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.”
