In a climate of political alarmism, the BC Court of Appeal continues to apply well-established legal principles to recognize Aboriginal title
Case Comment on Nuchatlaht v. British Columbia, 2026 BCCA 137
OVERVIEW
What happened: On 2-April-2026, the British Columbia Court of Appeal reversed a trial court decision and said the Nuchatlaht have Aboriginal title to the full claim area on Nootka Island (about 201 km²).
Why the earlier decision was overturned: The Court of Appeal said the trial judge’s finding of Aboriginal title to only a small area of coastal lands on Nootka Island overlooked important evidence about how the Nuchatlaht used the island, including inland areas, and was too narrow in its application of the test for Aboriginal title.
Why this matters: This decision supports a practical way of looking at Indigenous land occupation – based on how people lived, travelled, harvested, and governed their lands.
Courts should look at the territory, not just small spots: The Court rejected the trial judge’s “inappropriately narrow site-specific approach when assessing the claim” (para. 127).
Don’t set the bar unrealistically high: The Court disagreed with the trial judge’s “insistence that the Nuchatlaht fill “gaps” in the evidence of use” (para. 127) and recognized it can be hard to prove every detail of historic land use today – for example, because logging and limited archaeological work can erase or hide physical evidence.
Indigenous laws and boundaries matter: The Court relied partly on how the Nuchatlaht and neighbouring Nations understood and enforced territory boundaries, along with evidence of regular and exclusive use of the land and resources.
Bottom line: The Court declared Nuchatlaht title to the entire claim area, not just a small area of coastal lands, providing guidance that can help other Indigenous Nations demonstrate Aboriginal title based on their laws and uses of their territories, without being held to an unachievably high burden of proof.
THE COURT DECISION
The British Columbia Court of Appeal (BCCA) appears unfazed by recent political alarmism about recognizing the title and rights of Indigenous peoples (including from BC premier David Eby). In its April 2, 2026, decision in Nuchatlaht v. British Columbia, 2026 BCCA 137, the BCCA applied well-recognized constitutional principles to overturn a lower Court ruling and declare Aboriginal title to the entire area sought by the Nuchatlaht in the case.
The BCCA prefaced its reasons in Nuchatlaht by noting that Aboriginal title is an existing legal right recognized at common law and protected by the Constitution of Canada (paras. 5-6), including the following observation:
Before addressing the specifics of this case, we should note that while reconciliation of the people of Canada with Indigenous people may be the result of resolution of Aboriginal title claims, that is because those claims will be resolved in a just way, in accordance with wellestablished legal principles, rather than by virtue of a political imperative. Aboriginal title, where proven, is a legal right recognized at common law.
The message, delivered in the careful and considered language of an appellate Court, is clear: Aboriginal title is a legal and constitutional right, which must be addressed by the courts in a manner unswayed by the political climate of the day.
Case History
The case had been the subject of two judgments from the BCSC. In the first judgment, the BCSC concluded that Nuchatlaht had not proven title to the full 201 square kilometre claim area but accepted that there might be sites within that claim area for which the Nuchatlaht could prove title. The BCSC invited submissions on this issue, leading to a second judgment in which the Court rejected the Nuchatlaht’s title in the broader claim area but found Nuchatlaht title to a smaller area generally below a 100-metre-elevation contour along the relevant coastal area, with some modifications.
BCCA Analysis
In the appeal, the BCCA affirmed that the test for Aboriginal title is “founded upon occupation that meets tests of sufficiency, continuity (where the title claim is based on present occupation) and exclusivity”, and noted “[f]or the purposes of this appeal, the primary element at issue is sufficiency of occupation” (paras. 7-8). In this regard, the BCCA summarized several errors of the BCSC (para. 129):
In our respectful view, the trial judge erred in three respects:
1. First, he erred by concluding there was “almost no evidence” of the use of the interior of Nootka Island by the Nuchatlaht. That conclusion reflected a material misapprehension or disregard of material evidence.
2. Second, he misapplied the test for establishing sufficient occupation by requiring evidence of “specific use” of areas within the recognized boundaries of the area occupied by the Nuchatlaht and by requiring all gaps to be filled.
3. Third, in allowing the modified title claim, he drew an arbitrary boundary that was not based upon the Nuchatlaht’s manner of life, material resources, and technological abilities, or the character of the lands claimed.
An important foundation for the Nuchatlaht BCCA decision was the Supreme Court of Canada (SCC) decision in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. In Tsilhqot’in, the SCC rejected “a narrower test for Aboriginal title [based on] site-specific occupation” that “results in small islands of title surrounded by larger territories where the group possesses only Aboriginal rights to engage in activities like hunting and trapping” (para. 29). Instead, the SCC affirmed “a territorial use-based approach to Aboriginal title” (para. 56). In Nuchatlaht, the BCCA practically applied this guidance to the evidence, rejecting a standard of proof and specific use that would be so demanding as to effectively revert to the “small islands” conception of title repudiated in Tsilhqot’in.
