B.C. cedes much of Nuchatlitz provincial park to Nuchatlaht First Nation

Globe and Mail

11 hours ago

The B.C. government has quietly ceded a large portion of a provincial park off the west coast of Vancouver Island, in response to a precedent-setting court ruling on an Indigenous land claim.
Public access to parts of Nuchatlitz Park is no longer assured, after the B.C. Supreme Court declared last year that the Nuchatlaht, a First Nation with 180 members, has proved Aboriginal title to 1,140 hectares of land on the north end of Nootka Island.
The remnants of the park are not marked, and the province says it is up to visitors to ensure they are not trespassing. Kayakers and recreational boaters are only just learning, through word of mouth, that the popular destination is no longer public land. Meanwhile, the First Nation is building a road through the former parkland for its members.
The lawyer for the Nuchatlaht says it is the first time parkland has been included in a title ruling from the courts.
The title lands include 320 hectares of old-growth forest in Nuchatlitz Park, which was established in 1996 with the primary goal of protecting special natural features. The land, about 110 kilometres northwest of Tofino, includes critical habitat for several at-risk species, including sea otters, the wandering salamander and the marbled murrelet (a small seabird), and features increasingly rare coastal sand ecosystems.
The Nuchatlaht argued that the park was created without their approval and brought many visitors to the area without any benefit to the Indigenous community.
A spokesperson for the First Nation says that guidance for the public has yet to be determined.
'We know the kayakers and the guys with the four-wheelers will be going there,' said Archie Little, an elder and councillor, 'and so we have to set the policies that they don't harm or damage the land.'
Mr. Little said the Nuchatlaht plan to develop their title lands. 'Hopefully we will have some logging to do but with really strict guidelines.' Much of their traditional territory on Nootka Island has already been commercially logged, making the former parkland one of the few pockets of intact forest.
Robert Devault, who has lived on a private island adjacent to Nuchatlitz for more than 50 years, is concerned about the road being built. It appears to be designed for resource development, he said. 'I'm hoping that what they're doing now won't be completely destructive, but my main disappointment is the lack of response from the government.'
While he supports the Nuchatlaht people in asserting their Aboriginal title, Mr. Devault said the province should have negotiated some protections. 'We have entrusted the government to save those parks for everybody, for the future, not only humans, but for the environment. And so it's a betrayal.'
The NDP government has committed to reconciliation with First Nations. Last year, it signed a groundbreaking agreement to recognize that the Haida Nation has Aboriginal title to all one million hectares of the Haida Gwaii archipelago. It has also agreed to temporary close the popular Joffre Lakes Park near Pemberton for parts of this summer, at the request of the Lil'wat and N'Quatqua First Nations.
Tamara Davidson, B.C.'s Minister of Environment and Parks, declined to comment on the Nuchatlaht case. A member of her staff said the matter is still before the courts. The Nuchatlaht are appealing the decision because it granted them only roughly 5 per cent of the territory they claim. The appeal, however, does not apply to the existing title lands.
The province still promotes Nuchatliz Park as a destination for wilderness camping, although the boundaries of its remaining 175 hectares of parkland are not obvious. The province has simply ceased to apply the law that governs parkland and protected areas for the portion that is now Nuchatlaht land.
Jack Woodward, the lawyer who represented the Nuchatlaht, said that the courts have set a precedent establishing that Aboriginal title can supersede park protections on Crown land.
'When you have Aboriginal title, you are entitled to the full economic benefit of the land,' he said in an interview. 'You're unencumbered by a whole bunch of things that would prevent you from using the land.'
Jacinthe Goulet, a spokesperson for Crown-Indigenous Relations and Northern Affairs Canada, said there are no Aboriginal title lands outside of British Columbia, although there is active title litigation across Canada.
Currently, there is no federal law that defines governance of Aboriginal title lands, but Ottawa asserts that federal laws and provincial laws of general application - statutes that apply to all residents without exception - continue to stand on those lands.
Mr. Woodward said the governments of Canada and B.C. have failed to provide legal guidance for Aboriginal title lands.
'We're left in a complete legislative vacuum. There are now two places in Canada where we know that there's Aboriginal title. That is the Tsilhqot'in territory, and also Nuchatlaht territory. We know that there's Aboriginal title there, but there is no legislation guiding this,' said Mr. Woodward, who also won the Tsilhqot'in case in B.C. 11 years ago.
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Thomas Isaac, an expert in Aboriginal law at the Vancouver law firm Cassels, said the province has legislative tools to protect the park, but is not using them. 'The legislative objective of protecting the environment can justifiably infringe an Aboriginal right, including title,' he said.
'The government is negligent, asleep on the job. The Nuchatlaht is not responsible for the public interest‚' he said, adding that it's up to governments to balance Indigenous interests with those of the wider public.
Several environmental organizations supported the First Nation in its court battle. 'Colonial governments and corporations have degraded the splendour of Nootka Island,' the Wilderness Committee wrote in a 2022 report about to the case.
Torrance Coste, the non-profit's national campaign director, said the Nuchatlaht have the right to manage and access their territories as they see fit.
'While First Nations rights and title are ignored and actively denied by the B.C. government, logging, mining, oil and gas and other industries blast thousands of kilometres of roads every year,' he said. 'This has been and remains our bigger concern.'