The Supreme Court of British Columbia is set to hear the Nuchatlaht Nation case which has set a precedent


By Shari Narine

Journalist of the Local Journalism Initiative

The legal counsel who successfully navigated the Supreme Court of Canada’s landmark decision on the Tsilhqot’in Nation, which declared Aboriginal title to be held over a significant tract of land in British Columbia, leads the legal charge of Nuchatlaht Nation. He is confident that the small nation will enjoy the same success.

“Our argument is really very simple, that Indigenous peoples, like all Canadians, have the right to inherit the wealth of their grandparents? They have a right to the land that their ancestors own.

“It’s a very simple argument and that right that has been severed by government actions over the last few decades is what we’re going to fix in this court case,” attorney Jack Woodward said.

The Nuchatlaht Nation began their legal battle in 2017 by fighting British Columbia and the federal government to reclaim their land. Their territory includes much of Nootka Island off the west coast of Vancouver Island. It has been impacted by industrial logging and fishing for nearly a century since Nuchatlaht was relocated by the BC government. British Columbia granted licenses to companies to work the land. Western Forest Products, one of these licensees, is also a defendant in this case.

The remedy sought, Woodward said, is that aboriginal title exists and the BC Forest Act ceases to apply.

“The logging companies are going to have to deal with Nuchatlaht, not the provincial government, and Nuchatlaht may decide they’re not going to keep cutting those trees down,” he said.

Woodward participated in a webinar hosted by the Wilderness Committee last week, with Nuchatlaht Ha’wilth (hereditary

chief) Jordan Michael and Nuchatlaht House President Archie Little to talk about the upcoming case, which will see arguments begin in March

21 in the Supreme Court of British Columbia in Vancouver.

Woodward said he had just received the province’s statement of defense on the case, which set out three arguments: that Nuchatlaht does not currently occupy the land; BC laws superseded or extinguished Aboriginal title; and Nuchatlaht was “too small and too weak” to have Aboriginal title.

Woodward chastised the province for its “shameful argument” and called on Attorney General David Eby to “turn the tide.”

Woodward also called on the province to implement the Declaration on the Rights of Indigenous Peoples Act (DRIPA), which came into effect in November 2019. British Columbia was the first province to pass legislation establishing the Declaration of Nations Rights of Indigenous Peoples (UNDRIP) as a framework for reconciliation.

“Given the way Canada has been towards us so far, there has been no sign of UNDRIP or any good faith yet, so I wasn’t holding my breath. Effectively, there is no change in their tactics. It’s quite disappointing, but it’s no surprise,” Michael said.

The Nuchatlaht case will be the first land title to be tested against DRIPA and could set a precedent.

Woodward said there are a number of other potential Haida, Coquitlam, Cowichan Tribes cases that could be impacted by this decision.

The Nuchatlaht case is also a direct application of the 2014 Tsilhqot’in decision which set a precedent. The Supreme Court of Canada has said that a semi-nomadic tribe can claim title to a piece of land even if it is used sporadically.

Woodward said after the Tsilhqot’in decision he expected a “flood of cases,” but there were none.

“First Nations are generally reluctant to go to court, fear the court system, are much more interested in a negotiated solution than a litigious one, and are polite and civil and don’t really like the adversarial structure of the court system” he said.

Nuchatlaht’s trial is scheduled for eight weeks.

“All the delay is caused by the resistance of the provincial government. Canada is more or less passive. So BC makes it more expensive, more difficult,” Woodward said.

Michael and Little share Woodward’s confidence in the outcome of the case.

“Is it to make sure Nuchatlaht stays in Nuchatlaht?”

“We will not lose. We can’t lose and we went into this process thinking that losing was not in our vocabulary. We are here to win. We are here to change. We’re here to make things better for everyone,” Little said.

Michael said victory would allow him to address the social and housing issues facing his country.

“We come from a very wealthy territory, but we are all stuck in a small reservation, a bit like living in a third world country.

Just the possibilities that are about to unfold, it’s just going to create a lot of opportunities for us that we’re very excited about,” he said.

A rally is scheduled for 8:30 a.m. at the Nelson Street entrance to the Supreme Court of British Columbia in Vancouver on March 21. Meals, accommodation and transportation are to be provided for rally attendees, according to a Facebook post from Nuchatlaht.

Shari Narine is a Local Journalism Initiative reporter who works for WINDSPEAKER.COM. The Local Journalism Initiative is funded by the Government of Canada.

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