The B.C. Court of Appeal says a lower court judge used an “arbitrary boundary” to determine a First Nation’s Aboriginal title over a swath of Nootka Island off western Vancouver Island.
A three-judge panel says the B.C. Supreme Court made three legal errors when limiting the Nuchatlaht Nation’s claim over a 201 square kilometre portion of the island, finding the tribe had met the test for “sufficient occupation” when the British Crown asserted sovereignty.
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The 2024 lower court ruling found the Nuchatlaht had established title over coastal areas of the island, but the Appeal Court found the judge had relied too much on the findings of an anthropologist about the nation’s use of “remote inland” areas before and after 1846.
The ruling says the trial judge drew an “arbitrary boundary” in granting title over a portion of the area claimed, which wasn’t “based upon the Nuchatlaht’s manner of life, material resources, and technological abilities.”
It says the lower court’s adoption of the boundary didn’t reflect the nation’s use of the lands as evidenced by the presence of thousands of “culturally modified trees” dating back to the late 18th century.
The Appeal Court says the Nuchatlaht identified territory that it “exclusively” occupied and used for hunting, fishing and gathering activities, in addition to other evidence that established its “strong presence on or over the land claimed.”
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