[1]         The Nuchatlaht claim Aboriginal title to a portion of Nootka Island located on the west coast of Vancouver Island. The Claim Area is approximately 201 square kilometers.

[2]         The plaintiff framed its claim to avoid the usual years-long trial of an Aboriginal title case. The claim does not encompass any private lands, Indian reserves, as defined in the Indian Act, R.S.C. 1985, c. I-5, or potential competing claims from the two neighbouring First Nations, the Ehattesaht and the Mowachaht/Muchalaht. The plaintiff does not claim the seabed, nor does it claim Aboriginal rights.

[3]         Virtually all the evidence in the trial was adduced through experts. No oral history evidence was relied on; the plaintiff said this evidence was not necessary because of the historic evidence showing its occupation of the Claim Area at the time of the assertion of sovereignty by the British Crown in 1846.

[4]         Shortly after the trial started, the plaintiff discontinued the action against Western Forest Products. While Canada participated, they did not take a position and their submissions were brief. As the owner of the lands being claimed, the Province was the main defendant.

[5]         Because of the limited scope of the claim, the lack of oral history evidence and the introduction of evidence exclusively through experts, this 54 day trial was likely the shortest one in Canada in which a declaration of Aboriginal title has been advanced, apart from the 1969 Calder case: Calder v. British Columbia (Attorney General), 1969 CanLII 713, 8 D.L.R. (3d) 59 (BC SC). It was also far shorter than Aboriginal rights cases that have been advanced before this court.

[6]         By comparison to the 54 days here, the trials in Delgamuukw v. British Columbia, 1991 CanLII 2372, 79 D.L.R. (4th) 185 (B.C.S.C.) [Delgamuukw BCSC] and Tsilhqot’in v. British Columbia, 2008 BCSC 600 [Tsilhqot’in BCSC] were each over 300 days in trial. The Ahousaht litigation, involving the Aboriginal right to fish was done in 2 phases: Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494 [Ahousaht Phase 1]; Ahousaht Indian Band and Nation v. Canada (Attorney General), 2018 BCSC 633 [Ahousaht Phase 2]. The first took 120 days and the second 150 days. Cowichan Tribes v. Canada (Attorney General), which is currently underway, has had 458 days of evidence thus far.

[7]         However, the shortness of this trial is not indicative of the density of the evidence, nor of the issues. The written arguments were well over a thousand pages combined. A condensed trial relying almost exclusively on experts and documents presents its own challenges, because of the bulk introduction of the evidence.

[8]         In this section I provide a brief background to the case and some of the issues that will be dealt with. A more complete list of the issues may be gleaned from the table of contents.

[9]         The Nuchatlaht are one of the Nuu-chah-nulth First Nations who occupy the west coast of Vancouver Island, from Cape Cook in the north to Point-no-Point (north of Sooke) in the south. The ethnographic literature and historic documents referred to the Nuu-chah-nulth as the “Nootkan” or “West Coast” people. They were also referred to as the “Aht”, which came from the suffix of many group names. “Aht” translates to “people of” or “dwelling at” and represents the places from which Nuu-chah-nulth Nations took their names.

[10]      In 1978, the Nuu-chah-nulth name was adopted. Prior to that there was no single term that the Nuu-chah-nulth used to refer to themselves collectively.

[11]      The Nuu-chah-nulth share a distinctive culture, however anthropologists recognized three broad groupings based mainly on geography, social organization and language: the northern, central and southern Nootkans. The Makah on the northwest coast of the Olympic Peninsula in Washington State are also Nuu-chah-nulth. Dr. Philip Drucker, in his 1951 book The Northern and Central Nootkan Tribes  (Washington: United States Printing Office, 1951) [Drucker 1951], which featured heavily in this case, included a map showing the distribution of the Nuu-chah-nulth along with their neighbouring Nations:

[12]      The Nuchatlaht were formerly known as the Tacisath and lived at Tahsis. In the 1780’s they moved from Tahsis to the village or area called nučaal, which is on the west coast of a peninsula on Nootka Island, between Esperanza and Nuchatlitz Inlets. (Nuu-chah-nulth people and outside observers have applied the term nučaal to both a place and a village.)

[13]      The legal backdrop may be summarised in one paragraph from Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 [Tsilhqot’in] at para. 50, the most recent Supreme Court of Canada case dealing with a claim for Aboriginal title:

[14]      It will be noted from the underlined portion of the quote that continuity of occupation is only required where the plaintiff chooses to use present occupation as a proxy for historic evidence of occupation at the time of the assertion of sovereignty. In this case, as I explained above, the Nuchatlaht seek to prove their occupation at the time of assertion of sovereignty from the historical record, hence the lack of oral history evidence.

[15]      The date for the assertion of sovereignty over British Columbia has generally been accepted as 1846. However, the Province challenged that for Nootka Island. I deal with that issue below at para. 73, but will say here that I have concluded the date is 1846.

[16]      As I said above, the Nuchatlaht moved to the area in the 1780’s and therefore archaeological evidence prior to then is not directly relevant. This contrasts with Aboriginal title claims based on occupation since time immemorial.

[17]      The following satelite photo shows the Claim Area and (in the inset) its location on Vancouver Island. (A map of the Claim Area with settlement sites and other details is set out below, following para. 454).

[18]      Being a marine-oriented and coastal People, Nuchatlaht villages and settlements were on the coast in parts of the Claim Area. Although the northern border of the Claim Area ends at the south shore of Espernaza Inlet, there were also Nuchatlaht villages north of the Inlet.

[19]      The plaintiff’s notice of civil claim is brief. Beyond describing the Claim Area, it contains only three factual allegations:

[20]      In its response, the Province made the following admision and denial (amongst others):

[21]      As the admission indicates, there is no dispute the current Nuchatlaht are descended from a historical group identified as Nuchatlaht who resided in the Claim Area at least as far back as 1846. However, the Province denies the Nuchatlaht occupied the totality of the area. In partial response to that denial, the plaintiff says that this is a territorial claim and relies, in part, on what it argues was a recognised boundary to its territory.

[22]      By 1846, the Nuchatlaht was a confederation consisting of several local groups, each with their own villages. In the summer, these groups gathered at Lūpȧtcsis, about one kilometer south of nučaal, for sea hunting and fishing. The nature of the confederacy, and whether that is an accurate term, was in dispute and I use the word neutrally, without implying any specific characteristics.

[23]      Land and resources were owned by the Chiefs of the local groups. The local groups have long since been absorbed into the larger collective. The Province says because of the local group ownership, the Nuchatlaht are not the current or historic rights holder. Local group ownership is also related to the question of which areas were occupied. The Province says there is no evidence with respect to local group boundaries and that it cannot be assumed their territories constituted the whole of the Claim Area.

[24]      A related issue is whether some of the local groups joined the Nuchatlaht before or after 1846 and, if the Nuchatlaht is the proper title holder, whether the claim can be based on the terriorial holdings of local groups which joined after 1846. One local group that the parties focused on was the Shuma’athat, who resided at the head of the Inner Basin of Nuchatlitz Inlet and at the narrows between the Inner Basin and Mary Basin.

[25]      The evidence of occupation and use of the interior Claim Area was largely dependant on the evidence with respect to the coastal Claim Area. Coastal occupation was primarily demonstrated by historic documents showing settlement sites. The plaintiff sought to prove the use of the interior Claim Areas, in which there were no settlements, through evidence of culturally modified trees (“CMTs”). CMTs are trees which have been modified (for example, bark-stripped) for traditional purposes such as the building of canoes and dwellings, and the making of clothing and baskets, amongst other things.

[26]      CMTs can be dated, but the groups that made the modifications cannot be identified from the trees themselves. For example, there is nothing to indicate whether a tree was modified by the Nuchatlaht or the Ehattesaht. The plaintiff says that because they have shown the Nuchatlaht occupied the coast, I should draw the inference that all CMTs were done by them.

[27]      The plaintiff also relied on CMTs to a more limited extent to show occupation of the coastal area. Once again, the plaintiff asked me to draw the inference that they were created by the Nuchatlaht largely because of their proximity to Nuchatlaht village sites.

[28]      A few comments on the form of these reasons. Because there is an overlap in the facts and law relating to the various issues, there is some repetition in these reasons. If there was a choice to be made between repetition and potential lack of clarity, I have opted for the former.

[29]      The spelling of local sites, local groups and other Nuu-Chah-Nulth terminology will be seen to be inconsistent. In large part this flows from the different spellings in the documents. Where I paraphrase from a document, I generally use the spelling from it.

[30]      Where I quote a historical document which was footnoted by an expert, I have usually left the footnote in, in case a reader is interested in locating the source.

[31]      Where it aids with historical context, or where I paraphrase a historical document, I use the word Nootkan as opposed to Nuu-chah-nulth. No disrespect is intended.

[32]      I also use the terms Aboriginal, Indian, Indigenous and First Nation throughout these reasons, as they are used within legislation, the common law and commonly accepted modern terminology. Again, no disrespect is intended.

[33]      Aside from the subject of CMTs, most of the evidence came from historical documents introduced through experts who interpreted the documents and supplemented them with their own anthropological or archaeological opinions. Several cases have recognised the court needs the assistance of an expert to determine the context, admissibility, weight and interpretation of historic documents in Aboriginal title cases. See, for example: William v. British Columbia, 2004 BCSC 1237 at paras. 10-12 and Cowichan Tribes v. Canada 2019 BCSC 1986 at para. 47-48.

[34]      The experts who addressed the ethnographic and historical record were:

[35]      As I noted, to show the use and occupation of the Claim Area, particularly the non-coastal or inland area, the plaintiff relied on the existence of CMTs and, to a lesser extent, on archaeological sites. The experts who dealt with this were:

[36]      The historical records introduced by the parties through their experts or notices to admit included:

[37]      Many of the explorer records introduced in this case were referred to by Garson J. in Ahousaht Phase 1 and, to a lesser extent, by Kent J. in Thomas and Saik’uz First Nation v. Rio Tinto Alcan Inc., 2022 BCSC 15 [Saik’uz].

[38]      The principles relating to the admissibility of explorer records were addressed by Garson J. in a separate decision in the Ahousaht litigation and by Young J. in the Cowichan Tribes litigation: Ahousaht v. Canada 2008 BCSC 768; Cowichan Tribes v. Canada, 2020 BCSC 1146. I will not repeat what was said in those judgments.

[39]      Admissibility was generally not an issue in this case and both sides relied on the records. Any challenges to reliability were done on an individual document basis as opposed to a class of documents.

[40]      The experts relied on work done by earlier anthropologists and ethnologists. Most notable was the monograph by Dr. Drucker, The Northern and Central Nootkan Tribes, which I referred to in the introduction. While the publication date was 1951, it was based on his field observations in 1935-1936. The break between the field work and the publication was due to Dr. Drucker’s service in World War II.

[41]      Dr. Kennedy described Dr. Drucker’s work as follows:

[42]      In the 1970’s, Dr. Kennedy located Dr. Drucker’s field notes at the National Anthropological Archives of the Smithsonian Institution’s National Museum. She photocopied and deposited them at the Royal B.C. Museum B.C. Archives (“B.C. Archives”) and at the Canadian Museum of Civilization (then called the Museum of Man) in Ottawa. These notes were relied on by Dr. Kennedy.

[43]      As Dr. Kennedy noted in the above quote, Dr. Drucker’s goal was to describe Nuu-chah-nulth culture as at 1870 to 1900, his “ethnographic time horizon”.

[44]      Mr. Dewhirst placed particularly heavy, and largely uncritical, reliance on Dr. Drucker. The other experts were more circumspect, noting some of the limitations of his work.

[45]      In his monograph, Dr. Drucker said the Nootkans were politically organised into a confederacy of tribes, which in turn comprised local groups. However, Dr. Drucker revisited this in a paper presented at the annual meeting of the American Ethnology Society in 1979, in which he agreed with the thesis that the “basic and only political unit in native Northwest Coast culture was the local group”. The paper was published in 1983: Drucker, Philip (1983) Ecology and Political Organization on the Northwest Coast of America. PP. 86- 96 in, The Development of Political Organization in Native North America. 1979 Proceedings of the American Ethnological Society. Edited by Elizabeth Tooker (“Drucker 1983”).

[46]      The Nuchatlaht only occupied two pages of text in Drucker’s book. Nevertheless, there was no debate there was a great cultural commonality amongst the Nuu-chah-nulth peoples.

[47]      Dr. Kennedy relied on recordings of ethnographic interviews with Nuchatlaht and Ehattesaht Elders conducted in the 1970s-1980s by staff members of the Royal B.C. Museum.

[48]      Both Mr. Dewhirst and Dr. Kennedy relied on “the Chief’s Book”. This was obtained by Dr. Kennedy in 1978. The Chief’s Book provides a perspective on the composition of local groups and lineages seated at Nuchatlaht and Ehattesaht potlatches in 1944 and 1960. Dr. Kennedy opined that the book reflected the views of Chief Felix Michael and was added to over time. While Dr. Kennedy was not aware of who compiled the information, anthropologist Richard Inglis had noted in 1987: “Mrs. Matthew John – Felix Michael’s dau[ghter]; wrote book.”

[49]      To put a time frame on the Chief’s Book, Felix Michael was born in about 1896 and became Chief of the Nuchatlaht in about 1914. Chief Michael was Dr. Drucker’s principal Nuchatlaht informant. Chief Michael was a descendant of individuals in the area who identified as Nuchatlaht in, and prior to, 1846.

[50]      Dr. Lovisek questioned the reliability of the Chief’s Book, because its provenance is unknown, it has missing pages and there is a gap between the entries of names and seats between 1946 and 1964. She noted that Dr. Drucker referred to the book uncritically. I agree with those comments.

[51]      There are a series of tape-recorded interviews with Nuchatlaht Elders that are held by B.C. Archives. Dr. Kennedy and another anthropologist, Randy Bouchard, listened to and translated some of them. In her evidence, Dr. Kennedy referred to some of the translations and suggested the remaining tapes could provide valuable information if they were translated.

[52]      Several of the interviews were with Lillian Michael, conducted in 1979 and 1981. Ms. Michael was the widow of Chief Felix Michael and was an Elder of both the Nuchatlaht and Ehattesaht. Although Mr. Dewhirst did not refer to the interviews, he agreed Ms. Michael was a valuable source.

[53]      The Province was critical of the plaintiff not having translated the tapes. It initially argued an adverse inference should be drawn from that. In oral argument the Province, I think correctly, backed off that argument. The tapes were not uniquely available to the plaintiff; either side could have had them translated. A plaintiff may choose the evidence it wishes to prove its claim.

[54]      As I mentioned earlier, the plaintiff did not call any oral history evidence – or oral evidence at all. This means that the only evidence I have of the Aboriginal/Nuchatlaht perspective is through anthropological evidence, primarily that of Dr. Drucker’s work.

[55]      Both sides initially took the position that most of the opposing reports were inadmissible, and, as I said, the Province brought an unsuccessful pre-trial motion to exclude Mr. Earnshaw’s reports. At my suggestion, and with agreement of counsel, all the experts testified with respect to the reports on the basis that I would rule on the reports’ admissibility as part of this judgment.

[56]      The objections to admissibility were, for the most part, arguments that the reports were so flawed for one reason or another that they should not be admitted. In other words, the admissibility objections were often related to the content of the report and the quality of the opinions. Where objections were made to qualifications, it was with respect to parts of the reports, i.e. that in some parts of their opinions, the experts had exceeded the scope of their expertise.

[57]      To canvass the issues raised in a voir dire would have taken the same amount of time and effort as leading the full evidence and cross-examining on it. It would have involved making findings that are better left to making after hearing all the trial evidence. An adverse ruling would not have saved the opposing party from obtaining a responding report, because all the responding reports had been prepared and exchanged.

[58]      By the time of closing arguments it was acknowledged the reports met the admissibility threshold, except for those of Dr. Lovisek. However, it was argued by both sides that the other opposing reports should be given little or no weight.

