Aboriginal Title and Evidence of Past Use: The Nuchatlaht Decision

Overview

In The Nuchatlaht v. British Columbia, the British Columbia Court of Appeal considered what evidence may establish Aboriginal title^[1]. The Court overturned the trial decision and recognized Aboriginal title over the entire area claimed by the Nuchatlaht on the basis that it was sufficiently occupied in 1846, when British sovereignty was asserted^[2]. In accordance with the Supreme Court of Canada’s approach in Tsilhqot’in Nation v. British Columbia^[3], the Court rejected a narrow, site-specific approach to Aboriginal title and clarified that title to a broad, contiguous land base may be established without proof of intensive or uniform occupation of every part of the claim area^[4]. It is open to courts to infer broader areas of land were sufficiently occupied, for the purpose of establishing Aboriginal title, rather than requiring proof of intensive habitation throughout every portion of the claimed area^[5].

Scope of Claim and Litigation Approach

The Nuchatlaht sought Aboriginal title to approximately 201km² of coastal and interior lands on Nootka Island, which is located off the northwest coast of Vancouver Island^[6]. This decision addresses only a portion of Nuchatlaht’s overarching land claims, as they intentionally confined this claim to land that was not privately owned, federally owned, or subject to competing claims by other Indigenous nations^[7].

This litigation strategy sought to establish title to land the Nuchatlaht considered to be “clearly within their historic boundaries” and truncate the time and cost of pursuing an Aboriginal title claim^[8]. To further streamline the proceedings, the Nuchatlaht opted to rely on expert interpretations of historic documents, including records of potlatch attendance and the observations of early ethnologists and anthropologists, rather than oral history evidence, to establish sufficient occupation^[9]. They also relied on expert opinions of culturally modified trees (“CMTs”) and archaeological sites^[10]. This trial lasted approximately 50 days, compared to the Tsilhqot’in and Cowichan^[11] trials which lasted over 300 and 500 days, respectively.

2023 Trial Decision – Aboriginal Title Denied

At trial, the Nuchatlaht asserted a territorial claim for Aboriginal title, which is not doctrinally confined to areas of specific occupation or cultivation, over a 201km² area on Nootka Island^[12]. After trial, but before judgment, the trial judge asked the Nuchatlaht to provide evidence of their use of non-village coastal sites, for activities such as hunting, fishing, and camping, to support their claim to these areas^[13]. The trial judge subsequently inferred that the Nuchatlaht sufficiently occupied village sites, and some village-adjacent sites, but ultimately dismissed their claim on the basis that the First Nation failed to show they had a “strong presence over”, or sufficiently occupied, most of the claim area (the “First Decision”)^[14]. In arriving at this conclusion, the trial judge relied on his evidentiary findings, which included that:

1. the Nuchatlaht had greater knowledge of the coastal areas than they did of the inland areas;
2. there was “almost no evidence of use” of the inland areas;
3. there were “gaps” in the evidence of use of the coastal areas located in-between the village sites;
4. there was little evidence showing movement between village sites; and
5. nothing demonstrated that the territory of any local Nuchatlaht Chief extended beyond the village sites^[15].

2024 Trial Decision – Aboriginal Title Granted to Small Area

After denying the Nuchatlaht’s claim to the entire area, the trial judge permitted Aboriginal title to be sought with respect to a smaller portion of land^[16]. The Nuchatlaht reasserted their claim to most of the area originally sought. They proposed boundaries be defined either in accordance with a historic map, as interpreted by an expert witness, or by the natural boundaries of watersheds, on the basis that they sufficiently occupied, and excluded others from, this territory^[17]. The trial judge found both rationales uncompelling on the basis that sufficient occupation of much of the claimed area was lacking^[18]. In a second decision in 2024, the trial judge recognized Aboriginal title over certain coastal village sites and a narrow stretch of oceanfront which, subject to some exceptions, extended inland to an elevation of 100 meters (the “Second Decision”)^[19].

The Nuchatlaht Appeal

The Nuchatlaht appealed these decisions to the British Columbia Court of Appeal^[20]. The First Decision was mainly challenged on the trial judge’s evidentiary findings regarding inland occupation and his application of the sufficient occupation requirement^[21]. They contested the Second Decision on the basis that the 100 meter inland boundary was arbitrary and that Aboriginal title was not recognized in areas where its elements were clearly established on the evidence^[22].

Sufficient Occupation Requirement

The Court of Appeal reiterated that Aboriginal title flows from an Indigenous nation’s sufficient and exclusive occupation of land at the time British sovereignty was asserted^[23]. Unlike the claimant in Tsilhqot’in, the Nuchatlaht did not rely on present occupation as evidence of occupation in 1846, so they were not required to establish continual occupation of the claim area from 1846 to present^[24]. The central issue, in trial and on appeal, was whether the Nuchatlaht sufficiently occupied the claim area in 1846^[25].

The Court of Appeal discussed that various activities and practices are capable of demonstrating sufficient occupation, and this requirement must be assessed with reference to the Aboriginal group’s way of life^[26]. For example, a nomadic Indigenous nation need not show “established village sites” or “intensive use” of land so long as they demonstrate their “regular use” of the claimed area^[27]. It follows that no uniform standard exists, and that what constitutes sufficient occupation for the purposes of grounding Aboriginal title, may differ depending on the Indigenous group and their way of life.

