Aboriginal Title On Nootka Island

A court can end up deciding the fate of an island by looking at the scars on cedar trees and counting the rings inside them. We dig into a new British Columbia Court of Appeal decision on Aboriginal title for Nootka Island off Vancouver Island, where the key legal question is what “sufficient use” meant at the moment of sovereignty in 1846 under the Oregon Treaty. That one date forces everyone to reconstruct the past using expert anthropology, historical records, and physical evidence on the land.

We talk through the building blocks of an Aboriginal title claim in Canada: proving the proper Indigenous collective, demonstrating continuity and exclusivity, and even answering foundational questions such as whether the society had a concept of ownership. Then we get into the appellate turning point: culturally modified Western red cedar trees in the interior. The court challenges the idea that a marine-oriented culture only “used” the coastline, noting that canoes, paddles, ropes, hooks, clothing, and ceremonial items all come from forests. The discussion also tracks how the claim is framed to avoid competing interests for now, and why the ruling’s impact on the Forest Act and Parks Act raises real governance and resource questions.

We finish with a very different legal problem from Provincial Court near Enderby on Highway 97A: a tragic crosswalk death on Canada Day and a charge of driving without due care and attention. By breaking down Motor Vehicle Act section 179, we sort out right of way, what counts as being “on the highway,” the pedestrian duty not to step into traffic when it is impracticable for a driver to yield, and the role of reaction time evidence in the acquittal.

If you like practical legal analysis from BC courts with real-world stakes, subscribe, share the episode with a friend, and leave a review. What part of these rulings do you think will matter most going forward?

Follow this link for a transcript of the show and links to the cases discussed.

Transcript

Reading A New Title Decision

Adam Stirling 0:10

In terms of where we're going today, I'm reading another page involving Aboriginal title this time on Nutka Island on the west coast of Vancouver Island.