[59]      Turning to the admissibility of Dr. Lovisek’s reports, the plaintiff mounted an attack not only with respect to the content of her reports in this trial, but with respect to reports she prepared for other cases. The plaintiff referred to remarks made on those reports by judges, and by an academic who said he had been misquoted in a report for another trial. That approach was properly objected to by the Province. Other criticisms of Dr. Lovisek’s reports included “citational padding” and partial quoting.

[60]      I disagree Dr. Lovisek’s reports do not reach the threshold of admissibility, or that, in their entirety, they should be given no weight and disregarded. Rather, for the reasons that follow, I conclude the appropriate approach to all of the experts is for me to assess the weight of the experts’ opinions with respect to each discrete issue that they have opined on, and which I consider to be relevant.

[61]      It is important to understand the nature and scope of Dr. Lovisek’s reports, as well as those of Mr. Dewhirst and Dr. Kennedy. While they are expert opinions, they provide the facts of this case. The plaintiff adduced no oral history evidence and sought to prove their claim by way of the historic record and ethnographic evidence. It was the experts who introduced and discussed that record.

[62]      Because the reports provided the facts of the case, their scope was vast. I contrast the reports here with, for an example, an engineering report that opines on a product defect, and proffers a single opinion. Here, Mr. Dewhirst was tasked by the plaintiff with answering 74 questions in his initial report. In other words, he was asked to provide 74 opinions.

[63]      Drs. Kennedy and Lovisek were asked fewer, but much broader questions. Dr. Lovisek was asked:

[64]      The questions posed to Dr. Kennedy were similar in scope. However, to reach their conclusions, Drs. Lovisek and Kennedy had to provide opinions on the interpretation of multiple documents and sub-issues. In fact, their conclusory opinions were so broad that they were not nearly as helpful as the discrete issues they elucidated.

[65]      It is also worth noting that the plaintiff itself, in many instances, relied on the evidence of Drs. Kennedy and Lovisek. Further, much of what they said was non-controversial. To ask that Dr. Lovisek’s report be excluded in its entirety, and that little weight be given to Dr. Kennedy’s opinions, is overly exuberant.

[66]      Finally, I add that if I took the approach the plaintiff asks me to take with Dr. Lovisek, Mr. Dewhirst’s report would be equally, if not more, vulnerable. For example, as I detail below, he inexplicably ignored Dr. Drucker’s 1983 paper, although he presented himself, in effect, as an expert on Dr. Drucker’s work. In addition, Mr. Dewhirst tended to make broad generalisations without any foundation.

[67]      In summary, none of the reports, including those of Dr. Lovisek, can be treated as a unitary or single opinion. There has been no “knock-out punch” to justify giving no weight to an entire report. Similarly, none of the reports are flawless. As I have said, in my view, the appropriate approach is to assess the weight of each expert’s opinion with respect to each discrete issue.

[68]      The parties agree the Nuchatlaht’s most basic level of social and political organization were the local groups. Local groups formed tribes and the tribes formed into a larger level of organization, which Dr. Drucker in 1951 referred to as a confederacy. There was no Indigenous equivalent of the terms tribe and confederacy. These were concepts used by Dr. Drucker and other anthropologists to describe the social structure he observed.

[69]      As I mentioned earlier and will return to later, Dr. Drucker revisited the issue in his 1983 paper in which he questioned the appropriateness of the term confederacy and the political function he attributed to it in 1951. I will continue to use the term, but in a neutral sense so as not to imply any specific political function.

[70]      The Province argues the plaintiffs have pleaded and advanced through to argument what the Province calls a “one territory, one collective” case. In other words, that the Nuchatlaht were one collective in which the Chief of the confederacy owned and controlled the entirety of the Claim Area. The Province argues the reality was that territory and resources were owned at the local group level, which the plaintiff has not pleaded, and therefore this cannot be the basis for plaintiff’s claim without an amendment.

[71]      In response, the plaintiff says the Province has misconstrued its argument, which has always been that the ownership of territory and resources was vested primarily in the Head Chief at the local group level. It says what it does argue is that the Nuchatlaht occupied the Claim Area at sovereignty as a collective with a shared identity and the Nuchatlaht were an alliance of smaller tribes which were comprised of local groups. Whether the Nuchatlaht were a confederacy or a federation, or another term, does not matter because the Nuchatlaht were an identifiable community in 1846 which was the antecedent to the modern-day Nuchatlaht.

[72]      I do not agree with the Province’s characterisation of the plaintiff’s notice of civil claim. For better or worse, it does not go into any detail as to the structure of ownership within the Nuchatlaht. Nor was the evidence based on ownership at the confederacy or higher political level. While the reports of Mr. Dewhirst and the plaintiff’s argument stressed the existence and significance of a confederacy, including the authority of its Chief, they did not claim ownership was at the confederacy level. In fact, Mr. Dewhirst said resources, including territory, were owned at the local group level. The same applies to the plaintiff’s arguments. I therefore do not see a pleading issue here which would require an amendment.

[73]      A determination of a claim for Aboriginal title is based on occupation by the claimant group at the time of assertion of sovereignty by the British Crown over the territory in question. As I outline below, previous cases have taken British sovereignty over British Columbia to have been asserted by the 1846 Oregon Boundary Treaty. That treaty divided the United States and British territory west of the Rockies at the 49^th parallel, except for the part of Vancouver Island south of the 49^th parallel, which was left in British hands.

[74]      In its further amended response, the Province pleads:

[75]      Throughout the trial, the Province’s position was that the date of sovereignty “could be as early as 1790”, without advocating for any specific date.

[76]      In argument, the Province again avoided being specific and mooted several possible dates. It also said there were two possible outcomes to this decision where a determination as to the date might not be necessary.

[77]      This is not a satisfactory approach for two reasons. First, for an important issue in a significant case, the Province ought to advance a clear and fully argued position, as I invited it to do multiple times before and during the trial. This is particularly so given the acceptance of 1846 as the appropriate date in other cases.

[78]      Second, the Province’s questions posed to Drs. Kennedy and Lovisek were all in relation to the facts on the ground “prior to, at, and around 1846”. Their opinions were largely focussed on 1846. In other words, the temporal focus of the Province’s evidence was 1846. It is unworkable and unfair to present the case in this manner and then hold out in argument for another, undefined, possible date. (The plaintiff’s experts were also all asked to address their opinions as at 1846.)

[79]      As I mentioned, all prior decisions have accepted 1846 as the date of assertion of sovereignty for all British Columbia, although, of course, they each concerned different areas of the province. I will outline those cases.

[80]      I start with the seminal case of Calder et al. v. Attorney-General of British Columbia, [1973] SCR 313, 1973 CanLII 4, which involved the Nass Valley. The Supreme Court of Canada said (at pp. 325-326) that:

[81]      In Delgamuukw BCSC, at p. 402-406, McEachern C.J. did not find it necessary to make a specific finding as to the actual date of British sovereignty. He suggested it could be anywhere from 1803 to 1846, but acknowledged that “[t]he Oregon Boundary Treaty, 1846, has been judicially accepted as establishing, conclusively, British sovereignty over what is now British Columbia”.

[82]      On appeal, the date of sovereignty was not a contentious issue. In Delgamuukw v. British Columbia, 104 D.L.R. (4th) 470 (B.C.C.A.),1993 CanLII 4516 [Delgamuukw BCCA], the B.C. Court of Appeal said, at para. 708: “Throughout this appeal, all counsel seemed content to treat 1846 as the date of British Sovereignty in British Columbia. I propose to do so too”. The court did note that “[a]s a settled colony, the common law in British Columbia automatically came into force in 1846 when the Oregon Boundary Treaty established Britain’s exclusive sovereignty north of the 49^th parallel” (at para. 372).

[83]      The Supreme Court of Canada did not deal with the issue on appeal and simply noted that: “McEachern C.J. found, at pp. 233-34, and the parties did not dispute on appeal, that British sovereignty over British Columbia was conclusively established by the Oregon Boundary Treaty of 1846.” Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 1997 CanLII 302 [Delgamuukw] at para. 145.

[84]      In Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, although the date of sovereignty was not in issue, the Supreme Court of Canada again made specific reference to 1846 as the date of sovereignty in British Columbia:

[85]      In Tsilhqot’in BCSC, both the plaintiff and British Columbia treated 1846 as the date of sovereignty, but Canada disagreed. Canada argued that “assertion of sovereignty”, “sovereignty” and the “conclusive establishment of sovereignty” (all of which had been referred to by Lamer C.J.C. in Delgamuukw) were distinct concepts. While Canada suggested 1846 was the date of “conclusive establishment of sovereignty”, it argued the court must focus on the “assertion of sovereignty”. Like the Province in the case at bar, Canada proposed a range of possible dates for the assertion of sovereignty, from 1579 to 1829, taking the position that the most compelling date was 1792, the date Captain George Vancouver made a formal assertion on behalf of King George III.

[86]      Vickers J. concluded 1846 was the date to be used for the assertion of sovereignty, or its actual establishment, in British Columbia. He also concluded that this point was too well entrenched in the case law to allow him to reconsider it, saying:

[87]      Recently, in Saik’uz at para. 256, Kent J., considered that Tsilhqot’in had established 1846 as the date of sovereignty, although the parties before him had agreed on that point.

[88]      While these cases involved different areas of the province, the judgments were phrased as 1846 applying to the province as a whole.

[89]      Even if I were not bound by the earlier decisions on the basis that they were limited to the area in question, I would be bound by the underlying legal rational that Vickers J. based his ruling on in Tsilhqot’in BCSC. I will turn to that now in greater detail.

[90]      In Tsilhqot’in BCSC, Vickers J. drew the distinction between assertion of sovereignty and the establishment of sovereignty. Addressing Canada’s argument that the most compelling date for assertion of sovereignty was Captain George Vancouver’s formal assertion on behalf of King George III in 1792, Vickers J. said:

[91]      Earlier, Vickers J. referred to international law:

[92]      The Supreme Court has used the terms “assertion of sovereignty” and “sovereignty” interchangeably. For example, in Delgamuukw, there are the following three examples:

[93]      Lambert J.A. in Delgamuukw BCCA took care to state that mere assertion of sovereignty was not sufficient. Referring to Pasco v. Canadian National Railway Co., (1989), 56 D.L.R. (4th) 404, 1989 CanLII 249, he said:

[94]      In a situation where several colonial powers are vying over the same territory – as was the case for Nootka Island and beyond – mere assertion of sovereignty hardly sets a satisfactory criterion for the acquisition of “radical title” by a power.

[95]      It therefore appears to me that the jurisprudence, international law and logic all lead to the conclusion that despite the use of the phrase “assertion of sovereignty”, actual establishment of sovereignty is required and not its mere assertion.

[96]      Turning back to the present case, although, as I have said, the Province proposed several possible dates, it appeared to emphasize 1792. This was based on the Nootka Conventions and the assertion of sovereignty by Captain George Vancouver, alluded to by Vickers J. above.

[97]      The declaration by Captain Vancouver was barely alluded to in this trial, and I therefore cannot elaborate on it. As seen above, Vickers J. explicitly rejected Captain Vancouver’s declaration as a basis for the establishment of sovereignty.

[98]      The three Nootka Conventions dealt with competing claims between Spain and England over areas of the Pacific. The historic context was described in a PhD thesis by William Manning, The Nootka Sound Controversy, published in 1905:

[99]      The “incident’ Manning referred to was the seizure of an English vessel in Nootka Sound by Spaniards.

[100]   On the Province’s own argument, the treaty did not result in exclusive sovereignty for Britain. The Province said:

[101]   In her testimony, Dr. Lovisek agreed the Nootka Convention left the issue of sovereignty unresolved. She suggested sovereignty was not established until 1846, saying:

[102]   I take this as an opinion on history and not law, which Dr. Lovisek would not be able to provide.

[103]   The texts of the Nootka Conventions support this view:

[104]   The 1794 Convention, therefore, did quite the opposite of declaring sovereignty, much less establish it.

[105]   Consequently, I conclude from a factual and legal point of view, the date for the assertion of sovereignty coincides with the establishment of sovereignty and that occurred in 1846 with the Oregon Treaty.

[106]   I do not rest my decision on this, and would reach the same conclusion without this comment, but note there are at least two benefits to 1846 being the date of assertion of sovereignty or establishment of sovereignty for the whole province. First, it is preferable not to litigate the matter in each Aboriginal title case. Proving history is not a simple or speedy matter. It requires experts on both sides. All Aboriginal title litigants would benefit from a unitary date for the province.

[107]   Second, the Heritage Conservation Act R.S.B.C. 1996, c. 187 [Heritage Conservation Act], protects archaeological sites estimated to pre-date 1846. That date was presumably not pulled from the air. I do not say that it legislates the date of sovereignty, but it does establish a date for the protection of sites from which evidence of Aboriginal title is frequently garnered.

[108]   Having concluded the date for the assertion of sovereignty or establishment of sovereignty is 1846, I will refer to that date in the balance of this judgment, rather than continuing to use the phrase “date of the assertion of sovereignty”.

[109]   Dr. Drucker defined the local group as the fundamental political unit of the Nuu-chah-nulth Peoples:

[110]   He went on to say the local groups formed tribes:

[111]   In his 1951 monograph, Dr. Drucker said the tribes formed confederacies. The confederacy was based on the same ties that cemented local groups into a tribe: a fixed ranking of local group Chiefs, a collective name and a common village site. The First Chief of the Confederacy owned the summer village and granted house sites to Chiefs of local groups. As I said earlier, the issue of the confederacy and what it entailed is contentious, and I will return to it below.

[112]   Each local group had an inherited position of Chief. A Chief’s brother or son inherited subsidiary chief positions. Relying on Dr. Drucker, Mr. Dewhirst said that in tribes and confederacies the Chiefs of local groups were ranked largely in order of seniority in the order that they became part of the confederacy. The Chief owned and managed his territory and all its resources for the benefit of his group.

[113]   Dr. Drucker and later anthropologists observed that the groups moved villages in a “seasonal round” so they could take advantage of seasonal marine resources. Mr. Dewhirst described the seasonal round as follows:

[114]   However, according to ethnohistorian Dr. William Folan, not every group engaged in a seasonal round. Local groups considered local group sites “to be of greatest importance to the local group and to be their real homes.”

[115]   The Nuu-chah-nulth were observed to have a highly sensitized concept of ownership. I will return to this below, at para. 261, when I deal with exclusivity of occupancy.

[116]   While the Nuu-chah-nulth were a coastal society, they made use of the forest to support their existence. Dr. Drucker said:

[117]   The nature of the Nuchatlaht confederacy was a major issue between the parties. While the plaintiff did not claim it owned the land or resources, the nature of the confederacy was central to its argument regarding the proper rights holder. The plaintiff argued the confederacy had political authority. The Province challenged that. In response, the plaintiff said it did not matter what type of authority the confederation had, because by 1846 there was an identifiable Nuchatlaht group who shared a common culture.

[118]   The question of when the confederation was formed is not a significant one, as the experts agreed it was likely formed by 1846. Mr. Dewhirst said it was formed prior to 1785. Dr. Lovisek said it had formed after 1800, likely before 1846. Dr. Kennedy stated the Nuchatlaht were comprised of independent local groups, some of whom amalgamated or were absorbed in the first half of the 19th century, and others who joined in the late 1800s.

[119]   I set out above (at para. 109)  Dr. Drucker’s conception of local groups and tribes. To re-cap, the local groups were the basic level of “polity”, centred on a family of Chiefs. The local groups formed tribes through the possession of a common winter village. The village was owned by the First Chief. Tribes often took their name from the dominant local group or winter village.

[120]   Tribes were, in turn, united into a confederacy and had a common summer village. Dr. Drucker said:

[121]   Mr. Dewhirst points out that the First Chief of the confederacy owned the summer confederation village. He says the Nuchatlaht confederacy village was in the northwestern portion of the Claim Area, at the village of Lūpȧtcis. It later moved to the nearby site of nūtcȧL, for reasons which are not known. Both sites later became Nuchatlaht Indian Reserves. I do not think that is contentious.