The Court of Appeal found that the trial judge applied these principles too narrowly by recognizing sufficient occupation only at, and adjacent to, coastal village sites, while excluding inland and intervening coastal areas^[28]. This was evident from:

1. not recognizing the significance of territorial boundaries that were shown on the evidence;
2. treating spatial “gaps” in evidence of use as determinative;
3. the perspective that relevant CMT sites had to be adjacent to settlement areas; and
4. holding evidence of occupation in 1846 to an unduly high standard^[29].

Accordingly, the Court of Appeal found that material evidence had been misapprehended, the sufficient occupation test had been misapplied by requiring evidence of specific and uninterrupted use throughout the entire claim area, and that arbitrary boundaries had been drawn that were not grounded in the Nuchatlaht’s manner of life, material resources, or the character of the land^[30].

Misapprehension of Evidence

An improperly narrow conception of the sufficient occupation requirement was reflected in how the evidence was treated at trial. In particular, CMT evidence supporting sufficient occupation of non-village sites was discounted because the trial judge was looking for it to show “site-specific, intensive occupation.”^[31] Put differently, when sufficient occupation is properly understood as not requiring “site-specific intensive occupation” such as villages throughout the entire claim area, indications of repeated or periodic use of the territory may serve as compelling evidence of sufficient occupation, despite that use being neither constant nor uniform.

This decision demonstrates that “evidence of … longstanding practice[s] of harvesting trees and bark” in non-settlement areas can help establish “tracts of land … regularly used for … exploiting resources,” which is a form of non-temporary land use capable of grounding Aboriginal title^[32]. The Court of Appeal concluded the Nuchatlaht had established this type of land use, when they led evidence of thousands of CMTs at numerous sites throughout their claim area, which were created before and after the assertion of British sovereignty, through activities such as bark stripping, felling, plank removal, and hole boring^[33]. This evidence was contextualized through expert testimony on the role of forest resources in Nuchatlaht society, including how these resources were used to produce canoes, clothing, drums, and other important items, as well as the cultural role of cedar bark in practices associated with birth and death^[34].

This decision illustrates that CMTs created both before and after the assertion of British sovereignty may be relevant to the sufficient occupation analysis, as the Court of Appeal opined in this case.

Comment on International Law

The Court of Appeal affirmed that an international law concept, pertaining to the drawing of borders based on watersheds and coastlines, is inapplicable to determining the extent of Aboriginal title^[35]. The Court clarified that international law’s utility in Aboriginal title proceedings is limited to the recognition that “geographic features such as coastlines, mountain ranges, and watersheds” may sometimes be indicative of territorial boundaries^[36]. The Court cautioned that it is “neither necessary nor helpful” to rely on international law principles to determine the nature and extent of Aboriginal title, and emphasized that the Canadian framework and authorities for assessing Aboriginal title are sufficiently instructive^[37].

Arbitrary Boundaries Initially Drawn

Where the trial judge recognized Aboriginal title over limited parcels of land, the Court of Appeal held that the boundaries drawn were not grounded in the Nuchatlaht’s way of life, key resources, technological abilities, or the character of the land^[38]. This was particularly evident with respect to a 100 meter elevation boundary which was seemingly unconnected to the geography, given it cut across various types of terrain^[39]. This perimeter also failed to reflect how the Nuchatlaht lived and interacted with the land, given that some significant sites were only included after the line was adjusted, and other regularly used areas, such as CMT sites at elevations between 200 and 500 meters, were excluded entirely^[40]. Further, Aboriginal title was recognized over a very discrete site that excluded the surrounding land, including areas below the 100-meter elevation line. The Court held this area was recognized in an improper “postage-stamp” approach, which was rejected in Tsilhqot’in in favor of a more holistic perspective^[41]. The Court further held that Aboriginal title was improperly denied to otherwise qualifying areas on the basis that it was not adjacent to a village site^[42].

This decision makes it clear that Aboriginal title is not restricted to village sites and adjacent areas^[43]. It also shows judicial willingness to revise the boundaries of Aboriginal title where the established bounds do not cogently reflect the geography or how the Indigenous nation used the land.

Remedy

Rather than remitting this matter back to the trial court, the Court of Appeal recognized Aboriginal title over the entire claim area sought by the Nuchatlaht^[44]. It also acknowledged that the Forest Act^[45] and Park Act^[46] no longer apply to these lands^[47].

Conclusion

The key takeaway from this decision is that Indigenous nations may demonstrate sufficient occupation of an area where Aboriginal title is claimed, by leading evidence of less intensive or periodic use, such as CMTs, in order to fill in the blanks that might otherwise be left between areas where there is more compelling evidence of use and occupation (like village sites). The Court’s treatment of CMT evidence highlights the potential utility of this type of evidence for establishing sufficient occupation. This decision may also be of interest to all parties involved in Aboriginal title litigation, as the Nuchatlaht were successful in a relatively short period of time and without relying on oral history evidence.