on the provincial declaration has been slow, with some First Nations criticizing the pace of change.

    Chief Michael, speaking at the webinar, said the Province’s insistence on fighting the title case does not indicate a commitment to UNDRIP.

    “Considering the way Canada has been towards us up to now, there’s been no sign of UNDRIP or any of that good faith yet, so I was not holding my breath. Sure enough, there’s no change in their tactics. It’s pretty disappointing, but no surprise,” Michael said.

    Lawyer Jack Woodward, who shepherded the Tsilhqot’in case through the courts and was instrumental in drafting the section of the Canadian Constitution that enshrines Indigenous Rights, is exasperated by the provincial government’s insistence on fighting the case.

     

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    Lawyer Jack Woodward (Photo: Landon Walters CC)

     

    While Woodward acknowledges that implementing UNDRIP is a big project, he said, “But, they just have to work harder. You can’t make a solemn promise to all of the Indigenous people and all of us who feel ashamed of British Columbia’s past…and not follow through. You’ve got to follow through and we just have to keep pressuring our politicians,” he said, in answer to audience questions at the webinar.

    History speaks for itself, according to Woodward.

     

    Province’s legal arguments are “disgraceful”

    “It has been the shame of British Columbia. It’s really our original sin in this province that there have been no proper dealings with the First Nations about their lands, which were simply taken. What is new, is that the current government has promised that they are going to conduct this litigation in a spirit of reconciliation on a principled basis,” he said.

    Instead, the Province’s legal arguments are “disgraceful,” Woodward said.

    The Province’s position, put forward in the latest response to the civil claim, are that the Nuchatlaht abandoned Nootka Island, that BC laws displaced Indigenous title, and that the Nuchatlaht Nation was too small and weak to legally hold title.

    The document describes various groups or Indigenous collectives using the area before the British Crown asserted sovereignty over Nootka Island in 1790 and  “a collective of politically autonomous local groups” that lived in the territory between 1803 and 1846. “There are not now and, since the 1980s there have not been, Nuchatlaht resident communities in the Claim Area,” it says.

    That is because the Nuchatlaht were driven out after they were forbidden to cut trees or build houses on Crown land, Woodward said.

    “They were evicted. They were forced off their land by the government’s act. This is a disgraceful argument that our government is making…I am embarrassed that our Province continues to advance that position. I am calling on the Attorney General to turn it around,” he said.

    “Our argument is really very simple that Indigenous people, like all Canadians, have to have the right to inherit the wealth of their grandparents…That right was cut off by government actions in the last decades and that is what we are going to fix in this court case,” he said.

    An e-mailed statement from the Ministry of Indigenous Relations and Reconciliation said the Province is committed to a principled legal approach, but the primary goal is always to resolve issues outside the courts.

    “We are deeply committed to advancing reconciliation in BC—guided by the Declaration on the Rights of Indigenous Peoples—and with meaningful consultation and cooperation with Indigenous Peoples,” it said.

    The claim that British Columbia’s laws displaced Aboriginal title, if it ever existed, is a new argument, Woodward said.

    “That’s the extinguishment argument recycled with a different word,” said Woodward, adding that, under the Canadian Constitution and UNDRIP, there cannot be claims that Indigenous title was extinguished.

    The Province is not arguing extinction and has not used such a defence since the litigation started, replied the ministry in an e-mail.

    Since 2019, the Province has based its negotiations on a recognition of the inherent rights of Indigenous peoples “with all agreements stating explicitly that government will not require Indigenous peoples to extinguish their rights,” says the ministry response.

    Then, there is the “Luxembourg defence” claiming Nuchatlaht was too small and weak to have Indigenous title, Woodward said, pointing out that Luxembourg is squished between the great powers of France and Germany, but still exists.

    “That’s like Nuchatlaht. They are still there… [and] that is the bully’s argument that they say only the strong have a right to survive,” he said.

    The pleading from the Province says the government is concerned about possible overlapping title claims with the Ehattesaht and Mowachaht-Muchalaht First Nations, but Woodward said there are no overlaps with the territories of other First Nations.

    “What distinguishes this case is the very careful way that Nuchatlaht have exercised restraint by not making a claim for any areas claimed by another First Nation,” he said.

    Ehattesaht and Mowachaht-Muchalaht confirmed there are no problems with overlap and both First Nations support the Nuchatlaht claim.

     

    Show of support requested

    As the case progresses, and particularly if Nuchatlaht is victorious, one of the questions will be whether other First Nations are ready to follow suit.

    For most communities, the downside is the time, energy and money required to get a case into court and Woodward has accused the Province of using delaying tactics to increase the expense in the Nuchatlaht case, which was launched in 2017.

    Woodward said many people were surprised that more First Nations did not embark on rights and title cases after the Tsilhqot’in victory, but most opted to aim for negotiated settlements instead of long, expensive court cases.

    As some of the “clutter” is cleared in the initial cases, Woodward hopes the time and the cost will decrease.

    “My ambition is that this case will be done for 10 percent of the cost and 10 percent of the time of Tsilhqot’in and I think we might do it,” he said.

    The case will start Monday, March 21, 2022 and continue for eight weeks, followed by two weeks of legal submissions in September. Nuchatlaht members are asking for a show of support with a rally at the Nelson Street entrance of the BC Supreme Court in Vancouver at 8:30 am March 21.

    Judith Lavoie is a freelance journalist who enjoys exploring stories about the natural world.

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