The Supreme Court of Canada marks the opening of the judicial year on Oct. 5. A hearing on the Nuchatlaht case has not yet been scheduled and likely wouldn't happen before next spring or possibly next fall.Justin Tang/The Canadian Press
The Supreme Court of Canada on Thursday agreed to hear an Aboriginal title case from British Columbia, where the provincial government is challenging the amount of land awarded to a small First Nation.
In 2024, the Nuchatlaht won Canada’s second-ever declaration of Aboriginal title on Nootka Island, on the western edge of Vancouver Island. But the lower court in B.C. at the time granted title to only a small portion of the Nuchatlaht’s claim.
In April this year, the B.C. Court of Appeal ruled the declaration of Aboriginal title applied to the Nuchatlaht’s entire claim: 201 square kilometres – more than a third of Nootka Island.
The Supreme Court’s decision to take the case comes amid a provincial election in British Columbia this month during which the array of Indigenous court cases involving Aboriginal title and other rights have vaulted such legal questions to the fore of public debate.
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The new case also lands as judges on the top court are saying yes to twice as many appeal applications than they had this decade. There had been criticism in the legal profession that the Supreme Court was not hearing enough cases.
On Thursday, the Nuchatlaht appeal was one of five the court agreed to hear, increasing the total of new cases this year to 48, the most since 2017.
A hearing on the Nuchatlaht case has not yet been scheduled and likely wouldn’t happen before next spring or possibly next fall.
The Nuchatlaht case centres around questions of what amounts to sufficient Indigenous occupation of land in the mid-1800s to establish Aboriginal title, when the British asserted sovereignty in the region, and how to delineate the geographic breadth of a claim if occupation of the land was variable.
The case will feature arguments over how courts apply the Supreme Court’s landmark Aboriginal title judgment in 2014, the Tsilhqot’in Nation ruling that marked the country’s first declaration of Aboriginal title to land in northwestern B.C.
Members of the Nuchatlaht First Nation and supporters rally outside the B.C. Supreme Court in March, 2022.DARRYL DYCK/The Canadian Press
In the B.C. government’s application to the Supreme Court to have its appeal of the Nuchatlaht ruling heard, the province cited a “time of intensifying Aboriginal title litigation in British Columbia and beyond” that urgently requires the consideration of the country’s top court.
The provincial government argued that the B.C. Court of Appeal’s backing of the full Nuchatlaht claim to 201 square kilometres amounted to a “loosening of the test for Aboriginal title” and that the original declaration to about 11 square kilometres should be restored.
Jack Woodward, counsel for the Nuchatlaht, said in an interview on Thursday that B.C.’s decision to appeal could backfire if the Supreme Court reaffirms the appellate-court ruling.
Mr. Woodward, who was one of the Tsilhqot’in Nation’s lawyers in 2014, also called on the next provincial government to pull out of the Supreme Court case and allow the B.C. Court of Appeal declaration of Aboriginal title to stand. The incumbent NDP is contesting a tight election against the opposition B.C. Conservative Party. The final day to vote is Oct. 24.
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“There’s no reason to continue with this,” Mr. Woodward said. “I would encourage a re-elected NDP government or the new government to think hard of whether they want to do this.”
The B.C. government declined to comment on Thursday, citing the election campaign and a government in caretaker mode with communication limited to critical health and safety information.
The Nuchatlaht is a small First Nation, with about 160 members. Its case for Aboriginal title did not include land claimed by other Indigenous groups or private land.
This is a contrast to last year’s Cowichan Tribes ruling at the trial court in B.C., which recognized Aboriginal title over about 800 acres of land in the Vancouver suburb of Richmond and sparked worries over implications for private-property ownership. There are multiple appeals planned in the Cowichan case for the B.C. Court of Appeal.
After the Nuchatlaht’s initial victory in 2024, winning Aboriginal title to a portion of their claim, the B.C. provincial government quietly gave up a portion of Nuchatlitz Park on the northwestern tip of Nootka Island as a result of that ruling.
In the B.C. Court of Appeal ruling this year, the judgment noted that the province’s Forest Act and Park Act no longer applied to the 201 square kilometres to which the Nuchatlaht won a declaration of Aboriginal title. That means public access to the park is no longer assured.