A tiny BC First Nation is on an epic journey in BC. The Supreme Court battle over Indigenous land title indicates the province is ignoring its own newly issued guidelines on how to handle lawsuits involving Indigenous peoples.
Members of the Nuchatlaht First Nation launched a blistering attack on the Crown on Friday for maintaining an unwavering approach in a fight for title to 200 square kilometers of land off Vancouver Island – even as the Attorney General of British Columbia released new guidelines for civil litigation aimed at promoting reconciliation and reducing conflict.
“It is infuriating for me to read and listen to the Attorney General’s direction on the court case regarding our land title case and see how there is no follow through,” Nuchatlaht Coun said. Robert John said in a statement.
“The pretty words ‘better future’ and ‘true and lasting reconciliation’ apply only to meet their publicity needs. Come on BC, shake your head and show us some real reconciliation!”
“What will change in this dispute? »
The Nuchatlaht are seeking Aboriginal title to an area of Crown land 300 kilometers northwest of Victoria, consisting primarily of Nootka Island and much of the surrounding coastline.
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has loomed over the matter from the start – as British Columbia passed legislation in 2019 to bring its laws into line with a document that states that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”
Legal experts have long wondered what this would mean for litigation, and B.C. Attorney General David Eby provided an answer Thursday with a list of 20 guidelines.
The guidelines call on the Crown to “vigorously pursue all alternative forms of resolution throughout the litigation process,” reminding attorneys of their “obligation to respect Aboriginal rights, treaty rights and Indigenous human rights.”
Nuchatlaht’s lawyer, Jack Woodward, raised the new guidelines in court Thursday – stressing to the judge handling the case the emphasis on reconciliation, negotiation and “minimizing cost and complexity”.
“It’s a very political issue. This directive that came out today is getting a lot of media coverage right now, and what the media are asking – they’re calling me up and saying ‘Well, what what’s changing?” Woodward said.
“What will change in this litigation as a result of this directive? And of course, that’s not for me to answer.”
Crown attorney Jeff Echols responded that the guidelines were taken seriously and would be reviewed on an ongoing basis, but that “the province has considered its case within the context of the guidelines and at this time we are not considering of amendments”.
“I just don’t want there to be a suggestion left that all of a sudden we’re going to ask for further instructions and there’s going to be a change in what we plan to do during the trial,” Echols said.
“This is not what the minister announced”
British Columbia Premier John Horgan was questioned Thursday about the Nuchatlaht case.
He said the Attorney General’s guidance on civil litigation with Indigenous peoples was not at odds with the Crown’s courtroom approach in a democratic society where some disputes inevitably end up before judges.
“That in itself does not say that from now on there will be no litigation between the Crown and the holders of Aboriginal rights and title. It will continue. We want to reduce that. We want to make sure the engagement in court is done in a way that can reduce the impacts,” Horgan said.
“But we can’t and we won’t completely eliminate litigation. That wasn’t the goal and that’s not what the Minister announced.”
Nuchatlaht First Nation is the first to make a claim under the terms of a groundbreaking three-part test established by the Supreme Court of Canada in 2014 to establish Aboriginal title.
To meet that standard, the Nuchatlaht must prove they occupied the territory exclusively in 1846 – when the British claimed sovereignty through a treaty that culminated in the current border between Canada and the United States.
The province disputes the claim, arguing in its court documents that prior to the arrival of the British, the Nuchatlaht were a “relatively small and relatively weak association of groups” that had been “moved from areas outside the area claimed by other indigenous peoples.”
In a written statement, the Nuchatlaht said “such oppressive and similar arguments are not permitted under UNDRIP.”
“Premier Horgan credits British Columbia for the transformative change that UNDRIP will bring, but they have taken us away from reconciliation and lack any sign of good faith,” said Nuchatlaht Tyee Ha’wilth (Chief )Jordan Michael.
“There has been no show of good faith. The provincial government’s hypocrisy is very apparent and needs to be corrected.”
The Crown began calling its witnesses on Friday. The deal is expected to close in the coming weeks.