Aboriginal title case on Vancouver Island

 

In March 1778, Capt. James Cook arrived at the vil­lage of Yuquot, at the south­ern tip of Nootka Island off the cent­ral west coast of Van­couver Island.

It's the first recor­ded European land­ing on the shores of what would become Brit­ish Columbia.

Jerry Jack, a hered­it­ary chief of the Mowachaht/Mucha­laht First Nation and whose tra­di­tional name is Klak­wa­giila, says he always tells people this is where his com­munity's prob­lems star­ted.

In late 2024, the Mowachaht/ Mucha­laht filed a law­suit in B.C. Supreme Court seek­ing a declar­a­tion of Abori­ginal title to a large area that tracks inland from Yuquot, also called Friendly Cove, along Nootka Sound, and where the tiny com­munit­ies of Gold River and Tah­sis are loc­ated.

The area the Mowachaht/Mucha­laht are claim­ing Abori­ginal title to is 4,300 square kilo­metres of sparsely settled, for­es­ted area, includ­ing nearly 14 per cent of Van­couver Island's area.

Recently, a trial date was set for 2029 and nine months of court time has been set aside, poten­tially pla­cing the pro­ceed­ings among a hand­ful of lengthy and often pre­ced­ent-set­ting Abori­ginal title cases in B.C.

In its fil­ing, the Mowachaht/Mucha­laht says the province has infringed its Abori­ginal title by author­iz­ing log­ging, forestry roads and log hand­ling without fair com­pens­a­tion.

Sev­eral area-based tree-farm­ing and volume-based licences — which give com­pan­ies the right to har­vest tim­ber and also the respons­ib­il­ity to replant forests — cover much of the First Nation's claimed tra­di­tional ter­rit­ory.

A pulp and paper mill in Gold River closed in 1999 and the last cedar saw­mill in Tah­sis closed in 2001.

But log­ging con­tin­ues, with tim­ber sor­ted, graded and pre­pared at the Nesook Bay dry­land sort owned by West­ern Forest Products before being trans­por­ted to mills in B.C. or expor­ted.

The Mowachaht/Mucha­laht are seek­ing a declar­a­tion of title and infringe­ment, an account­ing and repay­ment of pro­vin­cial rev­en­ues from the claimed ter­rit­ory, and unspe­cified com­pens­a­tion and dam­ages.

The legal team rep­res­ent­ing the Mowachaht/Mucha­laht has not com­pleted cal­cu­la­tions on how much rev­enue went to the province, but estim­ates it is in the hun­dreds of mil­lions of dol­lars since log­ging star­ted in the 1950s, with bil­lions of dol­lars in tim­ber har­ves­ted.

In response to Post­me­dia ques­tions, the B.C. Min­istry of Forests declined to say how much tim­ber had been har­ves­ted and how much gov­ern­ment rev­en­ues were col­lec­ted.

“We never gave the land up. We never sur­rendered it,” said Jack, who is a mem­ber of the Mowachaht/Mucha­laht's coun­cil of chiefs.

He notes that when Cook landed there was an estim­ated 8,000 Mowachaht people (other estim­ates peg the pop­u­la­tion as lower), but now the com­bined pop­u­la­tions of the Mowachaht/ Mucha­laht peoples is about 600. About half live in the Gold River and Tah­sis areas, and one fam­ily lives in Yuquot.

Jack says they were dev­ast­ated by small­pox and other dis­eases and are still feel­ing the effects of gen­er­a­tions of chil­dren being sent to res­id­en­tial schools. “We're a poor nation. We shouldn't be a poor nation with all the resources that have been taken out of our ter­rit­ory. ... Get­ting recog­ni­tion and rights to our ter­rit­ory, we can be a wealthy nation,” he said. “It tears me up inside when I have to go to court and fight for something that was ours from the begin­ning of time.”

Jack said they don't want to stop forestry, but they want con­trol over resource extrac­tion. The Mowachaht/ Mucha­laht have also said they want to imple­ment a more sus­tain­able forestry model that bet­ter pro­tects the envir­on­ment.

Eamon Murphy, a law­yer with Wood­ward & Com­pany LLP, which is rep­res­ent­ing the Mowachaht/Mucha­laht, says a key issue the case seeks to prove is how much old growth has been removed, how areas such as fish-bear­ing streams have been degraded, and how the Mowachaht/Mucha­laht cul­ture has been affected though the loss of cedar stands that are sac­red to them.

“It's not just about the dol­lar fig­ures, it's dev­ast­ated the cul­ture and the live­li­hood of these people,” Murphy said.

None of the claims have been tested in court.

In its response in B.C. Supreme Court, the province has acknow­ledged that Abori­ginal title may exist within por­tions of the 4,300 square kilo­metres of claimed ter­rit­ory, but dis­putes the Mowachaht/Mucha­laht can estab­lish title over the entire area.

The province argues that First Nations must prove suf­fi­cient, exclus­ive occu­pa­tion dat­ing back to the mid1800s and a con­tinu­ing con­nec­tion, not­ing there are over­lap­ping claims with the Ehattesaht, K'ómoks, We Wai Kai and Wei Wai Kum First Nations.

B.C. also says it acted law­fully by author­iz­ing forestry and trans­fer­ring pro­vin­cial-land interests, and ful­filled con­sulta­tion and accom­mod­a­tion duties, and entered agree­ments with the Mowachaht/Mucha­laht that provided bene­fits.

Those included forestry rev­enue shar­ing agree­ments, which the Mowachaht/Mucha­laht say are tiny in com­par­ison to the amount of resources taken from their ter­rit­ory.

B.C. seeks to have the Abori­ginal title claim dis­missed and opposes provid­ing ret­ro­act­ive com­pens­a­tion.

Jack said he wanted to stress their title case is not seek­ing private land.

Jack said they are pur­su­ing court action because they don't want to end up with small pieces of dis­con­nec­ted land in their tra­di­tional ter­rit­ory. “Those are little blips. ... What we're claim­ing is what is right­fully ours.”