The Legal Test And 1846

Who Holds Title And Ownership

Culturally Modified Trees And Evidence

Claim Limits And Laws Set Aside

Historic Maps And Island-Wide Title

Michael Mulligan 0:22

So very interesting decision. It's sort of both it's timely as well, with all of the debate going on with respect to the Calichan decision, and of course on Vancouver Island. And so this decision just came out last week, and it's a decision of the British Columbia Court of Appeal dealing with Nutka Island. And the background of it, it's a uh claim for Aboriginal title with respect to the entirety of that island. Uh and there had been a trial on that uh issue. Uh, and the judge at the trial had concluded uh that uh it had not been established that there should be um uh uh that sort of title to the entirety of the island, but rather only with respect to uh an area kind of around the boundary of it, sort of near the ocean. Uh and so it's yeah, interesting reading uh what the how the Court of Appeal approached uh this. Uh and the the argument uh or the approach for the Court of Appeal, uh first of all, they started out with what would be necessary to establish this kind of uh title, Aboriginal title, uh, and they said that this kind of a claim requires a test to determine whether, first of all, there's evidence to establish a sufficient sufficiency, continuity, and exclusivity in terms of uh use of the entirety of the island uh as one of the uh sort of the core of what has to be decided. But when you read the decision, it it's also clear just uh how many uh other underlying things can be issues in these uh cases based on how the law is developed, um uh because of uh uh how long ago these things uh occurred. Uh and the background to it, the Court of Appeal points out, is that the uh assessment as to whether uh uh those requirements in terms of sufficient um sort of use of the land uh are made out is that you have to look back at what was going on in 1846 uh when the British Crown asserted sovereignty uh pursuant to the Oregon Treaty. Uh and so the starting point includes some things that you might not even think would be uh potentially challenging, but they are given uh just the uh how old these claims are, uh including things like uh does the uh uh Neutralit people who are making this claim do they comprise uh an uh appropriate group uh to be uh possible title holders? Uh and so the court at trial was dealing with things like uh, you know, do do they, you know, was this a a group of people at the time? Uh did it meet the definition of a band within the meaning of the Indian Act? They ultimately the language they used here is they say they meet the modern day requirement for being an indigenous collective descending from uh a historic indigenous group uh uh that uh has lineage going back to the relevant time. Uh and so they were looking at things like expert evidence from anthropologists and others about things like were they was this group a part of a confederacy or how was it organized? Uh but ultimately the trial judge was satisfied on that point, uh, and that wasn't interfered with by the Court of Appeal. The Court of Appeal then goes on to look at other things like, for example, one of the issues that they assessed was uh whether that uh First Nations group uh had a concept of property ownership. Um and uh the conclusion on that front was that uh yes, there was clear evidence that uh that group had uh shared cultural values that included a concept of ownership. Uh, and they concluded that uh the way they viewed it was that uh the uh things including the land uh was viewed as uh owned by the chief, uh, and that the uh bounty of the things owned by the chief were to be used by uh other people who were in that group. Um and so they discussed that. Uh and then the argument made on the appeal uh amounted to uh an argument that the trial judge, who had concluded that uh it had only they had only established uh that they had a sufficient connection with sort of the area near the uh ocean, uh, that was based on a conclusion that uh the uh Chalyot people were primarily marine oriented in their culture. Uh but uh the Court of Appeal found that uh in order to do that, uh they would have needed to make use of things like canoes, paddles, whaling harpoons, clothing hats, ropes, fish hooks, storage boxes, drums and rattles and masks, all of which would have come from trees. Uh and so the appeal in large part turned on an assessment of um uh now historic evidence uh about what were referred to as culturally modified trees, which is uh is under I understand to be uh Western red cedar trees that look like they'd been modified or some of their bark or other things would have been used for the production of those um objects I just mentioned. Um and then it's further complicated by virtue of the fact that in order to have relevance, there there were these 93 trees in the area that was being claimed in kind of the inland area of the island. One of the other things that arose was an issue about look, even if there's some evidence that the tree at some point was modified or the bark was taken off or something, it then became an issue of well, when did that happen? Uh and was that before or after um 1846? Uh and so the process included uh evidence about uh counting of the rings on the trees to try to determine how old the trees were that had uh were used for the uh the expert evidence was for the production of those uh various things, canoes and paddles and wheeling