British Columbia government challenges First Nation land claim on Vancouver Island

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VANCOUVER — The British Columbia government admits that members of the Nuchatlaht First Nation are descended from a historic Indigenous collective, but the lineage of a family of chiefs does not establish Indigenous title, a provincial lawyer s

VANCOUVER — The British Columbia government admits that members of the Nuchatlaht First Nation are descended from a historic Indigenous collective, but the lineage of a chiefly family does not establish Aboriginal title, according to a provincial lawyer.

Jeff Echols said in a trial in British Columbia’s Supreme Court on Tuesday that the province is contesting the nation’s claim to 230 square kilometers of land off the west coast of Vancouver Island.

The “modern” Nuchatlaht draws its membership from a broader base of Indigenous peoples than the “historic” Nuchatlaht when the Crown claimed sovereignty over what is now British Columbia, he said, and the province plans to present evidence showing that their ancestors were not alone in using the lands of Nootka Island.

Case law has established that aboriginal title is not transferable, Echols said. The legal test would not allow modern Nuchatlaht to assume the title of other historic indigenous groups whose members joined or merged with them, he said.

The Nuchatlaht First Nation, which has about 160 registered members, says the BC and federal governments have denied their rights by “effectively dispossessing” the nation of land on Nootka Island. The lawsuit asks the court for a declaration that would recognize their title to the rights and put an end to logging in the claim area.

Jack Woodward, a lawyer for the nation, told the court on Monday that expert evidence shows the Nuchatlaht were organized into something of a confederation, with a number of groups sharing a summer gathering spot in the area.

The claim meets the test for aboriginal title established in the Supreme Court of Canada’s landmark 2014 Tsilhqot’in decision, he said. This case recognized Tsilhqot’in title to much of their traditional territory in the interior of British Columbia.

The area claimed by the Nuchatlaht avoids any potential conflict with neighboring nations, said Woodward, who also represented the Tsilhqot’in.

Echols also said Tuesday that the Nuchatlaht claim was too narrow in scope given the complexity of modern Aboriginal rights litigation. He said he expects there will be disagreements between the nation and the province over the evidence and issues deemed relevant to the trial, which is expected to last for weeks.

Resolving Indigenous rights claims through adversarial litigation is not the only option and it is not the province’s preferred option, he said.

“But litigation must be conducted in accordance with the rules of practice and fairness to all parties. It is particularly important that the court has the evidentiary basis necessary for a fair decision of the case on the merits.”

The nation’s leader at the time the lawsuit was filed in 2017 said the Nuchatlaht had spent many frustrating years at the treaty table and working through other government processes to try to protect their land and health. of their people.

Shortly before the end of Tuesday’s hearing, Woodward said his client had asked him to drop the case against two of the three defendants, the federal government and logging company Western Forest Products.

A lawyer for Western Forest Products told the court his client takes no position on whether the Nuchatlaht have aboriginal title. But Geoff Plant urged the court to consider how a statement acknowledging his rights would affect third parties.

Western Forest Products has provincially approved logging tenures in the claim area on Nootka Island. Plant said the lawsuit, as currently structured, is “incapable of fully addressing the rights of third parties and the public interest.”

If Nuchatlaht’s rights and title to the area are proven, Plant said the best way to achieve reconciliation would be for the court to suspend any statements to allow time for his client’s interests to be considered.

A federal government attorney said Tuesday that he intended to “maintain a minimal role, given that no relief is sought against the federal Crown.”

This report from The Canadian Press was first published on March 22, 2022.

Brenna Owen, The Canadian Press

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