In reaching its decision, the BCCA relied on the SCC’s rejection of a site-specific, “postage stamp” conception of Aboriginal title, and affirmed that “the standard of proof does not demand notorious or visible use akin to proving a claim for adverse possession” (para. 197). Indeed, the BCCA emphasized the importance of considering the evidence in a manner that appreciates “the evidentiary difficulties inherent in adjudicating this Aboriginal title claim”, for example by accounting for the fact that culturally modified trees relevant to proving title may have been impacted by prior logging, and that most archaeological surveys in the area were forestry driven (para. 142).
Title Declaration
The BCCA declared Nuchatlaht title to the entire claim area, rather than on a piecemeal basis, relying among other things on boundaries established as a matter of Indigenous law (para. 192):
In our view, that evidence establishes that in 1846 the Nuchatlaht exercised control over not only the territory identified by the trial judge, but also the north coast of Nootka Island and the coast of Nuchatlitz Inlet and south from there along the outer coast of Nootka Island to a point near Ferrer Point. The evidence is that Chief Michael, highest ranked or “first” chief of Nuchatlaht and chief of the tacīsȧth local group, defined his hahaułi as including the outer coast of Nootka Island south to the waterfall [at Calvin Creek], which marked the boundary between the Nuchatlaht Chief's hahaułi and the Mowachaht Chief's hahaułi.
The BCCA added at para. 196:
In our opinion, the identification of the territory over which the Nuchatlaht exercised exclusive occupation, coupled with the evidence of the Nuu-chah-nulth’s firm concept of ownership extending to “the fishing places in the rivers and the sea, and hunting and gathering locales” (Drucker at 248), and regular use of these resources throughout the Claim Area is sufficient to establish the title claim on a balance of probabilities.
Indigenous Laws and Reconciliation
In Nuchatlaht, the BCCA affirmed that it is not only the legal conception of Aboriginal title, but also the practical approach to proving it on the evidence, that should reflect a “territorial use-based approach” accounting for the laws of Indigenous peoples themselves. In doing so, the BCCA bore out its opening observation that reconciliation is best supported by resolution of Aboriginal title “in a just way, in accordance with wellestablished legal principles, rather than by virtue of a political imperative.”
Moving Forward Together: Haida Title to Haida Gwaii by Consent
On September 5, 2025, the BC Supreme Court heard an application by the Haida Nation that proceeded with the consent of the governments of Canada and BC (the “Consent Order”), to reflect recent agreements recognizing Haida title to Haida Gwaii in the litigation seeking Haida title to Haida Gwaii (the “Haida Title Case”) ¹ .
Nigel Baker-Grenier, and Veronica Stanford - November 19, 2025
Application for Aboriginal Title by Consent
On September 5, 2025, the BC Supreme Court heard an application by the Haida Nation that proceeded with the consent of the governments of Canada and BC (the “Consent Order”), to reflect recent agreements recognizing Haida title to Haida Gwaii in the litigation seeking Haida title to Haida Gwaii (the “Haida Title Case”) ¹ .
The Court applied the test for declaratory relief, a discretionary remedy which requires that:
1. The Court has jurisdiction to hear the issue;
2. The dispute before the Court is real and not theoretical;
3. The party seeking declaratory relief has a genuine interest in its resolution; and
4. The respondent(s) has an interest in opposing the declaration sought.²
The first three criteria of the test were easily met. The Court obviously had jurisdiction to hear the matter, there was no question that the dispute over who holds Title to Haida Gwaii is real and not theoretical, and the Haida Nation clearly has an interest in resolving its Aboriginal Title. The only criteria which the Court had to pause and reflect on was the fourth point. Because Canada and BC had recognized Haida Title through negotiated agreements ³ , had either passed or were in the process of passing legislation recognizing Haida Title ⁴ , and had consented to the order, they no longer had an interest in opposing it. The Court stated, “In these circumstances, it is arguable that the declaration sought is unnecessary and of no practical utility.” ⁵
However, Justice Giaschi acknowledged that declaratory relief takes on a unique tenor in the context of Aboriginal Title and Rights, because it is the means by which a court can promote reconciliation to restore the nation-to-nation relationship. ⁶ He quoted the Supreme Court of Canada in Shot Both Sides, which said that “reconciliation can be fostered by declaratory relief,” “declaratory relief can assist in providing a clear statement on the legal rights of Indigenous parties, the duties placed on the Crown, and the Crown’s conduct in relation to those sacred promises,” and “clarity on these rights, duties, and conduct can help to uphold the honour of the Crown, guide the parties in the reconciliation process … and assist with efforts to restore the nation to nation relationship.” ⁷ Although the circumstances in Shot Both Sides were different, these statements are relevant to the Haida Title Case and the Consent Order would, “have practical utility in that they recognize and promote reconciliation and uphold the honour of the Crown.” ⁸
The Court added, “I am satisfied there is utility to the declaration sought in that it can inform the remaining issues to be decided in this litigation. Those issues include damages for alleged infringement or interference with Aboriginal title and the extent, if any, of the rights of the Haida Nation to fishing and other marine related resources.” ⁹
The Order
Justice Giaschi issued a declaration that:
The Haida Nation has Aboriginal Title, recognized and affirmed under s. 35(1) of the Constitution Act, 1982, to the terrestrial areas of Haida Gwaii including any submerged lands underlying freshwater or in the intertidal area between the high and low water marks, extending below the surface, and for greater certainty does not include the water column. This represents the common area that both Canada and BC had recognized Haida Title to in the Rising Tide Agreement and Big Tide Agreement.
