Das Gericht entscheidet, dass die BC First Nation Landtitel besitzt und erkennt ihren vollen Anspruch an

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Can someone do that magic thing to remove the paywall?

I am sure there is more to this than the article headline gives. Will reserve comment until I can react properly.

The progressive judges hate you.

Right now property rights are not constitutionally protected in Canada. Between this and the gun buyback program where the government can force you to hand over your legally acquired firearms, we’re going to see property rights moving closer to among the top issues that concern Canadians. Poilievre can really find his footing if he starts specifically talking about enshrining property rights in the constitution, whether he can realistically do that or not. We’re already seeing a glimpse of that with his stance on Alto.

Good. I hope they get the whole country. Couldn’t be much worse. 

>On Thursday, the court recognized the First Nation’s full claim, **saying the B.C. Supreme Court erred by disregarding material evidence, setting an arbitrary boundary, and incorrectly limiting evidence of occupation to village and reserve sites**.

>“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 judgment states.

>The decision means **the First Nation has sufficiently proven they occupied the area at the time Britain asserted sovereignty** over Nootka Island, the test set out in the Supreme Court of Canada’s landmark Tsilhqot’in decision in 2014.

*The 2014 Tsilhqot’in SCC decision established that Aboriginal title is proven through three key metrics:*

– *sufficiency (active use)*

– *continuity (present-day link to historical use)*

– *exclusivity (control over the area) at the time of sovereignty (1846 in British Columbia)*

*So let’s take a look see at the merits of this case prior to the reinterpretation of evidence:*

https://www.mandellpinder.com/the-nuchatlaht-v-british-columbia-2023-bcsc-804/

>The Nuchatlaht v. British Columbia, 2023 BCSC 804 – Case Summary, 24 May 2023

>The Nuchatlaht **relied exclusively on documentary and expert evidence, including its two expert witnesses, anthropologist and archaeologist John Dewhirst and archaeologist Jacob Earnshaw**.

>**The Nuchatlaht led no oral history evidence or other evidence from community members.**

>Canada took no position on the claim, adduced no evidence, and made only brief submissions. BC contested the claim, denying that the Nuchatlaht have Aboriginal title to the claim area. **BC called three expert witnesses to support its defence, anthropologist Dr. Dorothy Kennedy, anthropologist Dr. Joan Lovisek, and archaeologist Morley Eldridge.**

>In the result, the court did not issue a declaration of Aboriginal title, finding that **the evidence did not establish sufficient occupation of the entire claim area to meet the test for Aboriginal title**. The court, however, left the door open to the Nuchatlaht to pursue a declaration of Aboriginal title to one or more smaller areas within the claim area.

>Though not argued by the parties, **the court relied in part on article 3 of the United Nations Declaration on the Rights of Indigenous Peoples, which provides that Indigenous Peoples have the right to self-determination, which incudes the right to determine their political status. The court noted that the UN Declaration is “incorporated into the province’s laws.”**

>The key issue in this case was whether the Nuchatlaht’s occupation of the claim area in 1846 was sufficient to establish Aboriginal title under Canadian law. To establish Aboriginal title under Canadian law, a claimant group must prove that its occupation of the claim area at the time of the assertion of sovereignty was “sufficient.” **While physical occupation is required, the question of what kind of occupation is sufficient is a contextual question that depends in part upon the way of life of the claimant group. Whether the evidence of occupation of the claim area by the claimant group is “sufficient” to establish Aboriginal title, is a question of fact on which the trial judge retains a broad discretion.**

>**The Nuchatlaht argued that it could prove occupation of the claim area based on evidence that the claim area was within Nuchatlaht territory rather than evidence of use and occupation of specific lands within the claim area. The only evidence of the boundaries of Nuchatlaht territory before the court, however, was a map by Dr. Phillip Drucker published in 1953, the late American anthropologist and archaeologist, which John Dewhirst, the anthropologist expert witness called by the Nuchatlaht, relied on without additional research.** The court held that a territorial boundary, even if recognized by other Indigenous groups, is not enough to prove sufficient occupation of land. **In the court’s view, there must be evidence of “a strong presence over the land.” In addition, the court held that the Drucker map did not distinguish between areas subject to Nuchatlaht Aboriginal title and areas within which the Nuchatlaht have other Aboriginal rights.**