[122]   As stated previously, Dr. Drucker re-visited his prior view of the political organization of the Northern Nootkans (Nuu-chah-nulth) in a paper that was published in 1983. He stated:

[123]   In the last page of the paper, Dr. Drucker said:

[124]   A glaring omission in Mr. Dewhirst’s first report was not mentioning Dr. Drucker’s 1983 paper. Mr. Dewhirst carried the omission into his second report dealing with CMTs, where he continued to refer to the confederacy as a “sociopolitical organization” without reference to Drucker 1983.

[125]   Mr. Dewhirst presented himself as an expert on Dr. Drucker. It is difficult to understand why he did not refer to Drucker 1983 in his initial report given the time Mr. Dewhirst spent on the confederacy and its importance to the issues as presented by the plaintiff. I find this negatively affects the weight of his evidence.

[126]   Once Drucker 1983 was raised by the Province, Mr. Dewhirst took the position that Dr. Drucker was merely suggesting a change in terminology. In argument, using a turn of phrase, the plaintiff argued that: “what’s in a name? That which we call a confederacy by any other make would be as sweet”.

[127]   Mr. Dewhirst testified:

[128]   He went on to say that Drs. Lovisek and Kennedy failed to appreciate the article was dealing with semantics only and took the article as ethnographic evidence.

[129]   Drs. Lovisek and Kennedy disagreed. They cited, with approval, a 1983 article of another anthropologist, Leland Donald, published in the same volume as Drucker 1983 (and so presumably delivered at the same conference). Mr. Donald suggested a more appropriate word than confederacy would be federation. The main point here is that he echoes the substantive conclusions of Drucker 1983, who did not himself propose an alternate term:

[130]   I do not accept that Drucker 1983 was a mere re-visiting of terminology. I think that is apparent from the above quoted passages from it. It is also apparent from the balance of the paper. For example, at the outset of the paper, Dr. Drucker said:

[131]   Dr. Drucker went on to discuss the design of a study to test the following hypotheses, which the paper appears to have concluded was affirmed:

[132]   Dr. Drucker said the study had devised a set of criteria to be applied to the local groups. These were:

[133]   Dr. Drucker concluded:

[134]   He then went on to consider what he called the basic problem for his paper: what area-wide factors contributed to the local groups’ functioning and stability.

[135]   Turning back to Mr. Dewhirst, in his response report, he said:

[136]   That also is not apparent from the paper itself. The distinction between absolute power and something less was not mentioned in Drucker 1983. Had he meant to make that distinction it would have been easy enough for him to have done so.

[137]   In support of his opinion, Mr. Dewhirst cited extensively from Dr. Drucker’s 1951 monograph. The difficulty here is that Mr. Dewhirst used Dr. Drucker’s earlier work to argue with Dr. Drucker’s later work. Mr. Dewhirst added nothing of his own to further his analysis.

[138]   The plaintiffs say that a purchase made by John Kendrick in 1791 demonstrates the confederation had political power. I deal with Kendrick’s purchase later in the context of when the Shuma’athat joined the confederation. I will say here that I do not accept it detracts from Dr. Drucker’s 1983 position.

[139]   I therefore conclude that the confederation was not a political unit.

[140]   As I have mentioned, the evidence dealing with the inland Claim Area largely depends on inferences to be drawn from the occupation of the coastal Claim Area, where all the Nuu-chah-nulth and hence Nuchatlaht settlements were located. I will deal first with the coastal Claim Area.

[141]   The settlements in the Claim Area were occupied by different local groups. For some of them, there is a factual issue as to whether they were part of the Nuchatlaht in 1846 or merged with them at a later point. As some of the experts noted, interpreting historical documents is made more difficult by the fact the local groups took their names from the villages they occupied. It is therefore sometimes questionable whether the historic records refer to group names or site names.

[142]   For local groups which joined later than 1846, there is a legal issue as to whether their area of occupation can be included in the claim by the Nuchatlaht.

[143]   The evidence concerning the identity of local groups and their areas of occupation was often presented separately, which makes for another complicating factor. I will deal with them separately, but the two are tied together in the map following paragraph 454 and the accompanying analysis.

[144]   The starting point for the plaintiff and Mr. Dewhirst on the occupation of the Claim Area in 1846 was a map in Dr. Drucker’s book (“Map 3”). The following is an enhanced version of the map:

[145]   As noted earlier, Dr. Drucker did his field work from 1935-1936 and he expressly limited the “time horizon” in his book to the period between 1870 to 1900. He noted:

[146]   In spite of that, Mr. Dewhirst said the time horizon was not meant to apply to the map and that it is accurate at least as far back as 1846. However, that is not stated by Dr. Drucker, nor is there anything from which that can be inferred. In my view, Map 3 must be given the same time horizon as the book’s narrative.

[147]   Dr. Drucker’s Map 3 identifies a total of eight Nuchatlaht village sites within the Claim Area, including: two summer village sites (one older, one more recent); one winter village; and five local group villages. In 1889, many of these sites became Indian Reserves, which I set out below at para. 159.

[148]   The former Nuchatlaht summer confederacy village was located at Lūpȧtcsis on the north side of the entrance to Nuchatlitz Inlet, which Dr. Drucker identified as site #30. Mr. Dewhirst noted that this site provided all Nuchatlaht groups with access to “outside” fish and sea mammal resources.

[149]   The Nuchatlaht moved their summer village to the nearby site of nūtcȧL, which Dr. Drucker identified as site #20. Dr. Lovisek said nūtcȧl was likely the ‘town’ where the Nuchatlaht resided on or before 1789. Mr. Dewhirst said that in the late 19th century, nūtcȧL (“Nuchatlitz”) replaced Lūpȧtcsis as the confederacy summer village. The reasons for the relocation are not clear.

[150]   Map 3 shows the village of apȧqtū as site #19 in a sheltered location at the head of Port Langford. According to Dr. Drucker, apaqtū was an old winter village where the people from Nuchatlitz Inlet wintered.

[151]   Yūtckhtōk (site #26), located at the narrows of the Inner Basin on Nootka Island, was, according to Dr. Drucker, the local group village of the La’isȧth local group.

[152]   Cō’ōma (site #27), located at the innermost point of Nuchatlitz Inlet, was the local group village of the Shuma’athat local group. I will return to this group later.

[153]   Ō’astea (site #22) was a local group “inside” village located on the northern side of Nootka Island. This was set aside as Indian Reservation #6 in 1889. According to Chief Felix Michael (referred to above at para. 48), this village was included within the hahoulthle (the territory and all resources within it) of the tacīsȧth chief. Dr. Kennedy said:

[154]   Tca’ła (site #25) was a local group “inside” village on the north side of Nootka Island, located at the mouth of Broderick Creek, somewhat to the northeast of Ō’astea.

[155]   Aqī (site #24) was identified by Dr. Drucker as a Nuchatlaht site, however, Dr. Kennedy concluded she could not be sure whether it was owned by a local group which was associated with the Nuchatlaht at 1846, or amalgamated with the Nuchatlaht after 1846, or amalgamated at all.

[156]   Dr. Lovisek concluded that Aqī was not in existence prior to 1846, and noted there is no record of a request to make it into a reserve. Mr. Dewhirst simply adopted Map 3 and said Aqī was a Nuchatlaht site in 1846, although 1846 was outside of Dr. Drucker’s time horizon. Mr. Dewhirst also relied on the Chief’s Book (above para. 48), but as I remarked above it its reliability for events going back to 1846 is doubtful.

[157]   Dr. Drucker identified four other Nuchatlaht sites which are located outside the Claim Area. Three of these are north of Esperanza Inlet:

[158]   The fourth site which is outside the Claim Area, tcisyō’qwis (Drucker site #23), is on the east shore of Catala Island, to the northwest of Nootka Island. This village was important for access to deep sea marine resources of fish and sea mammals.

[159]   As I said above, many of the above sites identified on Map 3 became Indian Reserves allotted to the Nuchatlaht. Although the plaintiff does not claim the reserves, evidence regarding their creation is relevant to show, in part, areas of occupation.

[160]   On June 28, 1889, Indian Reserve Commissioner Peter O’Reilly met at Port Langford with Chief Tle-nen-o-ou-ick of the Nuchatlaht and Chief Maquinna of the Ehattesaht. At O’Reilly’s urging, the Chiefs selected thirteen sites to be set aside as Indian Reserves – nine for Nuchatlaht, and four for Ehattesaht. O’Reilly described these sites as “small fishing stations”. The sites selected by Nuchatlaht all correspond with traditional village sites identified by Dr. Drucker.

[161]   The nine Indian Reserves allotted to the Nuchatlaht in 1889 were:

[162]   The McKenna-McBride Commission was established in 1913 to address First Nation’s dissatisfaction with reserve creation. Most of the evidence of this was introduced through Dr. Lovisek.

[163]   The Commission conducted hearings in which Indigenous People gave evidence under oath and made submissions with respect to the original allotment, or non-allotment, of reserves and the reserve boundaries.

[164]   In May 1914, the Commission met, what was described in the opening paragraph of the minutes as, “the Indians of the Nuchatlitz and Ehattesaht Bands of the Esperanza Inlet Tribe.” The meeting was held on Nuchat’l IR1.

[165]   Harry Brown was sworn in on behalf of his nephew, Chief Felix Michael. He also acted as interpreter. Acting Chief Charles Benson made submissions on behalf of the Ehattesaht Band. Mr. Brown, speaking on his own behalf, said that the Nuchatlaht had nine reserves ‘but we go to other places at different times’.

[166]   When asked about the population of the Nuchatlaht Band, Mr. Brown stated: “Not very many of them; they are all mixed up with the Ehat’is’ahts.” At this time the population of the Nuchatlaht was recorded as 38.

[167]   The result of the Commission was four additional reserves created jointly for the Nuchatlaht and Ehattesaht bands:

[168]   In 1964, on the request of the Nuchatlaht and Ehattesaht, these four reserves were surrendered and then re-allocated. Klitsi and Hecate were set aside for the Ehattesaht, while Sophe and Savey were set aside for the Nuchatlaht.

[169]   In 1922, the Ditchburn-Clark Inquiry was established to review the McKenna McBride Commission findings. Once again, this evidence was introduced through Dr. Lovisek.

[170]   By this time the Nuchatlaht population had declined to a recorded number of 22.

[171]   The document adduced by Dr. Lovisek was the minute from an August 14, 1922 meeting with “Nuchatlitz and Ehatisaht Bands, Chief David John, spokesman”. Chief David John requested additional reserve land, some by way of adjustment of current reserves and some by way of new ones, and clarification of the description of land requested before the Commission in 1914. It is not noted which of the two tribes Chief David made the request for. Nor is it in evidence which tribe or group he was the Chief of.

[172]   Neither Dr. Lovisek, nor the parties, referred to any further allotments resulting from this inquiry.

[173]   I further refer to the Ditchburn-Clark inquiry below, at para.473.

[174]   There was an issue as to who occupied Opemit in 1846. The plaintiff says that Opemit is not within the Claim Area and therefore of limited relevance. While it is not within the Claim Area, it is near the entrance to Esperanza Inlet and within the general area claimed to have been historically occupied by the Nuchatlaht. At minimum, it is relevant as to who may have created the CMTs in the area. It is therefore worth reviewing the relevant evidence.

[175]   As noted, Indian Reserves 1, 2, 3, 5 and 6, which were created in 1889, correspond with sites that Dr. Drucker identified as the locations of traditional Nuchatlaht villages. Although it was created as a Nuchatlaht reserve in 1889, Opemit was noted by Dr. Drucker in Map 3 as being an Ehattesaht camp site. Further, Dr. Drucker referred to the Ehattesaht’s amalgamation with the Ha’w ehtakamlath, a coastal local group, and said:

[176]   However, Drucker’s draft map in his field notes showed Opemit as being in Nuchatlaht territory.

[177]   Mr. Eldridge opined that the Ehattesaht occupied Opemit, relying in part on the gravestone of Frank Savey at Opemit, who was listed by Dr. Drucker as a Mowachaht informant, but identified by both Mrs. Dewhirst and Eldridge as also an Ehattesaht Chief.

[178]   Dr. Lovisek reached a different conclusion than Mr. Eldridge. She said:

[179]   Mr. Dewhirst suggested Dr. Drucker’s attribution of Opemit as an Ehattesaht campsite may mean that it was a Nuchatlaht-owned village where the Ehattesaht had rights to camp.

[180]   Dr. Kennedy said that oral history tapes indicated the Ehattesaht and Nuchatlaht disputed the ownership of the area. In a 1981 interview between Joseph Smith, an Ehattesaht Elder, and Kevin Neary of the Royal B.C. Museum, Mr. Smith said: “This is our Reserve, Ehattesaht, that’s not Nuchatlaht”, and blamed a surveying error for it being allotted to the Nuchatlaht.

[181]   Dr. Kennedy also noted what Lillian Michael said in 1987:

[182]   It will be recalled that Dr. Drucker’s time horizon was 1870 to approximately 1900. His field work was done from 1935-1936. It is likely that the Ehattesaht were either observed by him at Opemit when he did his field work, or he was told it had been an Ehattesaht site. It may also be safely assumed there was a Nuchatlaht presence at the site in 1889 when the reserve was created and allocated to the Nuchatlaht. That obviously gets us closer to 1846.

[183]   Dr. Lovisek concluded it was likely a Nuchatlaht site in 1846, and I would agree with that. On the other hand, the evidence also shows an Ehattesaht presence in the area, with an uncertain time frame.

[184]   This is one example of how the intertribal relationships of the Northern Nuu-chah-nulth groups are difficult to disentangle in the historic record.

[185]   I will now outline the evidence with respect to the existence of Nuchatlaht local groups in 1846.

[186]   To put the significance of the local groups into perspective, it is worth quoting Dr. Kennedy:

[187]   The tacīsȧth local group moved from Tahsis Inlet (outside the Claim Area) to Esperanza Inlet, likely to Nučaal. Mr. Dewhirst put the date of the move at around 1780. Dr. Kennedy says it was at least by 1789.

[188]   In his 1951 monograph, Dr. Drucker relayed the legend that the tacīsȧth Chief who led the move had lost a son and bequeathed his Tahsis holdings to a sympathetic Nootkan, then moving to Esperanza Inlet. Dr. Lovisek pointed to another version, which is that the Tahsis holdings were lost in a war. In his field notes, Dr. Drucker recorded how the Nuchatlaht chief at Tahsis gave away his land after other Chiefs brought him sea otter robes.

[189]   Mr. Dewhirst said that prior to the move, the tacīsȧth Chief already had the holding on Esperanza Inlet. Dr. Lovisek disagreed, saying there is no evidence of that. Dr. Kennedy opined it was likely the Tacīsȧth group joined a pre-existing group with whom they had a kinship relationship.

[190]   The Tacīsȧth became the leading group of the Nuchatlaht. Again, whether that was before or after the move is a matter of debate. The Chief of the group was the First Chief, meaning first in rank. Chief Felix Michael told Dr. Drucker he held the property of the t’aSi^. sʔatHt and that he acquired this property when the Nuchatlaht people recognized him as their Chief.

[191]   Dr. Kennedy said Lillian Michael, in one of the taped interviews mentioned above (para. 52), identified the harbour of Port Langford as part of the Chief’s property. This is the harbour that Kendrick purchased from Chief Tarassom in 1791, discussed below, beginning at para. 218.

[192]   Dr. Kennedy analysed the genealogy of the Nuchatlaht Chieftainship in detail. She concluded that Chief Felix Michael, who was seated as the Nuchatlaht Chief in 1914 and whose lineage has maintained the Chieftainship to the present-day, was a descendant of identified individuals alive in 1846 and earlier, whose affiliation was with a people recognized as Nuchatlaht.

[193]   In her initial report, Dr. Kennedy set out that Lillian Michael identified the Cha tla ath as the owners of Broderick Creek, situated immediately to the east of Snug Cove on Esperanza Inlet. This is identified as Site #25 on Dr. Drucker’s Map 3. The Cha tla ath were closely related to the Tacīsȧth.

