B.C. Supreme Court hears closing arguments on Nuchatlaht First Nation's land claim

A lawyer for the Nuchatlaht First Nation, which is fighting for title to part of Nootka Island in British Columbia, has told a court that the underlying objective of the proceeding is reconciliation.

Jack Woodward said at the start of his closing argument that the province missed its opportunity and has instead placed "the burden of reconciliation squarely on the court," in the first test of the landmark 2014 Tsilhqot'in Aboriginal title decision by the Supreme Court of Canada.

"The province presents the court with a stark choice: dismissal or declaration. No alternatives have been presented," Woodward told the court Tuesday.

"I am shaking my finger at the province for that because it certainly was in their control and power to help design and accommodate a process that would have put the court in a less binary position."

Nuchatlaht's land claim on Nootka Island

In its trial that began this March, the Nuchatlaht First Nation is 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 — when the country's top court granted the Tŝilhqot'in First Nation title to more than 1,700 kilometres of land in northern British Columbia.

To meet the standard of establishing an Aboriginal title, 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.

The lawsuit, filed by the Nuchatlaht First Nation in B.C. Supreme Court in 2017, argues that the B.C. and federal governments denied Nuchatlaht rights by authorizing logging and "effectively dispossessing" the nation of territory on Vancouver Island's west coast.

The B.C. government denies that the Nuchatlaht hold Aboriginal title over the 230-square-kilometre area, including parts of Nootka Island and says it has met its obligations under agreements with the nation related to forest resources.

Crown attorney Jeff Echols previously argued in March that the "modern-day" Nuchatlaht draws its membership from a broader base of Indigenous people, and the First Nation wasn't alone in using the island when the Crown asserted sovereignty over what is now B.C. in 1846.

He said case law had established that Aboriginal title is not transferable, and the legal test would not allow the modern Nuchatlaht to take on the title of other historical Indigenous groups whose members joined or merged with them.

But Woodward argues the Nuchatlaht occupied and used the claimed area before and during 1846, when the Crown asserted sovereignty over what is now B.C.

He said the Nuchatlaht had a "magnificent advantage" in the case, in that "not only were there the different local groups who all had occupation of their respective territories, but they were organized into a confederacy."

"This is remarkable fact," he said. "I think that's the crux of the case."

Land claim supporters rally outside courthouse

Supporters of the claim rallied outside the court complex in Vancouver before closing arguments began. Among them was Nuchatlaht council member Erick Michael.

"We're here to fight for our past generations and future generations to come so we can have a healthy, strong future," he told the crowd.

Mariah Charleson, the vice-president of Nuu-chah-nulth Tribal Council, which represents 14 communities including Nuchatlaht, said she made the trip to the courthouse steps to show support in their "fight against B.C."

"This is a case that is going to set the precedent on how B.C. deals with the land issue. 'Land Back' is a real thing. It's giving the land rights title inherent jurisdiction back to the original landowners and the Nuchatlaht are setting the precedent," she said.

First lawsuit for Indigenous land title after UNDRIP

The closing arguments come about five months after the province announced the development of "a new approach to litigation" as part of its process to implement legislation in accordance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

This included 20 directives for the Crown to prioritize resolution and negotiated settlement, while reducing the potential for legal action over Indigenous rights and title.

In a court transcript from April, supplied by the Nuchatlaht's legal team, Crown attorney Echols said the province knew about the directives before their release and does not intend to adjust its arguments for trial.

At the time, Woodward said the government's decision not to adjust the case based on its own new litigation directives "undermines the process of reconciliation."

Hearings are set to continue until Oct. 14.