>The Nuchatlaht also led evidence of physical occupation within portions of the claim area. In 1846, Nuchatlaht villages were all located on the coast. The Nuchatlaht sought to prove title to interior areas in part through evidence of culturally modified trees (CMTs). **The court held that the CMT evidence was of little assistance in proving occupation of the interior of the claim area because there was only one recognized CMT site in the interior at which only 6 of the 71 CMTs pre-dated 1846. While the Nuchatlaht’s expert on CMTs, archaeologist Jacob Earnshaw, identified other CMT sites, the court found this evidence to be of little assistance because the witness did not secure permits for the work and the dating analysis offered was unreliable.** The court observed that most of the CMT samples post-dated 1846 and it was uncertain whether the CMTs were made by the Nuchatlaht or other peoples. Other archeological evidence, such as evidence of middens and burials, was also of little help, in the court’s view, because of uncertainty as to which people were responsible for each site, and because the sites were mostly located at villages or camps along the coast, where evidence of Nuchatlaht occupation was strong.

>**The court held that it could not find sufficient occupation of the whole claim area based on the evidence. In the court’s view, there was very little evidence of occupation of the interior of the claim area and many “gaps” in the evidence of use and occupation of land along the coast, in part because there was no evidence of Nuchatlaht use of the marine environment because that was beyond the scope of the title claim to land.**

>The court suggested that the evidence of Nuchatlaht use of the local village settlements and camps in 1846 would be sufficient to establish title to those areas but observed that most of those lands are now Indian Act reserves and they are largely concentrated in one portion of the claim area, the west side of the peninsula between Esperanza and Nuchatlitz Inlets. The court accepted that some CMT sites, all but one of which were located near historical, undisputed Nuchatlaht settlements, were evidence of Nuchatlaht occupation of those areas in 1846.

>The court observed that the test for Aboriginal title may not be suited to the circumstances of a coastal people whose culture is oriented toward the marine environment but held that whether and how the test should be adapted to the circumstances of coastal claimants is a matter for a higher court to address.

>In pre-contact Indigenous societies in what is now British Columbia, it was not uncommon for land and resource rights to be held at the local level. **The court suggested that if Aboriginal title is historically held at the local level, proof of title would be much more difficult, in part because of the complexity of modern communities having to trace genealogical connections to each of the local groups in existence in 1846 that now comprise the modern rights-holding community.** Importantly, the court held that it didn’t matter if local groups joined the modern collective before or after 1846. **The way in which the court approached this issue in the Nuchatlaht case avoids that difficult problem and recognizes that the question of the proper rights holding collective is fundamentally a question of self-determination.**

>**Ultimately, the Nuchatlaht claim failed because the court held both the quantity and the quality of the evidence to be insufficient. The court found fault with both of Nuchatlaht’s experts. The court was critical of Mr. Dewhirst for reaching conclusions without a firm basis in the evidence, for ignoring key evidence, and for inconsistencies in his opinion.** While not accepting all of their opinions, the court generally preferred the opinions of BC’s expert Dr. Kennedy. The court was also critical of Mr. Earnshaw for his failure to follow standard practices, including his failure to secure permits for his work.

>**This case suggests that there are risks in pursing a territorial claim based on recognized territorial boundaries without also providing evidence of use and occupancy throughout the territory (such as evidence of hunting, gathering, harvesting, ceremonial use, etc.)**

>**The outcome in this case may also indicate the peril of seeking to prove Aboriginal title without direct evidence from members of the claimant group. While expert witnesses and legal counsel can do much to present a claimant’s case, they are no substitute for the voices of the people from the community, who are able to provide an Aboriginal perspective grounded in oral history and lived experience, as opposed to through anthropological evidence.** That said, it is impossible to know whether and how this would have changed the result in the case without knowing what evidence from Nuchatlaht people was available or how the court would have received that evidence.

>In this case, the Nuchatlaht pursued a strategy of narrowing the scope of the claim in the hope of making the evidentiary burden manageable. While the decision not to adduce evidence of Nuchatlaht use and occupation of the marine environment made the evidentiary burden more manageable, it seems to have undermined the Nuchatlaht’s case by preventing the court from obtaining a more complete picture of Nuchatlaht culture and way of life in 1846.

*I guess those inconvenient „evidentiary standards“ just disappeared once the venue moved to the appeal phase. Wild how that happens.*