[194]   Dr. Kennedy concluded the Jala’th were a local group that amalgamated with the tacisath/Nuchatlaht local group by 1846. The Province says that in her direct testimony, Dr. Kennedy revisited this and said the Jala’th (and possibly other groups) joined the Nuchatlaht local group in the late 1850s. I do not think that is a fair interpretation of her evidence. Rather, it appeared to me she was simply musing about how difficult it was to come up with exact dates.

[195]   Dr. Kennedy testified that Lillian Michael said that when the amalgamation occurred, her father - the Jala’th Chief – transferred his name and songs, but not his “rivers and boundaries.”

[196]   Dr. Kennedy said that Lillian Michael described the location of this local group as “either side of the Opemit IR 4 peninsula,” according to notes made by Richard Inglis following an interview with George Louie. These people had a village at kiˑnmatis. There were coho salmon and a trap set in the water here, which was owned by the Second Chief.

[197]   Of the fishery, Joseph Smith said:

[198]   In Dr. Kennedy’s opinion, the Ei-was ath were amalgamated with tacisath/Nuchatlaht by 1846.

[199]   Mr. Dewhirst said that:

[200]   Dr. Kennedy said the yaminkamaath was a lineage, within the i.WasɁatH at 1846, with no territory of their own.

[201]   I dealt with this group in conjunction with the site of Aqī, (para. 155).

[202]   The Shuma’athat group resided in the Claim Area at cō’ōma (Site #27) at the western end of the Inner Basin of Nuchatlitz Inlet. Lillian Michael described it as a once-large community.

[203]   There is also evidence, which the Province accepts, of the group residing at yūtckhtōk (Site #16) at the narrows between the Inner Basin.

[204]   As I said above, a major issue is when the Shuma’athat joined the Nuchatlaht. I deal with that separately later.

[205]   Dr. Kennedy explained that Lillian Michael described this group as being located at ki’matis, which is in the Claim Area. This is also the name of the location described for the Ei-was ath, and is similar to the Tacisath location called kin’matis.

[206]   In relation to this group, Dr. Kennedy refers to a band called hišusqučisɁath̩ at a location called hutinqis beach. The relationship of this group to Tacisath/Nuchatlaht is not in evidence, nor is the location of the area.

[207]   There were several groups outside the Claim Area. I will not detail them here. I referred to their sites at para. 157.

[208]   It is not disputed the Shuma’athat and the Nuchatlaht were originally separate groups. It is also not in dispute the Shuma’athat joined the Nuchatlaht. For example, Dr. Lovisek concluded:

[209]   The issue is whether the merger – for lack of a better word – took place before or after 1846. Dr. Lovisek estimated the groups merged at some point after 1875. Dr. Kennedy opined that it was in 1898. Mr. Dewhirst’s view was that the merger would have taken place early in the Nuchatlaht confederacy, which he says was formed by 1785.

[210]   The parties relied on several historical references to support their positions, the debate with respect to some of them being whether they refer to a people or group vs. a place name. I will outline these here.

[211]   As outlined by Dr. Lovisek, Captain John Kendrick, on the American vessel Columbia Rediviva, led a trading expedition to Nootka Sound in 1788. Joseph Ingraham was first mate and pilot on the Columbia, and Robert Haswell was second mate of the accompanying vessel Washington under Captain Gray. The two vessels were on the west coast between September 1788 and July 1789.

[212]   Haswell’s log lists “Shuma that” along with “Noocho lat”, amongst other names, with an identifying bracket or heading “Names of the Towns which they visit and trade with to the Northwest of Nootka Sound.”:

[213]   Dr. Lovisek suggested the “they” referred to the people at Yuquot (in Nootka Sound) led by Chief Maquinna, whom Ingraham and Haswell were familiar with. Haswell and Ingraham had not visited Nuchatlitz Inlet at the time, so the list is obviously second-hand.

[214]   The Columbia Rediviva had been joined in the spring of 1789 by the Spanish expedition led by Estevan José Martínez. In July 1789, before the Columbia had set sail from Nootka Sound, Martínez asked Ingraham to provide him with an account of the Indigenous Peoples in Nootka Sound. Ingraham prepared a list like Haswell’s. Ingraham and Haswell’s lists are the earliest documents to identify the Nuchatlaht by name.

[215]   Dr. Kennedy’s view was that Ingraham was the source of Haswell’s and Martinez’ lists.

[216]   Also in 1789, Martinez wrote a descriptive account of Nootka Sound in his diary, which included a list of villages (which he called “rancherias”) that “natives of this entrance” (Nootka Sound) visit and traffic with to the north. Martinez’ list includes “Shumat”.

[217]   I will not detail the further evidence of the experts on this narrow point. It appears to me that Haswell, Ingraham and Martinez were referring to village sites rather than Indigenous Peoples.

[218]   As mentioned above at para. 211, John Kendrick first visited Nootka Sound in 1788. In 1791, Kendrick was asked to return to Nootka Sound by Boston merchant, Joseph Barrell, to trade for sea otter pelts and if possible, buy land. With respect to purchasing land, Barrell instructed Kendrick as follows:

[219]   It is also worth setting out here part of the instructions given to Kendrick for the 1788 voyage:

[220]   Kendrick passed on similar orders to Captain Robert Gray, who accompanied Kendrick on the sloop Washington:

[221]   On August 5, 1791, Kendrick entered into a deed for the purchase of land from Chief Tarrasom, Chief Waklimmis (noted to be Chief Tarassom’s first son), a female of unknown status named Quanteno and Chief Clakishuppa (noted as the second son of Chief Tarassom). The full text of the deed stated:

[222]   The experts agreed the reference to New Chatlick is to be interpreted as Nuchatlaht. Dr. Drucker and Dr. Kennedy agree that Hoot-see-ess is what is now known as Port Langford - a bay on the northwest of the entrance to Nuchatlitz Inlet. As I will explain, the term “eighteen miles square” is significant.

[223]   Kendrick also obtained four similar deeds with neighbouring Chiefs.

[224]   The plaintiff says that the Kendrick purchase included the village of Shumaat, noting the deed refers to “18 miles square” which means a square of 18 miles in each direction. It argues that Tarrasom, being a Nuchatlaht Chief, could not have sold Shumaat unless it was part of the Nuchatlaht confederation.

[225]   In her initial report, Dr. Kennedy said:

[226]   In direct examination, Dr. Kennedy revised her opinion, suggesting that Kendrick’s deed incorrectly read “miles square” when in fact it should have said “square miles”, meaning that Kendrick would have purchased an area roughly 4.25 miles on each side, and which would not include the Shuma’athat villages. Dr. Kennedy preferred this interpretation because it would mean that Kendrick’s purchases would no longer overlap.

[227]   In her cross-examination, Dr. Kennedy acknowledged that another possibility is that the purchase was for 18 miles square, but Kendrick was not aware of the overlap. She also allowed for yet another possibility: that Kendrick was content to have an overlap as a margin of safety. After all, he was buying large tracts of land for virtually nothing. (He referred to all of Nootka Island as “Kendrick’s Island”, presumably, as Dr. Lovisek noted, because of the large tracts of land he purchased.)

[228]   The term “miles square” was well known to surveyors in the U.S. at the time. In Manitoba Metis Federation v. Canada, 2007 MBQB 293, there is this reference to “square miles” and “miles square”:

[229]   The purchases are shown on a map prepared by John Hoskins, who was a clerk on board the Columbia commanded by Kendrick. The map is titled Map of the lands purchased by Capt. John Kendrick on the northwest coast, in 1791. The maps had been included in an 1852 petition to Congress from Captain Robert Gray’s wife concerning the Kendrick purchases. It is not clear when they were drawn.

[230]   Dr. Lovisek noted that there is no evidence Hoskins was present with Kendrick at the time he made the purchases, and the maps are likely inaccurate. As noted by Dr. Lovisek, although Nuchatlitz Inlet is not identified (it had not been surveyed at this time), it appears to have been included in the tract of land noted as having been purchased from Chief Tarrasom.

[231]   One further point on the area purchased by Kendrick. The deed refers to the purchase of “all the Rivers, Passages, with all the outlets which lead to and from said Territory”. As the plaintiff points out, 4.25 miles in all directions from Port Langford (which would approximate to 18 square miles) would not include all the rivers and passages.

[232]   Mr. Dewhirst said that Chief Tarrasom must have been the Tacisath Chief who made the move from Tahsis to Nuchatlatz (above para. 187). Dr. Lovisek disputed that and said he was likely a local Nuchatlaht Chief. I do not think it matters with respect to this issue, as the central point is whether a Nuchatlaht Chief was selling land which included cō’ōma. Either way, it is not in dispute that Chief Tarrasom was Nuchatlaht.

[233]   I think the use of 18 miles square must have been deliberate on Kendrick’s part. It was a term that was known to surveyors at the time, and it was not used in Kendrick’s other deeds.

[234]   However, I also think only a minimal amount of weight can be placed on the Kendrick purchase. If the parties are now debating 18 miles square vs. 18 square miles, it is no disrespect to doubt whether the Nuchatlaht would have known the measurement, and there is no reason why they should have. We have no idea what took place in the negotiations. While Kendrick was told to deal fairly with the Indigenous Peoples he encountered, the price he paid (two muskets, a boat’s sail, and a quantity of powder) was likely derisory even for the 18^th century. No doubt his interest was to acquire as much territory as he could for as cheap a price as possible. Whether Chief Tarrasom understood he was selling cō’ōma is an open question, especially since at 18 miles square the territory sold would have extended well into Mowachaht territory to the south.

[235]   John Jewitt was a blacksmith and armorer aboard the American fur trading ship Boston. The ship was captured by the Mowachaht in 1803. All the crew except Jewitt and John Thompson, a sail maker, were killed. Jewitt and Thompson were held as slaves of Chief Maquinna until 1805. Jewitt kept a journal of his captivity. In 1815, after Jewitt returned to Boston, he and ghostwriter Richard Alsop published a narrative account of his captivity. It is agreed the unpublished version is more reliable because of embellishments made for publication.

[236]   In his journal, Jewett records visitors to the Mowachaht. Some of these refer to Nuchatlaht:

[237]   With respect to the Shuma’athat, there is one instance where he refers to people from “Shoemadeth”.

[238]   There is an instance where Jewitt refers to a visit from “no less than 20 tribes to the North and South”, where he lists the “Schoomad-its”. Dr. Kennedy used this as support for her view that the Shuma’athat were, at that time, an independent group. The plaintiff argues that even if Jewitt was referring to “Schoomad-its” as the name of the local group, this does not mean they had not become affiliated with the Nuchatlaht by that point.

[239]   The plaintiff points to several historical sources which do not refer to the Shuma’athat, but where one would expect them to be mentioned if they were a separate group.

[240]   Mr. Dewhirst referred to a census in James Douglas’ private papers in which the Nuchatlaht were mentioned, but the Shuma’athat were not. Mr. Dewhirst dated the census to 1852 but stated the information “was collected earlier from unidentified sources”.

[241]   Dr. Lovisek said there is no support for that earlier date. Although Douglas may have started writing his papers, the earliest date for census information about the Nuchatlaht was July 17, 1855, when William Banfield and Peter Francis transmitted census information to Douglas. Although Banfield and Francis did not provide population information for the Nuchatlaht at this time, they informed Douglas that Nuchatlaht was an island and that the Nuchatlaht were a “small tribe.”

[242]   Dr. Lovisek added that the only reliable Douglas census is one he sent on October 20, 1856 to Henry Labouchere, Secretary of State for the Colonial Department. In his letter, Douglas stated he had “succeeded in completing a census of the Native Tribes [of Vancouver Island], and in ascertaining with something like accuracy their relative numbers and places of habitation…” The Nuchatlaht are mentioned, but not the Shuma’athat. (By this time, he was Sir James Douglas, having been knighted in 1864.)

[243]   From 1859-1860, William Banfield compiled a census titled “Male Adult Population, Tribes Southwest Coast Vancouver Island”. This census primarily consisted of the Nuu-chah-nulth tribes, listed from south to north. The “Nootka Sound” tribes included the “Nieuchallet”, Banfield’s rendering of Nuchatlaht. Banfield did not list the Shuma’athat.

[244]   In 1862, Commander R.C. Mayne, who had travelled extensively in the coastal regions of British Columbia and Vancouver Island, published a descriptive account that included a list of the names and approximate populations of tribes of Barkley Sound, Clayoquot Sound, and Nootka Sound. His list for Nootka Sound included four groups: the “Match-clats” [Muchalaht]; the “Moachet” [Mowachaht]; the Neuchallet [Nuchatlaht]; and, the Ehateset [Ehattesaht]. Mayne does not list the Shuma’athat as a distinct group.

[245]   In the latter half of the 19th century, Captain R.W. Torrens spent several years conducting coastal explorations with a group of miners along Vancouver Island. While weather-bound at Friendly Cove, he said he amused himself by recording information “concerning the strength and disposition of the Indian Tribes of Nootka Sound, and compiled a Vocabulary of their words.” In 1865, he wrote a report of his “explorations and proceedings” at Clayoquot Sound, in which he listed the “Nootka Sound Indians”. On the left column he listed “Name of Tribe + Chiefs”, and on the right column he listed “Villages” corresponding to those tribes. Under “Name of Tribe + Chiefs”, Torrens wrote “Neŭchātlăt” as his rendering of Nuchatlaht. The Shuma’athat are not listed as an independent tribe. However, next to the entry for the Nuchatlaht, in the “Villages” column, Torrens lists “Tsŭmā”, which both Mr. Dewhirst and Dr. Kennedy identified as “cō’ōma”, the local group village of the Shuma’athat. Dr. Kennedy thought that Torrens likely got his information from the Mowachaht.

[246]   In 1889, Nuchatlaht Indian Reserve No. 5 “Shoomart” was set aside for the Nuchatlaht. This reserve is located at the site of cō’ōma, the local group village site of the Shuma’athat, at the head of Nuchatlitz Inlet. The Shuma’athat were not mentioned.

[247]   In 1895, Indian Agent Harry Guillod, whom Mr. Dewhirst described as “perhaps the most knowledgeable source of his time”, created a list titled Return shewing the names of the Chiefs of the Several Bands of Indians in this Agency (the West Coast Indian Agency). The “Names of Bands” column lists the Nuchatlaht (“Noo-chaht-laht”) as a band. The Shuma’athat are not mentioned in the list.

[248]   The Canada censuses of 1881, 1891 and 1901, all enumerate the Nuchatlaht as an existing group. None of them identify the Shuma’athat as a separate group.

[249]   One of Dr. Kennedy’s main rationales for concluding the Shuma’athat joined the confederation around 1898 was from her review and translation of a tape recording of the interview with Chief Felix Michael’s widow, Lilian Michael, conducted in 1981. The interview was done in the Nuu-chah-nulth language. The tape was partially translated by Randy Bouchard, a linguist and Dr. Kennedy’s husband. Mr. Bouchard’s note of the relevant part is:

[250]   On listening to the tape during Dr. Kennedy’s cross-examination, it became apparent that Lillian Michael was not using the English word ninety-eight, as suggested by Mr. Bouchard, rather she was saying Nayi’ii a Nuu-chah-nulth word for “echo”. It was agreed this was a reference to an Oscar Dean, whose nickname was Nayi’ii and who was from Shuma’athat.

[251]   As Dr. Lovisek pointed out, because the local groups took their names from the villages or areas they occupied, it is often not clear whether the authors of the historic documents were referring to a location or a people, or both. For example, Dr. Lovisek said, with respect to Ingraham and Haswell:

[252]   The documents that begin in 1855, starting with Sir James Douglas’ census, became more reliable because they were at least somewhat methodical. Of course, all of these documents post-date 1846, but 1855 is close to 1846.

[253]   One thing appears clear – the 1898 date postulated by Dr. Kennedy must be rejected for the following reasons:

[254]   In the opening paragraph to this section, I set out that it was Dr. Lovisek’s opinion that in 1846 the Claim Area was occupied by peoples known as Nuchatlaht and cō’ōma’ȧth. She goes on in the same paragraph to say that the Nuchatlaht occupied lūpȧtcsis and nūtcȧll, and the cō’ōma’ȧth occupied lūpȧtcsis and cō’ōma. As I said earlier (at para. 148), lūpȧtcsis was the summer Nuchatlaht confederation site where the local Nuchatlaht groups gathered. There is no explanation for the cō’ōma’ȧth also occupying lūpȧtcsis if they were not part of the Nuchatlaht.

