B.C. First Nation accuses province of ignoring its own rules in epic court battle

A tiny B.C. First Nation waging an epic B.C. Supreme Court battle over Aboriginal land title says the province is ignoring its own newly minted directives on how to handle lawsuits involving Indigenous peoples.

Members of the Nuchatlaht First Nation issued a blistering attack on the Crown Friday for maintaining an unflinching approach to a fight over title to 200-square kilometres of land off Vancouver Island — even as B.C.'s attorney general issued new directives for civil litigation aimed at promoting reconciliation and reducing conflict.

"It is infuriating to me to read and listen to the directives of the Attorney General on the court case regarding our land title case and see how there's no follow through," Nuchatlaht Coun. Robert John said in a statement.

"The pretty words 'better future,' and 'true and lasting reconciliation' only apply to suit their publicity needs. Come on B.C., give your head a shake and show us some true reconciliation!"

'What is going to change in this litigation?'

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 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has hovered over the case from the outset — as B.C. passed legislation in 2019 to align its laws with a document that states "Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired."

Legal experts have long wondered what that would mean for litigation, and B.C. Attorney General David Eby provided an answer Thursday with a list of 20 directives.

The directives call on the Crown to "vigorously pursue all alternative forms of resolution throughout the litigation process," reminding counsel of their "obligation to uphold Aboriginal rights, treaty rights and Indigenous human rights."

Nuchatlaht lawyer Jack Woodward raised the new directives in court Thursday — pointing out to the judge overseeing the case the emphasis placed on reconciliation, negotiation and "minimizing costs and complexity."

"This is a very political matter. This directive that has come out today is being reported upon widely in the media right now as we speak, and what the media are asking — they're phoning me and saying 'Well, what is changing?" Woodward said.

"What is going to change in this litigation as a result of this directive? And of course, that's not for me to answer."

Crown lawyer Jeff Echols responded that the directives were taken seriously and would be considered on an ongoing basis, but that "the province has considered its pleading in the context of the directives and at this time we're not intending amendments."

"I just don't want it to be left with some suggestion that all of a sudden we're going to seek new instructions and there is going to be a change in what we're planning to do in trial," Echols said.

'Not what the minister announced'

B.C. Premier John Horgan was asked about the Nuchatlaht case Thursday.

He said the attorney general's directives on civil litigation with Indigenous people were not at odds with the Crown's courtroom approach in a democratic society where some conflicts inevitably wind up before judges.

"It does not say in and of itself that from this point on there will be no more litigation between the Crown and Indigenous rights and title holders. That is going to continue. We want to reduce that. We want to make sure that the engagement before court is done in a way that can reduce the impacts," Horgan said.

"But we can't and we won't eliminate litigation entirely. That wasn't the objective and that's not what the minister announced."

The Nuchatlaht First Nation is among 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.

The province disputes the claim, arguing in its court documents that prior to the arrival of the British, 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."

In a written statement, the Nuchatlaht said "these and similar oppressive arguments are not permitted under UNDRIP."

"Premier Horgan is giving B.C. credit for the transformative change that UNDRIP will bring, yet they have led us further away from reconciliation, and lack any signs of good faith," said Nuchatlaht Tyee Ha'wilth (Chief) Jordan Michael.

"There has been no show of good faith. The hypocrisy of the provincial government is very apparent and needs to be addressed."

The Crown began calling its witnesses Friday. The case is expected to wrap up in the coming weeks.