This represents the common area that both Canada and BC had recognized Haida Title to in the Rising Tide Agreement and Big Tide Agreement. Another term of Justice Giaschi’s order was that the Haida Nation, Canada, and British Columbia will give effect to Haida Title in accordance with the conditions of the Rising Tide Agreement and the Big Tide Agreement. This includes agreement that the Haida Nation, BC and Canada will reconcile their respective laws, jurisdictions, and titles during a transition period. Additionally, the Court suspended its declaration of Haida Title to Gwaii Haanas National Park Reserve and Haida Heritage Site, Lands with Federal Interests (as defined in the Big Tide Agreement), and Indian reserves on Haida Gwaii for a period of two years, to give Canada time to make legislative amendments.
Impact of the Consent Order
This ends a major part of the Haida Title Case, resolving Haida Title to the terrestrial and foreshore areas of Haida Gwaii by negotiated agreements and the Consent Order. The Haida Nation has charted a unique path to reconciliation, through negotiated agreements followed by a consent order. In doing so, it has circumvented the challenges posed by Aboriginal Title litigation and modern treaties in BC, achieving recognition of Aboriginal Title throughout terrestrial Haida Gwaii without surrendering its constitutional rights. Gaagwiis, President of the Haida Nation, reflected on the significance of the consent order:
Today is a good day for the Haida Nation, British Columbia and Canada. Citizens of each government can be proud of how all parties came together to demonstrate gud ad t’alang hlG̲ang.gulx̲a tll yahda • tll yá’adee G̱ii gud ahl t’álang hlG̱ángulaang (good people working together to make things right) to advance reconciliation for all. Haawa to our ancestors and all those who came before us to help lead to achieving this long-awaited declaration of title to the land of Haida Gwaii. ¹⁰
There is a Haida saying that is “gam tlagw tlagaay Ga ga GaagiixanaGangaGan” meaning that “there was no land lying vacant.” This refers to the comprehensive and deep relationship between the Haida Nation and Haida Gwaii, grounded in our language, oral history, and laws. The Consent Order recognizes within Canadian law to what the Haida have always known – that they have inherent Title to Haida Gwaii.
The Haida Nation has amended its pleadings to remove a declaration of Aboriginal Title to the terrestrial and foreshore areas of Haida Gwaii from the relief south. However, the Haida Title Case is proceeding to trial on other issues, including Aboriginal Rights, Aboriginal Title to Haida Marine Territory, and damages arising from Crown infringements of Haida Title and Rights.
Private Property and the Consent Order
A significant portion of media and political coverage of the Consent Order has focused on the relationship between the Consent Order and fee simple property ownership. Several news stories have covered comments by John Rustad, leader of the B.C. Conservatives, who has tied the Consent Order to “instability and uncertainty” regarding the state of private property in British Columbia. ¹¹ Rustad has also said that “Indigenous rights and private property rights cannot coexist.” ¹² Rustad has argued that because the Canadian constitution protects Aboriginal rights but there is no similar constitutional provision for property rights, a future government of the Haida Nation could simply go back on its commitment to honour fee simple private property interests on Haida Gwaii. He said that “I suspect that if a future Haida Nation decide to back away from that, claiming their Indigenous rights under the constitution override private property rights, I suspect they would win that case.” ¹³
As discussed above, the Consent Order explicitly states that the Haida Nation, Canada, and British Columbia will give effect to Haida Title in accordance with the conditions of the Rising Tide Agreement and the Big Tide Agreement. Both the Rising Tide and Big Tide Agreement contain provisions that the Haida Nation consents to and will honour fee simple interests. This means that fee simple private property interests are protected by the Consent Order. The Consent Order is equally as binding on the Haida Nation as it is on British Columbia, and Canada on their future conduct. The Consent Order is an example of how fee simple private property interests can be reconciled with Haida Title by creating a just solution that simultaneously implements Haida rights while creating certainty for all residents of Haida Gwaii.