[255]   Mr. Dewhirst observed that the village site of the Shuma’athat local group was in a geographical cul-de-sac at the head of Nuchatlitz Inlet, with no access to “outside” ocean fishing and hunting resources. The same can be said with respect to yūtckhtōk. While this does not in and of itself indicate when the Shuma’athat joined the Nuchatlaht, it does suggest they would have had an incentive to do so from an early date in order to gain access to the “outside” resources otherwise unavailable to them.

[256]   On balance, I conclude it is more likely than not the Shuma’athat had merged with the Nuchatlaht, or were part of the Nuchatlaht confederation, by 1846.

[257]   In the alternative, the plaintiff argued that it does not matter if the Shuma’athat became part of the Nuchatlaht after 1846. I will address that as part of the proper title holder later in section X. As will be seen, I agree with the plaintiff.

[258]   I set out the evidence regarding the location of villages and groups within the Claim Area above. Obviously that evidence is relevant to the issue of whether the occupation was exclusive. Here, I set out further evidence regarding the issue of whether the occupation was exclusive.

[259]   I return later to the legal test for exclusivity, but to put the evidence I relay in this section into context, it is worth setting out here part of what the Supreme Court said about exclusivity in Tsilhqot’in:

[260]   The Nuu-chah-nulth concept of ownership provides part of the Aboriginal perspective which is a key element of a title claim. It also elucidates what the practice “on the ground” was likely to have been and allows inferences to be drawn about exclusivity.

[261]   I mentioned above that the Nuu-chah-nulth were observed to have a heightened concept of ownership. There is no oral evidence with respect to this, so I will quote at length from Mr. Dewhirst’s report, which in turn relies on Dr. Drucker:

[262]   Mr. Dewhirst described hahoulthle:

[263]   Early explorers commented on the Nuu-Chah-nulth concept of ownership. For example, Captain Cook who visited Nootka Sound in 1778 noted:

[264]   Captain Cook described an encounter with Mowachaht inhabitants:

[265]   James King, one of Cook’s officers, noted:

[266]   Fur trader Andrew Walker entered Nuchatlitz Inlet in 1786. He recorded that:

[267]   Walker visited a village on the east side of Nootka Sound and noted:

[268]   Mr. Dewhirst, again relying primarily on Dr. Drucker, said that ownership of the hahoulthle was vested primarily in the Head Chief at the local group level. The Chief had a responsibility to “feed the people”, and he owned and managed his hahoulthle for the benefit of his group. Chiefs granted usufruct rights to resources within their hahoulthle to relatives and “tenants”, but retained ownership of the territory and resources.

[269]   The hahoulthle was the exclusive property of the Chief and included tracts of land and sea, as well as all resources and anything of economic value therein, including fishing banks, beaches, hunting territories, root and berry harvesting patches, other plant resources, salmon streams, herring spawn grounds, fishing sites, dentalia grounds, villages, house sites, houses and salvage.

[270]   Although the hahoulthle was owned exclusively by the Chief, his territories were implicitly open to use by anyone from his local group, or even to anyone from the confederacy. However, such use was on the understanding that it was by virtue of the Chief’s bounty and depended on public acknowledgment of the Chief’s ownership.

[271]   Nuu-chah-nulth culture had several ways by which those who used the Chief’s territory would publicly acknowledge his exclusive ownership. One of these was to wait for the Chief to formally open the season. Another was for the users to pay tribute, or “o’ūmas”, to the Chief. When feasting with that tribute, the Chief would proclaim his hereditary right to the territory and the tribute that was paid to him.

[272]   Ceremonial or social privileges were also owned, and included intangible social and ceremonial items such as names, songs, rituals, tōpatī (hereditary privileges or prerogatives that involved the ownership and utilization of practically anything of value, but especially rights connected with public displays), and ranked seats at feasts and potlatches. These ceremonial privileges were often connected to other forms of property and the history of ownership of that property.

[273]   For example, an ancestral name might embody the ownership of a territory, resource rights and ceremonial privileges that were transferred to a Chief along with that name and recounted at the transfer. Ceremonial expression reconfirmed the Chief’s ownership of the property and supported his prestige.

[274]   House sites and houses were owned by Chiefs representing their local groups. At main villages, houses were typically large multi-family dwellings consisting of permanent house posts to which portable cedar plank coverings were attached. If the local group was large, there might be one or more neighbouring houses led by junior Chiefs. The physical house, with its ancestral display privileges (carved poles and painted designs), represented the Chief’s corporate lineage group and was usually referred to by the name of that group. Local group villages were owned by the Head Chief of the local group, while tribal winter villages and confederacy summer villages were owned by the highest-ranking Chiefs of the tribe or confederacy, respectively.

[275]   Dr. Lovisek noted that because of a local group’s association by name to a place at which they lived year-round, there was little dispute over who owned or had rights at each village and salmon stream.

[276]   Dr. Lovisek also noted that Dr. Drucker reported his informants did not know of any instances of trespass. He said that while in theory the Chief owned everything, the Nuu-chah-nulth used their judgement about small articles such as valuable dentalia shells.

[277]   Dr. Lovisek said there is no evidence in either the historical or published ethnographic records that the Nuchatlaht “collectively and overtly engaged in the enforcement of trespass”. I will return to this later.

[278]   Mr. Dewhirst, again relying primarily on Dr. Drucker, said a Chief could transfer all or part of his hahaułi to others, although in practice it appears this was rare except in the case of the succession of a Chief’s heir after his death. Property was transferred at potlatches following formal rules of inheritance based on male primogeniture. The common practice was for a Chief to transfer his rights to his heirs on an ongoing basis throughout his life, rather than waiting until he was close to death. When transferring property to an heir who was too young to take the position, the Chief managed the position until the heir was old enough, thereby allowing the heir to learn the complexities of managing his hahaułi.

[279]   Property could be shared among family members in the line of descent from a founding ancestor. On this point, Dr. Drucker wrote:

[280]   Property was also transferred in marriage. When taking the bride into his family, the husband would formally invest in her with everything he owned, including all of his Chiefly rights, privileges, lands, seats, names and songs, on condition she would bear his children to inherit them. In addition, the bride came with a dowry that transferred property from her family to the son-in-law. A condition of the dowry was that if the couple were childless or separated, the rights, but not the wealth, would revert to the woman’s family.

[281]   When a woman married into her husband’s family and house, which was the usual practice, her family bestowed the groom with transportable rights such as names, songs and dances, but kept non-transportable rights within the bride’s family. However, where a man married into a woman’s family and affiliated himself with them through matrilocal residence (usually when there were no direct male heirs), her family would bestow non-portable properties, such as seats and fishing rights, on him. This ensured that the more valuable non-portable property remained within the wife’s family and would be inherited by male heirs of the couple who were themselves part of the wife’s family.

[282]   While still retaining ownership of the hahaułi, a Chief could transfer usufruct rights to resources, for example, the right to put fish traps at certain places in his salmon streams, or to the second picking of berries

[283]   The territories of local Chiefs were marked by mutually recognized boundaries in the form of natural landmarks, such as points of land, waterfalls, streams, islands, islets, the kelp line, reefs, rocks, bays, beaches, and other distinctive landforms. Man-made markers were not used. For inlets claimed by multiple groups, the mid-channel line, together with other markers, often delineated their respective territories. Offshore boundaries extending for many kilometers out to sea were projected from visible territorial boundary markers on land as well as the alignment of distinctive mountain peaks. Inland boundaries were more vaguely defined, but tended to follow watersheds divided by heights of land.

[284]   Dr. Drucker said that the Nootkans had a “pilot’s knowledge” of the coastal area and were unfamiliar with the interior:

[285]   The territorial boundaries of a Chief’s hahaułi on both sea and land, and the Chief’s ownership of all resources therein, including salvage, were mutually understood and widely acknowledged amongst Nuu-chah-nulth persons. Dr. Drucker said:

[286]   Dr. Drucker’s informants could not recall an instance where someone refused to turn over salvage to the Chief:

[287]   The Nuu-chah-nulth had a concept of trespass. Harvesting of resources within the boundaries of a hahaułī was restricted to the local Chief’s group, and his express or implicit permission as recognition of his ownership was expected. Use of the hahaułī by persons not within the local Chief’s group could be considered trespass. However, as emphasized by Dr. Lovisek, Dr. Drucker described that an outsider may have been temporarily allowed to use a group’s resources without committing trespass if he came to reside with them. Dr. Drucker noted that in doing so, the “outsider” was considered to temporarily become a member of the Chief’s local group:

[288]   As I set out above, the Supreme Court in Tsilhqot’in, at para. 48, said that “[e]xclusivity should be understood in the sense of intention and capacity to control the land…”. I will return to how this has been treated by the courts later; at this point my focus is on the evidence.

[289]   Both Drs. Kennedy and Lovisek noted the historical and ethnographic record do not provide evidence of the Nuchatlaht’s ability to defend their territory. There is also no evidence to the opposite effect: namely of the Claim Area having been invaded or conquered. Dr. Lovisek noted that because of a local group’s association by name to a place there was little dispute over who owned or had rights at each village and salmon stream.

[290]   Dr. Kennedy said that while the Nuchatlaht have been described as a small group with little capacity to exclude others, they allied themselves with neighbouring tribes where necessary, helping them attack or defend themselves against other tribes.

[291]   The Nuu-Chah-nulth had defensive sites, although as with other archaeological sites, it is not possible to know which group created them. In one of his reports, Mr. Eldridge described a site he had noted within the Claim Area:

[292]   Dr. Kennedy was unaware of this site when she wrote her report, but in her testimony, she acknowledged this was a well-situated defensive site with houses on it.

[293]   Both Mr. Earnshaw and Mr. Dewhirst noted that there were several refuge or defensive sites in the Claim Area, although they could not be dated.

[294]   Although Dr. Lovisek noted that Walker was not prevented from entering Nucahtlitz Inlet in 1786, he was greeted immediately by 20 canoes (above, para. 266). Mr. Dewhirst says this is evidence that they kept watch over who came into the area, most likely by posting sentinels.

[295]   While there is no evidence of the Nuchatlaht using rifles in combat, there is evidence they had access to them. A paper co-authored by Dr. Dorothy Kennedy and Randy Bouchard - Clayoquot Sound and Indian Land Use - recounts the following incident which took place during the Ahousaht war, likely at some point during the early 19th century:

[296]   Dr. Kennedy did not mention this in her reports but was asked about it in cross-examination. She said she was astounded the Nuchatlaht were able to amass so much weaponry, but that it might reflect on their trading capabilities rather than their own defensive capabilities.

[297]   Mr. Dewhirst opined that the Nuchatlaht confederacy, operating as a political alliance (a point which itself is contentious), would have supported its member groups in warfare, and that the existence of the confederacy would have operated as a deterrent to incursions by other groups:

[298]   Although the Nuchatlaht were primarily a marine-oriented culture, they could not have sustained that life without the use of forest resources. Dr. Drucker described how cedar was involved in nearly every aspect of life:

[299]   The uses which Nuu-chah-nulth Peoples made of their forest resources included canoes (western red cedar); paddles (red and yellow cedar); whaling harpoons (yew wood and cherry bark); clothing (spun yellow cedar bark); hats (cedar bark or spruce root); rope (twisted cedar withes); fish hooks (two kinds of wood); housing (cedar planks, posts and beams); cooking fires (wood); food storage boxes (kerfed wood); masks (wood); rattles (wood); drums (wood); large drums (hollow wooden logs); diapers (cedar bark); funerary boxes (wood); bows (yew); and arrows (cedar or ironwood). The Nuu-chah-nulth Peoples also had access to crabapple, hemlock and Douglas fir. Yellow cedar is found at higher elevations and is preferred for clothing and canoe paddles.

[300]   To show the use and occupation of the inland Claim Areas, the plaintiff relied on the existence of CMTs and, to a lesser extent, on archaeological sites. As I noted above, CMTs are trees which have been modified by indigenous people for a cultural purpose, such as those described in the previous paragraph.

[301]   The plaintiff introduced this evidence through expert reports prepared by Mr. Earnshaw and Mr. Dewhirst. As stated previously, Mr. Earnshaw’s reports were the subject of a pre-trial motion to exclude them. I ruled the reports met the admissibility threshold.

[302]   The Province adduced two response reports by Morley Eldridge and one by Dr. Lovisek.

[303]   Mr. Earnshaw noted the different types of CMTs, which include:

[304]   While the age of a tree modification can be determined through dendrochronology (counting tree rings), there is no way to identify which group altered a tree by analysing it. That determination depends in large measure on drawing inferences from the historic and ethnographic evidence regarding the coastal areas which I dealt with in the prior sections.

[305]   Stated simply, the plaintiff says that because it was the Nuchatlaht who occupied the coastal region of the Claim Area, it must have been the Nuchatlaht who made the tree modifications. Thus, Mr. Dewhirst says:

[306]   Of course, exclusive occupation is the very issue in dispute. Mr. Dewhirst relies on his initial report which deals primarily with the coastal area, as authority for his proposition regarding exclusive occupancy.

[307]   The Province did not present an affirmative position on who made the modifications. Rather it points to what it says are shortfalls in the plaintiff’s evidence. It says the evidence is equivocal as to which Nuu-chah-nulth group made the modifications and that it is likely that non-Nuchatlaht people harvested cedar within the Claim Area.

[308]   The number, location and dates of the CMTs was primarily addressed by Mr. Earnshaw. Mr. Earnshaw was recognised as an archaeologist with specialised expertise regarding CMTs on the northwest coast.

[309]   Mr. Earnshaw prepared two reports. The first reported on available information and on brief reconnaissance surveys he conducted in 2017 and 2018. The purpose of his surveys was to investigate the condition of previously discovered archaeological sites and discover new ones, with a goal of supplementing the existing record.

[310]   His second report described the results of two further surveys conducted in 2021. Mr. Earnshaw noted he was asked to assist another archaeologist retained by the plaintiff, Dr. Chelsea Armstrong, to navigate the Claim Area as part of her ethnobotanical review. Although Dr. Armstrong prepared a report, it was not put into evidence.

[311]   The existing information relied on by Mr. Earnshaw were primarily reports prepared by others in compliance with the Heritage Conservation Act, which, as I mentioned previously, protects all archaeological sites (including CMTs) estimated to pre-date 1846. Applications must be made to the province to alter any protected sites. The applications and accompanying reports are filed with the Archaeology Branch of the Ministry of Forests and available in its Remote Access to Archaeological Data (RAAD) database.

[312]   RAAD uses a grid system known as a Borden grid and assigns archaeological sites a unique identifying number based on the Borden location. Information in the RAAD database is mostly submitted by archaeologists. The information entered on a site form package is often detailed, including location, site type, age of artifact, route of survey and photographs. The information submitted to RAAD is based on field observations and notes. Both sides relied on this data and took no issue with respect to its admissibility or reliability.

[313]   Apart from the survey work done by Mr. Earnshaw, and some shoreline surveys done in the 1980’s, most of the archaeological surveys done in the Claim Area were forestry-driven. There were no prior systematic archaeological investigations.

[314]   Mr. Earnshaw, and the plaintiff in its argument, stressed that the archaeological record in the Claim Area is far from complete and that much has likely been destroyed by logging. Also, old CMTs have likely died and tree scars can be completely enclosed by healing lobes in older trees. With respect to his own surveys, Mr. Earnshaw noted that in dense forest it is often difficult to find CMTs. Further, all of the Claim Area has not been surveyed to date. Therefore, not all CMT sites have been located or recorded, and only a portion of those have been dated.