harpoons and this sort of thing. Um and so there was uh the Court of Appeal had came to a uh a different conclusion than the trial judge in terms of um what how many trees uh would have been used in that way, culturally modified, uh, in the inland area uh on uh Nukta Island. Uh and while the uh trial judge had concluded that there just wasn't enough uh evidence to establish uh that the uh they had been use of the inland portion of the um area, the Court of Appeal concluded that that wasn't approached correctly uh and that uh it it didn't uh it's not necessary to prove simply that there was either like a uh village or a cultivated area or something. Um there can be sufficient use if uh uh a group which would be um a uh partially nomadic group uh could have used uh uh territory for things like uh collecting, using trees or hunting or doing other things like that, even if it wasn't um sort of developed uh in the way that a uh village site uh might be developed. Um and so the uh Court of Appeal came to a different conclusion than the uh trial judge and concluded that in particular the evidence of these ninety-three trees uh was uh sufficient to establish that uh there had been uh a use of this uh inland area, uh uh not just uh the area near the uh ocean. Um and then another one of the things which was interesting reading this Court of Appeal decision is that uh there was also a claim to um uh issue about sort of what all was being claimed here. And so the particular claim, and this is has some similarities with the claim from uh dealing with Richmond, uh the area in Richmond, um the claim was specified to at this point deal with um only land for which there wasn't a competing claim, is the language used. And so in this particular case, uh they expressly excluded land which was designated as a reserve land, land held in freehold by other people other than the Crown, land held by Canada, or land claimed by neighboring First Nations. Uh however, uh the Court of Appeal points out that the litigation was not intended to exhaustively address and resolve the uh land claims, and that those other things, um Indian Reserve land, land claimed by other groups, or free hand freehold land owned by private people other than the crown, uh may be the subject of future litigation. And that's I think similar to the position uh taken by the Cowichan with respect to that land in Richmond. It's not uh we're not doing those things, it's just not right now. Yeah. That may come later. Uh and so that's made expressly clear uh by the Court of Appeal in this decision. One of the other things which is interesting about it is that uh the initial claim, uh which again the judge only found sort of was sufficient for the area within, I think it was like a hundred meters of the ocean, uh, and the court of appeal disagreed and found the tree evidence was enough to cover the entirety of the island. Uh, in addition to uh allowing the appeal on that basis, the Court of Appeal also uh allowed a claim which invalidates the operation of the Forest Act and the Parks Act uh for the entirety of the area. And so uh uh, you know, again, we're still at the stage of figuring out well, what does the Aboriginal title mean? But uh at least at this point, dealing with the particular land excluding where all those other things are going to be potentially controversial, uh the order from the Court of Appeal uh includes that the Forest Act and the Parks Act no longer apply on the entirety of the island. Um historic maps made by like uh you know professors or anthropologists or others that might have looked at things like these trees. Uh one of the maps that was relied upon had what was described as a zigzag line along the boundary between uh two different First Nations territories. Uh and so there's speculation about what does the zigzag line mean? Is it sort of uh I'm unsure? Or presumably it wasn't that the border was back and forth as the line was drawn. And the conclusion was that usually zigzag lines were intended to indicate something about the height of land, and that seemed to be sort of the accepted conclusion about what that meant, suggesting that somehow the border between the two groups uh may have been at least indicated by the uh doctors who was relied upon, uh no longer here to explain to us what that means means, that that was an indication of uh a high point or uh uh mountains or things along that area. And so that was the basis upon which uh that uh boundary was used uh in this uh decision. And so the result of the Court of Appeal decision is that the uh entirety of Newton Island has been found to be subject to uh aboriginal title. Uh and interestingly, depending on whether you read the text of the decision or the uh court note about it, it's either 201 or 210 uh square kilometers. Uh and so uh maybe that's a little complexity as a result of the zigzig line. Uh and so that's the latest in the Court of Appeal in the case involving Nota Island. Uh and just looking at it there, it gives you an idea of just how complicated and uncertain um some of these things can be, because literally uh they're gonna turn on things like counting up trees and rings in trees and trying to make a determination about you know what was going on and who was using it, and was it sufficient in the uh area back in 1846? And so whether the this perhaps this case will be off to the Supreme Court of Canada, but at least that's the uh uh conclusion on Mickey Island from the Court of Appeal from last week.

