Nuchatlaht First Nation has received a trial date of March 15, 2022 from the B.C. Supreme Court, to proceed with its Aboriginal land title case.
The First Nation received its trial date last month after filing a case in 2017 to officially recognize its right and title to territory on the north of Nootka Island, off the west coast of Vancouver Island.
Jack Woodward, the lawyer representing the Nuchatlaht said, getting a trail date with a fixed judge is an important step in itself as most often cases like these don’t get to trial or get dropped due to procedural or political reasons, among others.
The trial set for next year already had an interim ruling earlier this month in favour of the First Nation, allowing it to introduce Culturally Modified Trees (CMT) as part of its evidence after Crown counsel argued to exclude archaeological reports prepared by expert Jacob Earnshaw.
Earnshaw was commissioned by the First Nation to perform surveys within the Nuchatlaht claim area on Nootka Island to understand the condition of recorded CMT sites as well as search out and record other previously unrecorded archaeological sites. These records provide a further understanding concerning the use and occupation of the claim area.
The province asked to exclude the report citing Earnshaw’s “bias, novel approach, qualifications and necessity of the opinion.” However the motion was dismissed in court on March 4.
The Nuchatlaht case is significant as it could pave the way for other First Nations in B.C.
The Nuchatlaht case is a direct application of the precedent-setting 2014 Tsilhqot’in decision, where the Supreme Court of Canada granted declaration of aboriginal title to more than 1,700 square kilometres of land in British Columbia to the First Nation. The decision stated that a semi-nomadic tribe can claim title even if the land is used sporadically. Woodward was the lawyer for Tsilhqot’in Nation too.
Nuchatlaht’s case will also the first land title to be tested against the backdrop of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) that B.C. passed as legislation – DRIPA/ Bill 41 – in 2019.
Last year, in November, the Nuchatlaht had called on the province to honour UNDRIP and drop the “distasteful” legal argument the crown counsel was making – that the First Nation abandoned their territory. They said that the crown counsel had been stalling the case since 2017 by raising “absurd” and expensive arguments for the First Nation community consisting of under 200 members.
The Nuchatlaht claimed that it was forced out of its traditional territory on Nootka Island, and the land was licensed by the province to logging companies without the consent of the First Nation. Western Forest Products – also a defendant in the case along with the provincial and federal governments – runs its operations on Nootka Island.