[315]   Mr. Earnshaw said the industry-driven nature of the surveys for the purposes of the Heritage Conservation Act skew the record:

[316]   According to Mr. Earnshaw, there are 93 CMT sites within the Claim Area, containing a total of at least 8,386 individual CMTs. The two sites with the largest number of recorded CMTs are DlSr-99, with 2477 recorded CMTs, and DkSr-53, with 2358 recorded CMTs (The site numbers are the Borden numbers I referred to above). Mr. Earnshaw noted that these are the second and third largest known sites (again, in number of CMTs) within all of Nuu-chah-nulth territories.

[317]   With respect to the age of the CMTs, Mr. Earnshaw said that:

[318]   With the exception of DkSr-53, the CMT sites were in or near coastal areas, the average being 845 meters from the coast. The furthest site was 2.95 miles from the shoreline, all distances being in a straight line, or “as the crow flies”. However, Mr. Earnshaw said that CMTs would appear everywhere in the Claim Area “when searched for”, and that, “if these deep, inland areas were to be consistently surveyed, large cedar harvesting areas would continue to be identified.”

[319]   He also said it is likely the CMT sites are larger than surveyed:

[320]   In essence, Mr. Earnshaw extrapolated from the available data to conclude that if all the Claim Area were surveyed, and if areas had not been destroyed by logging, it would show all of the area was used by the Nuchatlaht prior to 1846:

[321]   Mr. Earnshaw also relied on a predictive model for CMT potential.

[322]   The Province says no reliance can be put on Mr. Earnshaw’s opinion. The issue is not whether Mr. Earnshaw accurately identified CMTs in his surveys. In fact, Mr. Eldridge acknowledged that Mr. Earnshaw did a much better job than most archaeologists of recognizing and recording CMTs. Rather, the Province says he presented skewed and misleading data.

[323]   As stated above, Mr. Earnshaw opined that 71% of dated sites (not samples) were before 1846. The Province extensively cross-examined Mr. Earnshaw on the basis for that conclusion, taking him to the underlying studies that formed the basis of his report. The following is apparent from the cross-examination:

[324]   In reaching his percentage figure, Mr. Earnshaw referred to the number of sites, whereas the Province referred to the number of samples. Each site and report, of course, deals with multiple samples. In my view, to present a true picture of Claim Area usage prior to 1846, it would be more illuminating to use sample numbers rather than site numbers. To use site numbers in a percentage calculation where there might be only one relevant CMT conveys an over-weighted impression.

[325]   The Province says when the correct data is tabulated, only 11.4% of the dated samples pre-date 1846. Taking both the added data and using samples rather than site numbers, I agree with the Province that only 11.4% of the recorded samples pre-date 1846.

[326]   Another issue which detracts from Mr. Earnshaw’s conclusions is that he used “recorded” “estimated” and “observed” either inconsistently or interchangeably, particularly with respect to DkSr-53 and DlSr99.

[327]   The Province also points out that the areas which Mr. Earnshaw himself chose to survey were not randomly chosen, and therefore subject to selection bias.

[328]   Turning to the surveys conducted by Mr. Earnshaw, the Province notes that he did not have any permits to allow sampling or site disruption. These permits are available for research. In fact, Mr. Earnshaw had permits for his M.A. thesis. In response to this, Mr. Earnshaw said in cross-examination, he “was just walking lightly on the land and viewing what is visible”.

[329]   Mr. Earnshaw did not note any CMTs in his furthest inland survey – Survey B. This was approximately 5-6 kilometers inland. Three people were involved in the survey, spread out along a survey path of 1,000 to 1,200 metres. Mr. Earnshaw’s report noted:

[330]   Survey D was 2 kilometers inland and involved three people. Only two possible bark strips were observed.

[331]   The plaintiff argues that negative surveys were limited “spatially and temporally” and should not be considered conclusive, particularly considering Mr. Earnshaw’s favourable assessment of the archaeological potential. In answer to a leading question put to him in direct, Mr. Earnshaw said that after the surveys were done, he reviewed a potential model and it predicted there were likely CMTs “further up”. That, however, is not evidence.

[332]   Mr. Earnshaw’s opinion that the Claim Area which has not been surveyed likely does, in fact, have further CMT activity, is based in part on Mr. Earnshaw’s extrapolation from identified CMTs (above para. 320). There is no scientific basis for this. Even if it was accepted that there would be further CMTs, there is the question as to whether they fall in the relevant date range of between the 1780’s (when the Nuchatlaht moved to the area) and 1846.

[333]   Mr. Earnshaw’s opinion is also based on use of a predictive model. No detail of the model was provided. Moreover, it is an industry tool to provide support for good forestry practices. It is not a means of estimating the presence of CMTs. It might provide guidance as to areas that ought to be surveyed, but it is not a survey in itself and cannot be taken as evidence of the existence of CMTs, much less their dating or their creators.

[334]   I agree with the Province regarding Mr. Earnshaw’s inferences of inland CMTs based on coastal CMTs. He has not provided evidence which allows for the inferences to be drawn, and his opinion is speculative. Nor do his own inland surveys provide evidence from which to infer the abundance of further CMTs that would be dated as having been done between 1780 and 1846.

[335]   Mr. Dewhirst also addressed the age and distribution of CMTs in the Claim Area and prepared a table summarising his analysis. In my view, the table is not reliable because of errors and lack of inclusion of data. These include:

[336]   As I have said about Mr. Earnshaw, presenting the data as a date range for a site skews the data, as the prior example for DlSr-99 shows. Another example is DlSr99 which Mr. Dewhirst shows as a date range from 1703 to 1949. A date range that wide is unhelpful. It is also misleading because only one tree pre-dated 1846.

[337]   This point was primarily addressed by Mr. Dewhirst, although Mr. Earnshaw also touched on it.

[338]   As I mentioned above, and as acknowledged by the plaintiff, Mr. Dewhirst reached his conclusion that the CMTs were made by the Nuchatlaht by way of inference. The essence of Mr. Dewhirst’s opinion is that the CMT sites within the Claim Area show a pattern of use that would have required intimate knowledge of the local forest, such as could only have been possessed by a long-standing resident community. The CMT sites, in Mr. Dewhirst’s opinion, could not have been created by non-residents passing by and carrying out harvests “adventitiously” or “haphazardly”. As the Nuchatlaht are the only Aboriginal community known to have been resident in the Claim Area during the timeframe when the CMTs were made, the only reasonable conclusion is that nearly all CMTs in the Claim Area were made by the Nuchatlaht.

[339]   Mr. Dewhirst points out:

[340]   Mr. Eldridge posited several alternate scenarios under which people other than the Nuchatlaht may have created some of the CMTs in the Claim Area:

[341]   I agree with the plaintiff that most of these scenarios are speculative, and even a bit far-fetched. It begs the question as to why groups from the other side of the inlet would want to harvest forest resources further away from their village sites in the absence of evidence that they lacked similar resources. With respect to inadvertent straying by other groups into Nuchatlaht territory because of ill-defined boundaries, that would be minimal and at the margins. It should not in itself have a major effect on this claim.

[342]   Nevertheless, Mr. Dewhirst’s attribution of all the CMTs to the Nuchatlaht begs the underlying question of who occupied the coastal Claim Area, which parts were occupied and when.

[343]   I have previously addressed the Nuu-chah-nulth perspective of ownership in the context of the coastal Claim Area. There is also an issue as to the concept of ownership over inland areas. This stems from a comment in Drucker 1951 at p. 48:

[344]   Dr. Drucker further noted at pp.60 and 9:

[345]   As I set out above, Dr. Drucker also said the Nootkans had a “pilot’s knowledge” of the coastal area and lack of knowledge of the interior:

[346]   Mr. Dewhirst countered this by saying Dr. Drucker was referring to the Nuu-chah-nulth in general and that there are no remote inland areas on Nootka Island “in the sense used by Drucker”. This was so because the inland areas are easily accessed by foot via creek beds and stream valleys.

[347]   As I will explain, I think this is another example of Mr. Dewhirst reaching a conclusion without a proper basis.

[348]   I first note that Mr. Dewhirst’s reasoning implies there are no creek beds or stream valleys in Nuu-Chah-Nulth areas other than Nootka Island, or that they are somehow different.

[349]   Further, Mr. Dewhirst has been inconsistent. In a different context, he relied on the difficult topography of the terrain, particularly around Nuchatlitz inlet. Ironically this was to support his disagreement with Dr. Drucker on another point dealing with Dr. Drucker’s references to the Nuchatlaht groups north of Esperanza Inlet being “leftovers”. Mr. Dewhirst said Dr. Drucker ignored that the area was defined by “steep and difficult terrain”.

[350]   I also note that Mr. Earnshaw referred to the difficulty of the inland terrain:

[351]   Countering Mr. Dewhirst’ opinion of no “remote” inland areas, Mr. Eldridge said that in his personal experience creek beds are not easily walked up. He prepared an analysis which showed interior CMTs did not correlate with creeks or streams, as they would be expected to if Mr. Dewhirst was correct.

[352]   In response, Mr. Dewhirst said he did not mean to say that people walked up the creek bed. Rather, he stated “the creek is an avenue to access, to get in and then to follow up the hillside or the mountainside”. As did Mr. Eldridge, I took Mr. Dewhirst to refer to walking up creek beds. That said, I am not sure Mr. Dewhirst’s revised description makes for easy access or makes the areas less remote than what Dr. Drucker meant.

[353]   The plaintiff raises several issues with respect to Mr. Eldridge’s comment regarding the lack of correlation between CMT sites and creek beds.

[354]   One criticism was that an underlying assumption of the analysis is that there is a uniformity of tree species in the forest, not the “jigsaw” of flora Mr. Eldridge describes elsewhere in his response. That is an opaque comment and not one put to Mr. Eldridge or commented on by Mr. Dewhirst.

[355]   Another criticism is that the accuracy of geo-mapping data for stream beds can be poor. However, a similar criticism was made by Mr. Eldridge of mapping errors made by Mr. Earnshaw. Mr. Eldridge acknowledged that any inaccuracies would be minor to the point of being hard to notice. In the absence of more evidence about the margin of error and its significance to the study, I cannot conclude that errors would be of any significance here.

[356]   The plaintiff also says Mr. Eldridge did not include all CMTs identified by Mr. Earnshaw. That might be true, but Mr. Eldridge’s analysis was meant to be random.

[357]   In the end, I do not accept Mr. Dewhirst’s evidence that Dr. Drucker’s comment regarding less knowledge and familiarity with the interior areas would not be applicable to Nootka Island, and the Nuchatlaht.

[358]   Aboriginal title is held communally. In making a declaration of Aboriginal title, the court must be convinced that the claimant group is the proper rights or title holder. I think those terms can be used interchangeably here. While this is a title case, Aboriginal title is an Aboriginal right to exclusive use and occupation of the land (Delgamuukw at para. 117), held collectively by the Indigenous group for present and future generations (Tsilhqot’in at para. 73).

[359]   As noted by Vickers J. at para 440 of Tsilhoqot’in BCSC, the Supreme Court in R. v. Marshall; R. v. Bernard, 2005 SCC 43 [Marshall;Bernard], related the identification of the proper claimant group to the continuity of identity requirement. (This is different than the second optional requirement for Aboriginal title, which concerned continuity of occupation.) McLachlin C.J.C. stated at para. 67:

[360]   The task, then, is to determine the historic rights-holding community and then to determine the claimant’s relationship to that group.

[361]   I have already stated I accept 1846 as the date for the assertion of sovereignty in British Columbia. I now turn to address the question as to who the rights holder(s) were in 1846.

[362]   To recap some key factual findings, there is no debate that resources and land were owned by the Chief at the local group level as part of his hahaułi. Although by 1846 the Nuchatlaht were organised into a confederacy, I accept Dr. Drucker’s revised 1983 view that the confederacy was not a political institution, but largely ceremonial. I also accept his view that the fundamental political unit was the local group.

[363]   The Province argues that the rights holders in 1846 were the local groups and not a larger Nuchatlaht community. The local groups are no longer in existence, having been absorbed into larger collectives such as the Nuchatlaht. From a procedural point of view, the Province agrees that “the Nuchatlaht, as a modern-day Indigenous collective, can advance an aggregate claim to historical territories, but the Nuchatlaht’s ability to bring the claim does not mean that it is the proper rights holder.”

[364]   On the Province’s argument, as the original rights holders were the multiple local groups, the current rights holders must trace their claim back to those groups. There has been no evidence to allow me to do that. Dr. Kennedy said, with a few exceptions, this would be an impossible task. The Court of Appeal noted the same issue in Tsilhqot’in BCCA at paragraph 146.

[365]   For its part, the plaintiff argues that Aboriginal title is conceptually distinct from how an Indigenous group traditionally “divided up” land ownership amongst itself. Aboriginal title is a modern communal right that is vested in the Indigenous community. The rights-holding community is not necessarily the same entity that traditionally owned particular parcels of land according to internal customary law. Thus, Indigenous collectives can advance aggregate claims to their territories, even when direct ownership of lands within those territories was traditionally divided amongst smaller subgroups. The plaintiff argues this is particularly so where, as here, community members enjoyed shared rights to access and use lands throughout the territory (a factual point which is in issue).

[366]   As I previously mentioned, except for the Shuma’athat, the plaintiff has said it does not rely on ownership by local groups which later amalgamated into a confederacy bringing their territorial holdings with them. In fact, virtually all of the evidence regarding local groups was, at first instance, adduced by the Province through Dr. Kennedy.

[367]   The Plaintiff relies on Delgamuukw, Saik’uz and Tsilhqot’in, which I will review now.

[368]   The plaintiff says that in Delgamuukw, the Supreme Court of Canada implicitly accepted that a communal claim could be maintained by the two plaintiff Nations – the Wet’suwet’en and Gitksan – despite land being owned by smaller Houses of which the Nations were composed. I do not agree with this interpretation of Delgamuukw, although as will be seen I do not find that to be determinative of this issue.

[369]   Delgamuukw began as a claim for 133 territories claimed by 71 Houses of the Wet’suwet’en and the Gitksan. The plaintiffs were 51 Hereditary Chiefs, some claiming on behalf of multiple Houses, or claiming multiple territories on behalf of one House. At trial, the action was dismissed by McEachern C.J.B.C. On appeal, the original claim was amalgamated into two communal claims brought by each Nation. No amendment to the pleadings had been made. The Supreme Court held (beginning at para. 73) that because there had been no amendment, the defendants had been prejudiced and ordered a new trial.

[370]   The plaintiff says that McEachern C.J.B.C. found that the historic holdings were held by the Houses. From that, it argues that if the Supreme Court thought Aboriginal title could only be proved by individual Houses, it would not have ordered a new trial based on ownership by the larger collectives.

[371]   However, McEachern C.J.B.C. did not make a finding of ownership at the House level. Rather, in para. 41, cited as authority for that proposition by the plaintiffs, he stated that was the argument of the plaintiffs. His reasons show he came to the opposite conclusion, namely, that the claimed territory was owned at the larger group level:

[372]   I also disagree with the submission that the Supreme Court impliedly agreed that the wider collective was the rights holder because otherwise it would not have sent it back for a new trial to be argued on that basis. Rather, the most that can be taken from the remit is that the Court did not dismiss that possibility out of hand.

[373]   The end result is that we are left with a finding at the trial level in Delgamuukw that the rights holders were the Houses. The factual finding was overturned but the Supreme Court did not weigh in on the legal issue. Delgamuukw therefore does not assist with the point in issue here.

[374]   Turning to Saik’uz, the plaintiffs brought an action in nuisance for damage caused by the damming of the Nechako River. They sought a finding – not a declaration – of Aboriginal title to support their action for nuisance. Kent J. concluded he could not make the finding because of competing claims of other Nations who were not before the court. Nevertheless, he went on to say that if he were wrong in that conclusion, he would have made a finding of Aboriginal title. In analysing that issue, he had to determine the rights holder.

[375]   Traditional Dakelh society was divided into sub-tribes which were in turn divided into extended family groups which were called sadekus. Traditional land ownership resided at the sadeku level. Each sadeku had an ancestral territory, called a keyoh, with well-defined boundaries within which the family had exclusive rights to fishing, hunting, trapping and gathering. Others could use the keyoh with the permission of the leader of the sadeku. The plaintiffs were two sub-tribe members of the Dalkelh. The issue was whether the rights holders were the sadekus, as was argued by the Province, or the plaintiff sub-tribes.

