By Kate Kempton (SCBC strategic advisor and lawyer specializing in Indigenous rights)
The B.C. Supreme Court issued its decision in the Nuchatlaht First Nation Aboriginal title case the on May 12. The decision highlights the real problem with Canadian colonial law in addressing Indigenous land justice.
The decision found that the First Nation could not “pass the legal test” to prove Aboriginal title in the area claimed (230 square kilometres in the northwest part of Vancouver Island), which test has been set down by the Supreme Court of Canada for the last 20 or so years.
That test requires a First Nation to show that at the time the Crown asserted its sovereignty over the area in question. The Nation had exclusive use and occupation of such areas. Such use and occupation can be shown not just be physical use such as residence in villages, harvesting grounds used regularly, travel routes etc, but also by governance over the area through laws and legal enforcement.
In this case, the Nuchatlaht First Nation did not prove to the satisfaction of the court that it had such use and occupation, and the court noted that this is due in large part to the fact that the First Nation relied on the coastal waters rather than dry land for more travel and harvesting, and past or permanent markers of this could not be as readily found.
The case was launched in 2017. The Declaration on the Rights of Indigenous Peoples Act (DRIPA) became law in BC in 2019, yet it appears to not have affected the B.C. Crown’s position or behavior in this case. The B.C. government aggressively fought the First Nation in the case, denying it had title to the full area claimed and denying that it did anything wrong in allowing so much forestry in the area.
This case points out the fundamental flaws in the colonialist legal regime for Aboriginal title: Crown title is presumed to exist through some mere bald assertion of Crown sovereignty, and First Nations have to prove that presumption incorrect by amassing a truckload of evidence that the First Nation was here first and only. That evidence must be brought forward despite the fact that First Nations are largely oral cultures not having written records of their past occupation, whereas court proceedings are largely written. The fact that the First Peoples must bear the onus of proof of being here, as against the late arriving colonist government, is clearly backwards and grossly unjust; that the evidentiary burden is pitted against First Nations is doubly unjust. Neither DRIPA nor any other application of international law on the rights of Indigenous Peoples to control their lands will make much difference in B.C. unless and until this backward travesty is placed right side up – until we see that it is the Crown with the land claim and First Peoples with the presumption to land control.
The Nuchatlaht First Nation may go back to court, as the judge invited, to seek proof it has title to smaller discrete tracts of land within its larger area. The B.C. Crown could prevent the need for this by simply applying a large and liberal interpretation to DRIPA and agreeing that the First Nation was here first and only, and maintains control and title over its land.