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¹ Council of the Haida Nation v. HMTK BC & AGC, Vancouver SC no. L020662
² Shot Both Sides v. Canada, 2024 SCC 12, para. 67.
³ the Gaayhllxid / Gíihlagalgang “Rising Tide” Haida Title Lands Agreement and the Chiix̲uujin / Chaaw K̲aawgaa “Big Tide (Low Water)” Haida Title Lands Agreement
⁴ Haida Nation Recognition Amendment Act, S.B.C. 2024. c. 23
⁵ The Council of the Haida Nation v. British Columbia, 2025 BCSC 1806, para. 7.
⁶ The Council of the Haida Nation v. British Columbia, 2025 BCSC 1806, para. 8.
⁷ The Council of the Haida Nation v. British Columbia, 2025 BCSC 1806, para. 9.
⁸ The Council of the Haida Nation v. British Columbia, 2025 BCSC 1806, para. 10.
⁹ The Council of the Haida Nation v. British Columbia, 2025 BCSC 1806, para. 11.
Aboriginal Title Can Exist Over Private Land, But Indigenous Nations May Face Additional Delays
Aboriginal Title Can Exist Over Private Land, But Indigenous Nations May Face Additional Delays: Comment on Wolastoqey Nations v New Brunswick and Canada, et. al., 2024 NBKB 203
The Court of King’s Bench in New Brunswick recently decided that it can declare Aboriginal title over private lands. This decision also raises concerns about an extra barrier for Indigenous Nations trying to enforce their rights in Canadian courts.
Comment on Wolastoqey Nations v New Brunswick and Canada, et. al., 2024 NBKB 203
The Court of King’s Bench in New Brunswick recently decided that it can declare Aboriginal title over private lands. This decision also raises concerns about an extra barrier for Indigenous Nations trying to enforce their rights in Canadian courts.
Background: The Wolastoqey Aboriginal Title Claim
Six Wolastoqey Nations claimed Aboriginal title to their traditional land, which covers more than half of New Brunswick, including many private lands owned by individuals and companies. Besides New Brunswick and Canada, other defendants included New Brunswick Power and seven industrial companies. The Wolastoqey Nations want the land held by these companies returned to them.
New Brunswick and some industrial companies wanted the court to remove parts of the Wolastoqey Nations’ claim. They argued that the court cannot declare Aboriginal title over private lands.
The Judge’s Decision: The First Time a Canadian Court States That Aboriginal Title Can Exist Over Privately Held Lands, but Indigenous Nations Cannot Sue Private Parties Holding That Land
Justice Gregory said the court can declare Aboriginal title over private lands. This is the first time a Canadian court has said this is possible.
Justice Gregory removed the industrial companies from the case. She said that Aboriginal title is a relationship between the Crown (Canada and New Brunswick) and the Indigenous Nation, so an Indigenous Nation cannot sue a private person or company based on Aboriginal title. However, the court can order the Crown to remove private landowners and return the land to the Wolastoqey Nations. The private landowners can ask for compensation from the Crown if this happens.
Regarding the “negotiation and reconciliation phases” in Aboriginal title cases, Justice Gregory stated that these phases happen after the Indigenous Nation proves Aboriginal title in court. During these phases, the Crown considers the interests of private landowners as part of the reconciliation process.
What This Means for Indigenous Nations
Justice Gregory’s decision is important for Indigenous Nations because it confirms that Canadian courts can recognize Aboriginal title over private lands. This means Indigenous Nations don’t have to involve private parties in their cases when they claim Aboriginal title over private lands. In the Wolastoqey Nations’ case, the industrial companies had many lawyers, making the case more expensive and time-consuming. Removing private parties makes the process cheaper and simpler.
There is some uncertainty about what the “negotiation and reconciliation phases” will look like. Justice Gregory said these phases are based on recent Supreme Court of Canada decisions, which promote reconciliation by making declarations. It is unclear why these phases would happen before the court makes a declaration. The concern is that courts might delay declaring Aboriginal title and providing relief to Indigenous Nations, requiring a negotiation period between the Crown and the Nation. This could be another obstacle for Indigenous Nations, who already face long and expensive legal battles. Indigenous Nations turn to the courts because federal and provincial governments fail to recognize their rights. If courts delay making declarations, it gives the Crown more opportunities to delay enforcing those rights. Hopefully, future court decisions will clarify these phases without creating more barriers for Indigenous Nations.