[376]   Kent J. accepted the sub-tribes - the Saik’uz and Stellat’en - as the rights holders, despite the fact that they did not traditionally own land and resources. His decision was largely based on the inability to trace the current Peoples back to the sadekus. He stated:

[377]   It is also apparent that Kent J.’s decision was in part based on the fact that he was only asked to make a finding of aboriginal title for the limited purpose of supporting a nuisance claim:

[378]   Turning to Tsilhqot’in BCSC, Vickers J. held that the Tsilhqot’in Nation was the proper title holder, despite argument by the Province that the bands comprising the Nation were the proper title holders.

[379]   Although Vickers J. (at para. 439) began with noting that a relevant factor is who, historically, made decisions about land use and occupation he noted (at para. 451) that the Province placed too much emphasis on the notion of a single decision-making body at the time reserves were established. He went on to downplay the search for a central decision maker, finding it akin to a search for an “organized society”, a criterion the Supreme Court in Delgamuukw did not refer to.

[380]   The Court of Appeal was more explicit. While accepting the fact that decision-making and governance traditionally took place on a localized level, it rejected the Province’s submission that the absence of a pan-Tsilhqot’in governance structure was fatal to the claim of the Tsilhqot’in nation:

[381]   On appeal, the Supreme Court did not deal with the issue of the rights holder, presumably because the Province did not appeal that aspect of the decision.

[382]   Vickers J. emphasized the common culture and language of the Tsilhqot’in, as the plaintiff does here with respect to the Nuchatlaht:

[383]   A crucial factual finding (which the Court of Appeal referred to at para. 147) was made by Vickers J. with respect to all Tsilhqot’in having been able to make use of the Claim Area:

[384]   Both Vickers J. and the Court of Appeal stressed that the identification of he rights holder must take account of the Aboriginal perspective. The Court of Appeal, at para. 149, said that was the primary perspective, and stated:

[385]   The Supreme Court of Canada has provided little guidance on this issue. In Marshall;Bernard, there was the brief reference in para. 67, which is quoted above. In R. v. Powley, 2003 SCC 43, a case concerning Métis rights in the Sault Ste. Marie region, the court upheld the trial judge’s finding of a historic Métis community:

[386]   These cases illustrate that determining the historic rights holder is a nuanced task. They establish that central control is not necessary for a larger collective to be the rights holder, and that the Aboriginal perspective must be considered. Indeed, the Court of Appeal said it was it was the primary perspective.

[387]   Turning back to the facts of this case, a major difference between it and Tsilhqot’in is the finding in the latter that all members of the Tsilhqot’in Nation had rights over all the territory. Here the evidence is that local group Chiefs carefully guarded their hahaułi.

[388]   The plaintiff has argued that “community members enjoyed shared rights to access and use lands throughout the territory”. Elsewhere in its argument the plaintiff characterised that as an implied right. The plaintiff relies on Mr. Dewhirst’s opinion to support that proposition. In turn, Mr. Dewhirst relied on this passage in Drucker 1951:

[389]   This does not go as far as to say there was an implied right of use; rather it indicates use required permission of the owner of the hahaułi. And, as I have said above, tribute often had to paid to the Chief for use of his hahaułi. Unlike the Tsilhqot’in, the Nuchatlaht did distinguish amongst themselves at the local group level as to the right to harvest resources.

[390]   The plaintiff says a key criterion, and one relied on by Vickers J., is the common culture and language (above para. 382). That criterion is not helpful in this case because all the Nuu-chah-nulth, in particular the northern groups, share a common culture and language. The bulk of the ethnographic evidence in this case concerned the Nuu-chah-nulth as a whole. As I said, Dr. Drucker only devoted two pages to the Nuchatlaht his book. Further, there was inter-marriage and a moving back and forth between not only local groups, but also the neighbouring Nations.

[391]   All that said, the Nuchatlaht local groups did identify themselves as Nuchatlaht. They did have a confederacy, even if it was ceremonial as described by Dr. Drucker. They shared a summer village, and there was some sharing of resources with permission of the hahoulthle owners.

[392]   It seems to me that if it is wrong to over-emphasize central decision making in a larger collective, as indicated by the Court of Appeal, it must also be wrong to over-emphasize the ownership of the hahoulthle at the local level.

[393]   In both Tsilhqot’in and Saik’uz the Province argued the appropriate rights holders were local groups. In both cases that argument was rejected. In Tsilhqot’in, Vickers J. remarked (at para. 445) that in all the cases he reviewed, the relevant historic community was the larger First Nation that existed at the time of first contact or sovereignty. In Delgamuukw, as I described above, the trial judge found that the rights holders were the larger Nations, not the constituent Houses, and the Supreme Court did not weigh in on the point. The Province, therefore, has not cited a case concluding the rights holders were the equivalent of the Nuchatlaht local groups.

[394]   I think it is significant to note there are no competing claims here. The plaintiff has framed its action to avoid overlaps. Notice of this action was given to the neighbouring Ehattesaht and Mowachaht/Muchalaht First Nations, because of early concerns raised by the Province about overlapping claims. Notice of the action has also been posted in Nuchatlaht communities as part of the effort to locate documents. The Ahousaht, Ehattesaht, Hesquiaht, Mowachaht/Muchalaht and Tla-o-qui-aht First Nations were all involved as respondents and appellants in a document production motion in this case brought by the Province. All of this has not brought forward any intervenors.

[395]   The Supreme Court in Delgamuukw (at para. 158) allowed for the possibility of joint Aboriginal title based on shared exclusive possession. Implied in this is the idea that more than one group can be a historic rights holder. One may ask why that would not apply when the two potential rights holders are the broader group and the constituent local groups.

[396]   The possibility of joint Aboriginal title demonstrates some flexibility in the common law of with respect to the determination of the historic rights holder. In Marshall;Bernard, the Court said at para. 48:

[397]   I see no impediment to the Nuchatlaht being the proper title holder, given the claim must always remain tethered to actual areas of occupation that meet the criteria of Aboriginal title. To hold otherwise in the circumstances of this case would down-play the Aboriginal perspective.

[398]   I conclude that the Nuchatlaht are the appropriate or proper historic rights holder.

[399]   I addressed the issue of whether the Shuma’athat joined the Nuchatlaht before or after 1846 and concluded it was the former. However, the plaintiff argued in the alternative that it did not make a difference to the outcome. The Province argues otherwise. I will address this issue here.

[400]   I pose the issue in the form of a question: if, as I have held, the appropriate claimant group can be the larger Nuchatlaht collective, what in principle prevents that claim from being based on the pre-1846 occupation of a local group which merged after 1846?

[401]   The Province’s answer, relying on Delgamuukw, is that Aboriginal title is inalienable. Elaborating on that in its written argument, it says:

[402]   I do not agree with the Province. I first note there is nothing in Delgamuukw to indicate the court was considering an Aboriginal group merging with another and bringing its land holdings – or Aboriginal title claim – with it. In fact, to my knowledge and that of counsel, this is the first case in which the issue has been raised. Moreover, the word “alienate” does not fit this scenario. The Shuma’athat did not alienate their land to the Nuchatlaht collective. Rather, they became part of that collective and merged their holdings into that of the larger collective which, on the plaintiff’s argument, has the legal consequence of allowing the larger collective to be the proper title holder of the merged territory.

[403]   It seems clear from the following excepts from Delgamuukw that the court was concerned with a sale or seizure of aboriginal lands and not the situation we are dealing with here:

[404]   Allowing the Nuchatlaht claim to be based on one that may have been available to the Shuma’athat had it still been a separate group invokes none of these concerns. In fact, those concerns would be realised if I were to accept the Province’s argument. There is no group that now identifies as the Shuma’athat. (Nor is there currently any other current local group.) This is not because their descendants have disappeared; rather it is because these groups have become part of the Nuchatlaht. To not allow the Nuchatlaht to make the broader claim would result in the disappearance of an Aboriginal title claim to what was formerly Aboriginal land in 1846 because of an amalgamation and shift in self-identity.

[405]   One of the concerns expressed by the Province was that a descendent member of a local group which joined the Nuchatlaht after 1846 might come forward in the future and make a claim on behalf of the local group. That is an unlikely scenario, given the notice given to the Nuchatlaht and neighbouring communities of the claim, and that, on Dr. Kennedy’s evidence, with a few exceptions it is now impossible to trace local lineages. Moreover, if there were to be a declaration of Aboriginal title in favour of the Nuchatlaht over land formerly occupied by the Shuma’athat, that would become a concern of the Nuchatlaht and not the Province.

[406]   I conclude that territory which could have been claimed by groups which merged or became part of the Nuchatlaht after 1846 can be included in a claim brought by the Nuchatlaht on its own behalf.

[407]   I now turn to the issue of the current rights holder.

[408]   The main legal debate between the parties is whether the plaintiff need show a continuing and present connection to the land being claimed.

[409]   The Province points to the following underlined portion of Lamer C.J.C.’s judgment in Delgamuukw as support for the proposition that in all cases an Aboriginal title claimant must show a substantial connection to the land from pre-sovereignty through to the time of the claim:

[410]   However, immediately following this, Lamer C.J.C. embarked on a discussion of continuity under the heading “If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation.” In my view, the comment in para. 151 was meant to address the case where present occupancy was being used as proof of occupancy at sovereignty.

[411]   This was also the view of Cromwell J.A., as he was, when writing for the Nova Scotia Court of Appeal in R. v. Marshall, 2003 NSCA 105, whose analysis I adopt. He noted the absurdity of the opposite interpretation:

[412]   On the further appeal of Marshall, the Supreme Court of Canada overturned the Court of Appeal’s finding of Aboriginal title, but not on this issue. At the outset of this section, I quoted McLachlin C.J.C. I here emphasize the following from it:

[413]   As Vickers J. noted in Tsilhoqot’in BCSC, McLachlin C.J.C. was linking the issue of continuity to the issue of the appropriate claimant. In the latter part of the paragraph, she was referring to the situation where current occupation is being used as proof of past occupation.

[414]   As Cromwell J.A. pointed out in Marshall, it would be illogical to recognise that Aboriginal peoples have been displaced or forcefully relocated, while at the same time requiring that a substantial connection to the land be maintained to the present. Consider, for example, a claim to an area that has been urbanized, or, in the alternative, a claim to a remote area that cannot be easily accessed or has become largely uninhabited: what type of substantial connection to the land should be expected?

[415]   With that in mind, I do not think there can be any serious issue that the current Nuchatlaht are sufficiently connected with the historic Nuchatlaht who used and occupied the Claim Area in 1846. The Province has partially admitted this in its Response to Civil Claim that I set out above at para. 20.

[416]   The local groups the Province has focussed on were part of the larger Nuchatlaht collective. There is no evidence of current local groups.

[417]   When British Columbia joined Canada in 1871, the Nuchatlaht became a band under the Indian Act. The evidence is that the present Nuchatlaht do not draw any distinction between band membership and Nuchatlaht community membership. There is no evidence of any self-identification with former local groups.

[418]   Put simply, the local groups have now been subsumed by the larger Nuchatlaht Nation which is the appropriate and proper present-day claimant. As I have said, to hold otherwise would be to ignore the Aboriginal perspective.

[419]   Moreover, although not argued by the parties, this is in accord with art. 3 of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which provides that Indigenous peoples have the right to self-determination, which includes the right to determine their political status. Under s. 2(a) of the Declaration of the Rights of Indigenous Peoples Act SBC 2019, UNDRIP is incorporated into the province’s laws.

[420]   In the Background and Overview section, I set out a map of the Claim Area. The Claim Area is based on Dr. Drucker’s Map 3, which I dealt with above at para. 144, and in part, Dr. Drucker’s equivalent map for the neighbouring Mowachaht to the south. The Claim Area was then reduced to eliminate any overlap of territorial claims by the Mowachaht and the Ehattesaht to the north. Most significantly, from the point of overall territory, this eliminated any claim to the area north of Esperanza Inlet, in which several traditional Nuchatlaht sites are located.

[421]   It will be seen that the northwest corner of the claim boundary loops south-east to avoid including Opemit and nearby land on a peninsula. This was for two reasons. First, the plaintiff excluded Opemit from the claim along with all other Indian reserves. Second, Dr. Drucker’s Map 3 shows the same boundary for Nuchatlaht territory because he noted that Opemit was an Ehattesaht village. I dealt with this earlier at para. 174.

[422]   In the introduction, I set out the requirements for a claim to Aboriginal title as stated by the Supreme Court in Tsilhqot’in. For convenience, I will repeat it here:

[423]   As I also noted, the plaintiffs seek to prove their occupation at the time of assertion of sovereignty from the historical record, as opposed to relying on continuity of occupation. This leaves a two-part test for this case: sufficiency of occupation and exclusive occupation. Apart from that, a major issue is whether the Nuchatlaht is the proper claimant group or title holder, which I dealt with above.

[424]   To ground a claim for Aboriginal title, there must be “sufficient occupation.” The latter part of the above quoted paragraph from Tsilhqot’in makes it clear the analysis is a nuanced one. Certainly, only a temporary physical presence is not sufficient. The use or occupation must be more substantial than a claim for Aboriginal rights, as the Supreme Court said in Marshall;Bernard:

[425]   While there must be physical occupation, it may be established in several ways. In Delgamuukw, the Supreme Court said:

[426]   In Tsilhqot’in, the Supreme Court elaborated on what constitutes sufficient occupation:

[427]   In Tsilhqot’in, McLachlin C.J.C. appeared to approve of the High Court of Australia’s remark that the elements of the test for Aboriginal title cannot be analysed independently of one another:

[428]   For what it is worth, I agree that a more holistic approach is preferable. For example, it is not apparent to me why exclusivity should not be considered as part of the sufficient occupation test. Nevertheless, in Tsilhqot’in (following Delgamuukw), exclusivity of occupation was articulated as a separate test:

[429]   In the subsequent paragraphs, the Court in Tsilhqot’in elaborated on what amounts to exclusive possession:

[430]   The Court noted, at para. 49, that exclusivity “must be approached from both the common law and Aboriginal perspectives and must take into account the context and characteristics of the Aboriginal society.”

[431]   I think it almost goes without saying that the ability to exclude others refers to other Aboriginal groups, and not to Western colonisers or explorers. To interpret it otherwise would be to indirectly incorporate the doctrine of terra nullius into the test for Aboriginal Title.

[432]   The plaintiff’s approach to proving occupation and entitlement to the Claim Area changed in emphasis over the course of the trial.

[433]   As discussed above, in its response to a demand for particulars, the plaintiff eschewed proving its claim through the identity or location of local groups comprising the Nuchatlaht in 1846, although it said “the evidence will make reference to the local groups referred to by Drucker.” In response to a question posed by me, the plaintiff explained this further:

[434]   The plaintiff explained why, in light of that, it would nevertheless refer to the local groups described by Dr. Drucker:

[435]   The existence of local groups and their sites in the Claim Area did, therefore, take up a substantial amount of trial time, both because the plaintiff emphasized this evidence and because it was a major issue for the Province.

[436]   However, the only direct evidence of specific area usage or occupation identifiable to the Nuchatlaht were the villages that the various local groups inhabited, and the confederacy village of Lūpȧtcsis. What little evidence there was indicated that the Nuchatlaht travelled between their villages by canoe. As I said earlier, the creators of CMTs and archaeological sites could only be inferred from occupation of the adjacent areas. Further, there was no evidence before me of fishing sites separate from the settlement sites or, for that matter, how the Nuchatlaht or Nuu-chah-nulth fished.

[437]   After the trial, I asked for further submissions on, amongst other things, how occupation of the whole Claim Area could be inferred from the local village sites and the evidence of CMTs and archaeological sites. The parties provided written submissions and there were three further days of argument on the issue. I will refer to these as the supplementary argument and hearing.