Crosswalk Tragedy On Highway 97A

Adam Stirling 12:52

Michael, Michael, Michael, running into a cross clock when there was not efficient time for a driver to stop.

Why The Lights Never Flashed

Right Of Way Under Section 179

Reaction Time Analysis And Acquittal

Michael Mulligan 13:20

Well, this this was an event that took place uh near Enderby on Highway 97A, which is sort of about halfway between Vernon and Salmon Arm. Um and it was a uh uh tragic accident. It occurred uh on Canada Day. The fellow who was driving is a was a 60-year-old school teacher uh who was driving with pretty heavy traffic being Canada Day. And so he was driving there apparently 10 or 20 kilometers below the speed limit just because of all the traffic. Um and the issues in the case uh are interesting because they they deal with some, I think, pretty common things for people in terms of like who's got the right of way and who's got to do what uh when somebody's crossing the road. Uh and uh the case is also interesting. There were uh a whole number of witnesses because it was quite busy, including various professional drivers, retired people, so on. There are lots of people who saw what uh what went on. Um and at least there was a partial video from a uh camera at a gas station or gas pump. And so the uh the background involved uh the uh uh the pedestrian who uh tragically was killed in the accident, um, was standing uh on the uh side of the this is like a supportant uh side of the highway, uh and it was a place where there was a marked crosswalk with one of those buttons you know you can push where it caused the lights to wigwag on and off, like the yellow lights, not a stop stop like not a stoplight, but like those yellow uh crossing lights. Uh and the the evidence from the uh multiple witnesses included uh the uh man, the pedestrian, making a motion kind of towards the button that you push to make the lights go on. But none of the witnesses uh observed the crosswalk lights actually activate. Uh and so it's unclear why that didn't happen, whether the man missed the button or didn't push it hard enough. Uh the police went and tested the button out a couple of weeks later, I think it was like 17 days later, and it worked when the police pushed it. Uh but there's no explanation for quite why the lights didn't apparently go on, according to anyone who observed what happened. Uh and so one of the interesting things this engaged and that the judge had to wrestle with was the legal status of the place that the man was standing uh before he, and it sounds like ran or jogged into the road. Um the the evidence from the video showed the man uh before he went into the road um uh kind of hunching down. It was described as or like crouching down like you know, like a runner might crouch down before they started a uh a race. And so he kind of crouched down, uh looked well at least a couple of directions, apparently didn't see the vehicle coming because he, after crouching down, then ran straight ahead into the crosswalk uh and got hit. Uh and so one of the things the judge had to deal with here, because this was a case of uh charge of driving without due care and attention, was well, whose uh obligation is it uh to uh deal with the person who's uh the pedestrian in that circumstance? And the Crown's argument was, well, that the driver uh had an obligation to yield to the pedestrian standing in this area on the side of the road. And so the judge had to look carefully into what was that area. Uh and uh that matters because of how the Motor Vehicle Act is phrased. Uh because the Motor Vehicle Act speaks about things like uh an obligation to exercise due care with respect to a pedestrian who is on the highway, on the highway. Uh and so the area that he was standing wasn't like a sidewalk, it was kind of like a dirt area with like weeds and stuff growing. And so by looking carefully at the definition of what is a highway, the judge concluded that where this person was standing wasn't on the highway, it was effectively next to the highway, right? Uh and that has some meaning in terms of who has to do what. Uh there's uh a section of the Motor Vehicle Act, 179, that again, it's gonna have an impact on a lot of people's lives every day just as you go about your business dealing with like who has to do what. And that section 179 of the Motor Vehicle Act says that, first of all, a driver of a vehicle must yield the right of way to a pedestrian where traffic control signals are not in place or not in operation. Apparently that's here because the lights didn't go on and off, according to anyone who watched it. When the pedestrian is crossing the highway in a crosswalk, and the pedestrian is in the half of the highway in which the vehicle is traveling. And so that's like a yield obligation for the driver. But the judge found that y there isn't an obligation to yield like when the lights aren't on, as they weren't apparently, and the person isn't in the highway or on the highway. He's next to the highway, right? And that same section of the Motor Vehicle Act 179, sub two of it, imposes obligations on pedestrians, including this too. A pedestrian must not leave a curb or other place of safety and move into the path of a vehicle that is so close it is impracticable for the driver to yield the right-of-way. So you can't just go into a uh crosswalk uh and expect the traffic to part like the ocean, right? It's um both pedestrians and drivers have an obligation. Uh and from the driver's perspective, it's once you've got somebody who's on the highway, you have an obligation to them. Uh and there can also be an obligation depending on things like lights. Are those on, right? Is this um what kind of a spot is this? Um, and so both the driver and the passenger can have obligations to do things. Uh, and I guess that sort of makes sense, you know, sort of on one level, pedestrians can't just leap into traffic hoping that the uh expecting that the cars are all going to stop for them. And on the other hand, when you've got somebody who's on the highway, uh you you then have a pedestrian on the highway, a driver is then going to have an obligation to um uh you know uh take care to avoid uh hitting them. Um and so that's why it mattered where exactly this person was standing before he decided to run into the crosswalk. Um and the uh police did it looks like a thorough investigation. They they had done like a reenactment and they were trying to figure out like how much time the driver would have had to react. And at the end of the day, the judge concluded that you know, driving at 44 kilometers an hour, the reaction time would have been one and a half seconds by the time the person actually ran into the crosswalk. Um and the judge, on hearing all of that, was just not satisfied uh that the uh driver had uh failed to uh drive without with due without due care and attention. Uh and so uh on that basis the man was acquitted. And so it's an interesting case because it first of all demonstrates what you said in the headline, which is not every accident's an offense or crime. Uh and it's also interesting because it does have that careful analysis that looks at the uh corresponding obligations of both drivers and passengers. And even if you're in a crosswalk, uh ultimately when you get hit, that doesn't necessarily mean it's the driver's responsibility, uh, particularly when the lights aren't on and there would have been and you went out there if a pedestrian goes out there without enough time for the driver to stop. So that's the latest uh on provincial court.

Adam Stirling 21:13

All right, Michael Mulligan with legally speaking, second half of our second hour every Thursday. Thank you so much. Pleasure as always. Thanks so great. Thanks so much. Always great to be here. All right, quick break news next.