A three-judge panel of the B.C. Court of Appeal has sided with the Nuchatlaht Tribe and declared Aboriginal title on a 210-square-kilometre area of Nootka Island.
In 2023, a lower court used a site-specific approach and declined to issue a declaration of title on a claim of 201 square kilometres. After this dismissal, the judge allowed a modified claim to a select coastal area. That judgment would have only granted title to a much smaller area and is bound up in this appeal.
None of the land is subject to competing claims or held by third parties, unlike the recent Cowichan Tribes decision.
The primary element relied upon by the judges in this decision is the “sufficiency of occupation.”
“To sufficiently occupy the land for purposes of title, the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes,” reads the case law cited by the justices.
The justices say the trial judge erred by limiting his assessment to evidence of occupation, which could be linked to village sites or reserves. This excluded large surrounding areas that would have required regular use. The judge also failed to consider evidence of culturally modified trees.
“In combination, these errors indicate the judge misapplied the test for sufficient occupation and made palpable and overriding errors in applying the law to the facts,” the appeals panel wrote.
Because of this, the panel determined that the boundaries the Nuchatlaht exercised control over historically extend not only over the territory identified by the trial judge, but also the north coast of Nootka Island, the coast of Nuchatlitz Inlet, and south from there along the outer coast of Nootka Island to a point near Ferrer Point.
Premier David Eby said the government’s legal team is reviewing the decision and has not yet decided whether the province will appeal to the Supreme Court of Canada.
Attorney General Niki Sharma provided a written statement.
“The Province is carefully reviewing the decision, and we will take the time needed to assess its implications and our legal options going forward,” she said. “We are unable to comment further while this review is underway.”
Black Press Media has reached out to Nuchatlaht Chief Jordan Michael for comment but has not yet received a response.