[438]   At the supplementary hearing, the plaintiff emphasized it was advancing a territorial claim. It argued, appropriately, that an Aboriginal title claimant was not limited to the areas of specific occupation or cultivation. In its supplemental written argument, the plaintiff said:

[439]   The plaintiff said that its claim was proved in a “top down fashion”:

[440]   This reliance on recognized borders was a major shift in the plaintiff’s prior emphasis. The starting point was the boundary drawn by Dr. Drucker in Map 3 and the neighbouring Mowachaht boundary, which was presented in another figure from Dr. Drucker. The plaintiff then noted subsequent maps showing the same boundary, including Mr. Dewhirst’s opinion. All of those, however, relied on Dr. Drucker’s boundary with no additional research of their own.

[441]   The plaintiff also relied on a map showing the Mowachaht/Muchalaht traditional territory contained in a 2005 forestry agreement with British Columbia. This is of limited relevance. Its provenance is recent, there is no mention of the Nuchatlaht on the map, and the agreement provides that it is not an acknowledgment by British Columbia of a Mowachaht/Muchalaht territorial land claim.

[442]   In the end, the evidence regarding the boundaries is limited to Drucker and his Map 3. Its repetition in subsequent citations does not make for further evidence.

[443]   I do not think a territorial boundary – even if recognised by others - is enough to show sufficient occupation on its own. In emphasizing territorial boundaries, the plaintiff ignores what followed in the part of paragraph 38 from Tsilhqot’in which they quoted from in their argument set out above (para. 438). This emphasizes that there must have been a strong presence over the land:

[444]   Moreover, Dr. Drucker’s evidence of the boundaries only goes so far. It does not assist in distinguishing between uses of the land which are amenable to Aboriginal rights as opposed to title. In his narrative, his focus was on how the local group’s boundaries were well-defined. On any analysis, I do not think Dr. Drucker’s notation of the boundary can by itself establish sufficient use of or occupation of the total Claim Area as is required in the test for Aboriginal title.

[445]   The question then becomes: over which parts of the Claim Area has the plaintiff proved use or occupation?

[446]   I set out much of the evidence for this above, and will here draw my conclusions, where necessary elaborating on what I have said already and add a focus on geographic location.

[447]   The use of the various Nuchatlaht local village settlements and camps in 1846 would be sufficient to establish a claim to title to those areas, and the Province does not argue otherwise. However, as I have said, they have mostly been made into Indian reserves and thus have been excluded from the claim. Nevertheless, their location is key evidence for the claim over the larger area.

[448]   The approximate location of these sites was discussed by Dr. Kennedy in the context of her analysis of the local groups. To the extent that her evidence diverges from Mr. Dewhirst, I accept her evidence. I find Dr. Kennedy is better qualified to analyze the historic documents, and while I have not accepted her opinion on all issues, she has been more measured and provided backup for her opinions. Mr. Dewhirst tended to make broad conclusions without foundation. As I said above, his omission of Drucker 1983 affects the credibility of his all his opinions. For the same reason, I also prefer Dr. Lovisek’s evidence regarding the history of the area and the people.

[449]   The Province prepared the following table summarising Dr. Kennedy’s evidence.

[450]   With respect to the Jala’th, in her written opinion Dr. Kennedy said the group had amalgamated with the Nuchatlaht by 1846. The Province points out that in her direct evidence, she questioned this. However, in my view, this was more of an afterthought in the context of a question concerning a different matter. I will therefore be guided by her original opinion.

[451]   With respect to the Shuma’athat, I dealt above with the debate as to whether they were part of the Nuchatlaht in 1846 or merged with them afterwards. I concluded it was likely the former. However, I also concluded that the result would be the same if they merged later because they brought their territories with them, and the plaintiff could base its claim on those holdings.

[452]   Not included in the preceding table is Aqī. I dealt with Aqī above at para. 155. I do not think it has been demonstrated that the site was occupied in 1846.

[453]   In summary, I find that all the sites in the preceding table were Nuchatlaht sites of occupation in 1846. In the alternative, as I have said above, if the Shuma’athat (or any other group for that matter) merged with the Nuchatlaht after 1846, the Nuchatlaht are the proper claimant group for that territory.

[454]   In order to give a picture of the geographic spread of these sites, I have annotated the following map, drawing squares at their approximate locations. In addition to the village or settlement sites, I have indicated the location for the CMT site DkSr-53 which I have referred to and come back to later. I have drawn a circle at the location of another CMT site near Belmont Point which I refer to later. The map also shows the Drucker Map 3 site numbers and the borders of the Claim Area. I stress that the map is for illustrative purposes only. The locations are approximate, and the squares and circles are not to scale.

[455]   Looking at the map, it will be noted these settlements are focussed on the west side of the peninsula between Esperanza and Nuchatlitz Inlets. With respect to the coast of Nuchatlitz Inlet, including Mary Basin and the Inner Basin, the only settlements noted by Dr. Drucker or the experts were Cō’ōma at the far end of the Inner Basin and Yūtckhtōk at the narrows.

[456]   When I pointed this out at the supplemental hearing, the plaintiff argued that a document introduced by Dr. Kennedy for a different purpose showed the use of Nuchatlitz Inlet. The document was a list of place names transcribed from a recording of an interview that Dr. Andrea LaForet of the Royal B.C. Museum conducted of an Ehattesaht elder, Joseph Smith, in 1979. The document is primarily a list of place names following a notation or heading: “Chief Felix Michael had the rights to the shoreline from:”.

[457]   Dr. Kennedy’s only purpose in referring to the document was to illustrate the interviews available at the B.C. Museum and as a partial glossary of place names. She did not refer to it as evidence of occupation by the Nuchatlaht pre-1846. Further, the plaintiff did not cross-examine Dr. Kennedy to see if she could elucidate the document.

[458]   The plaintiff’s reliance on the document was a change in their earlier position regarding the reliability of the B.C. Museum tapes, translations in general and this document in particular. With respect to the former, in its original closing argument (i.e., before the supplemental hearing was scheduled), the plaintiff stated:

[459]   With respect to this specific document, in their original argument the plaintiff highlighted the concerns that Dr. Kennedy herself noted with respect to its reliability. Dr. Kennedy said:

[460]   Another issue with this document is that Chief Felix Michael was born some 50 years after 1846. The reference to his holdings were presumably as Chief, which he became in 1914.

[461]   In view of all these factors, I do not think this document proves occupation of this area in 1846.

[462]   I turn now turn to the CMT evidence, which I set out at length above.

[463]   There is only one identified location which can be classified as interior – DkSr-53. Only 6 of the 71 CMTs here pre-date 1846.

[464]   Another site relied on by the plaintiff (identified as Site #6 in its supplemental submissions), not far from t’cala, refers to Borden number DlSr-99. This site had 54 dated samples. One was dated as 1703, which pre-dates when the Tacisath – the founding group of the Nuchatlaht – moved from Tahsis to the Claim Area. The balance post-dated 1846.

[465]   The plaintiff identified several other CMT areas, which it grouped into sites it referred to as sites 1-4. These sites had been identified by archaeologists in preparing site alteration applications. As acknowledged by the Province, these do show pre-1846 cedar harvesting and use.

[466]   Next, there are the CMT sites identified by Mr. Earnshaw in his surveys for this litigation. I concluded above that his evidence here is not helpful as he did not have permits to do sampling and on his own acknowledgement, he was “just walking lightly on the land and viewing what was visible”. There is no reliable dating.

[467]   Finally, with respect to CMTs, there are the inland areas identified by Mr. Earnshaw as having “CMT potential”. I concluded above this evidence cannot be used to prove the existence of CMTs, much less their dates.

[468]   The plaintiff also relies on the location of archaeological sites. Many of these are midden sites. I do not agree with the Province that the ones on the foreshore are not relevant because they are not in the Claim Area. Rather, they might be able to elucidate use of the immediately adjacent claim area, whether through further expert evidence (of which there is none) or through the possible drawing of inferences. However, I do agree with the Province that the 500 to 2000-year-old date range does not assist to show Nuchatlaht occupation without other evidence because, again, this pre-dates when the Tacisath moved to the Claim Area.

[469]   Mr. Earnshaw noted burial sites mostly along the coast. However, these were not dated, nor are they directly attributable to any group or Nation. To the extent it can be inferred that they are Nuchatlaht - such as ones found near Lūpȧtcsis or Nutcal - they do not advance the territorial claim beyond the general area of those sites.

[470]   The plaintiff also relies on a graveyard in Opemit, which is located outside the Claim Area. I dealt with Opemit earlier (para. 174). Given that I have held that Opemit was likely a Nuchatlaht site in 1846 there is no point me going into the somewhat lengthy debate on whether the graveyard was Nuchatlaht or Ehattesaht.

[471]   Lastly, the plaintiff relies on submissions made to the McKenna-McBride Commission in 1914 and the Ditchburn-Clark Commission in 1922, which I referred to beginning at para. 162.

[472]   With respect to the McKenna-Bride commission, the plaintiff relies on four of the requests made for additional reserves. Three of these are either close to or adjacent to the Owossitsa, Shoomart and Sophe reserves. The fourth refers to “five acres…at the mouth of the Outer Basin”. It is not possible to ascertain a location for this within the broader area of the Outer Basin of, presumably, Nuchatlitz Inlet.

[473]   Turning to the Ditchburn-Clark inquiry, the plaintiff relies on five out of the ten requests made for further reserve allotment.

[474]   Two of the five sites are near or adjacent to the Owossitsa, Nuchatl and Ahpakto reserves.

[475]   The third site request noted was “…sixty acres at the place marked W…on Nootka Island and which in between Belmont Point and Benson Point and almost directly behind Bare Island, at the bay, on both sides of the creek…”. This site is not adjacent to a reserve. Although noted by the plaintiff as being near Drucker Site #19 – Apaqtu – that cannot be the case because Belmont Point is to the northwest of Benson Point, and Apaqtu is in turn north of Belmont Point.

[476]   The fourth site request relied on by the plaintiff was “all the good land on timber limit 6724 along its entire fore-shore…where there used to be an Indian village, they can have the timber we want the land (Esperanza Inlet and south of Centre Island.)” It is not noted who the “we” and “they” are; presumably one refers to the Nuchatlaht and the other the Ehattesaht. The plaintiff locates this as being at or close to Drucker Site #25 – tca’la.

[477]   The fifth and final requested site the plaintiff relies on was:

[478]   In summary, the general areas which I accept as evidence of Nuchatlaht occupation or use in 1846 are:

[479]   On the annotated map, I have marked the CMT site near Belmont Point. The other areas that I accept show Nuchatlaht use are close to the village sites I highlighted, so they are not shown separately.

[480]   From the map, it will be seen that there are large areas of the coast where, in 1846, occupation has not been demonstrated. This would be the case even if Aqī were included.

[481]   Can I infer use and sufficient occupation of the whole Claim Area from this evidence? I do not think so. I am cognisant that in Tsilhqot’in, the Supreme Court stated in para 50. (quoted in full above):

[482]   However, the problem here is that evidence of this type of use and control and concept of ownership is absent for most of the Claim Area:

[483]   There is no evidence of the territory of any local chief’s hahoulthle beyond the village sites which may be inferred as being in the relevant local Chief’s hahoulthle. While I have concluded that the Nuchatlaht is the rights holder to the territories of the former Nuchatlaht local groups, that cannot expand the title to include lands which were not sufficiently occupied to meet the current test of Aboriginal title.

[484]   I am also cognizant that in Tsilhqot’in the Supreme Court said at para. 38 that “…the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes…” This evidence is also lacking with respect to the whole Claim Area. Moreover, as I said above, in the latter part of the paragraph the court said that a strong presence over the land is required.

[485]   Whether this be called a territorial claim or not, I do not think that Dr. Drucker’s boundary can fill the evidentiary gap.

[486]   I turn to the issues of exclusivity and the Nuchatlaht’s ownership perspective. When I refer to the Nuchatlaht territory here, I am referring to the more limited areas that I have defined above, which would have been encompassed in a local chief’s hahoulthle.

[487]   I do not think the Province contests that with respect to local Chiefs’ hahoulthle, the Nuchatlaht had a concept of ownership that meets the requirement for an Aboriginal title claim. As I described this above, the sense of ownership over land and resources was so heightened as to draw remarks from western people who first encountered the Nuchatlaht. The Nuchatlaht’s concept of ownership matched or exceeded that of the common law.

[488]   Turning to the issue of exclusivity, the Nuu-chah-nulth concept of ownership of land and resources included an expectation of exclusivity. Boundaries of the local Chiefs’ hahoulthle were well known (although not in evidence).

[489]   The court in Tsilhqot’in at para. 48 – set out in full above - said that “[e]xclusivity should be understood in the sense of intention and capacity to control the land…” The Province interpreted capacity to control the land as ability to defend it militarily from trespassers or invaders. It argued that the Nuchatlaht had “little capacity” to exclude others from using the Claim Area due to their relatively small population, except – possibly – when they were all gathered at the summer village of Lūpȧtcsis.

[490]   However, as para 48 Tsilhqot’in shows, the analysis is more nuanced. Marshall;Bernard reinforces that. The court in Marshall;Bernard stated:

[491]   The capacity to control, then, must be looked at in relation to the intention of the claimant group and the surrounding evidence, including the way in which the society was organised. On any analysis, the Supreme Court did not posit a scenario where an Aboriginal group must demonstrate that it had something akin to an effective and organized militia.

[492]   There is no evidence of incidents where the Nuchatlaht had to defend their territory from others or that they fought wars which they lost. Dr. Drucker noted that “intraconfederacy wars were very rare, almost unknown in fact except for one or two remote traditions”: Drucker 1951 at p. 220. There is evidence of fortifications, albeit not specifically identified to the Nuchatlaht, and access by the Nuchatlaht to rifles. The fact is that whatever “system” was in place appeared to have worked because there is no evidence of attack against the Nuchatlaht.

[493]   The Province also focussed on lack of evidence that, as per Dr. Lovisek, the Nuchatlaht “collectively and overtly engaged in the enforcement of trespass”. However, there is no evidence of acts of trespass that might have required some sort of enforcement or defensive action. As I mentioned above, Dr. Drucker reported his informants did not know of any instances of trespass. He noted that Chiefs allowed the use of their resources to members of other groups, but as was said in Tsilhqot’in at para. 48 (quoted in full above), “the fact that permission was requested and granted or refused, may show intention and capacity to control the land”.

[494]   In my view the plaintiff has demonstrated an intention and capacity to control the land I found it occupied in 1846.

[495]   I conclude the plaintiff has not proved its claim for Aboriginal title to the overall Claim Area.

[496]   That said, when I outlined the areas of occupation, I frequently used the language “near or adjacent to” reserves or accepted settlements. There may be areas of sufficient occupation or use that are near the reserves or fee simple land over which the plaintiff may be able to establish its claim to Aboriginal title. For example, if there are CMT sites that are adjacent to a reserve, the plaintiff may have a claim to them and the area between them and the reserve.

[497]   However, the claim was not presented in that manner. I do not think it is open to me to make more piecemeal declarations without hearing from the parties. And even if that were open to me, I would not have the capability to do so without more detailed maps showing precise locations along with further submissions.

[498]   It may be that this case demonstrates the peculiar difficulties of a coastal Aboriginal group meeting the current test for Aboriginal title, given the marine orientation of the culture. For example, there will probably not be trails between one coastal location and another, given that the means of transport was primarily by canoe. This may be indicative of the need for a reconsideration of the test for Aboriginal title as it relates to coastal First Nations. That would be for a higher court to determine.

[499]   If the plaintiff wishes to seek a declaration for smaller areas, it should set a further hearing to canvass the procedure to be followed. I stress that I am not pre-judging any of the issues or whether a pleading amendment would be necessary. I am merely leaving it open to the plaintiff to come back before me to canvass these issues should it wish to do so. I ask that the plaintiff advise me of it’s position on this within 14 days, or alternatively advise how much additional time it requires.

[500]   If the plaintiff does not wish to advance this argument, the order will be that the action is dismissed.

[501]   If costs need to be spoken to, a date should be arranged as soon as possible.