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An Aboriginal community in Canada is locked in a legal battle with the British Crown, establishing its historical title to land with evidence from perennial red cedar trees and the memoirs of famed British explorer Captain James Cook.
Standing in her red cedar bark hat and clutching a microphone in front of the British Columbia Supreme Court on a warm fall day, Melissa Jack has an important message for her Aboriginal community.
“We’ve proven who we are, where we come from, and we’re not going anywhere,” Melissa was shouting as the crowd cheered.
In September 2022, Melissa Jack and about 100 other people traveled from different parts of British Columbia to stand together outside the High Court building as hearings were drawing to a close in the high-profile land rights case the tribe is battling to win. The Natchlats belong to the First Nations group, one of the indigenous groups of Canada.
Not only is the Nachlat case important to Melissa Jacques and her community, as its outcome will have major implications for land claims by the rest of the country’s indigenous communities, and for the provincial government’s commitment to national reconciliation with them.
As one expert on these issues puts it, the decision could be “the first stone in the domino game of indigenous rights”.
In order to win the case, the “Nachlat” tribe resorted to using unique evidence, which they say is not only part of their cultural heritage, but also a living and important legacy that must be taken care of in order to restore the damaged land.
Representatives of the Nachlat people sued the provincial government in 2017 claiming rights and titles to about 200 square kilometers of land on the northern part of Nootka Island, on the western tip of Vancouver Island.
The “Nachlat” tribe says that they are the rightful owners of the land, that it has owned it for thousands of years, and it has never been abandoned.
But the British Crown, which now owns the land, denies what the “Nachlat” community says, and argues that this community did not have a continuous connection with this land.
In his defense of the right of ownership of the land, the “Nachlat” lawyer relies on the fact that the tribe was forced to leave its lands due to the establishment of the reservation system in Canada, among other reasons, as the federal government allocated an area of land for the exclusive use of the so-called “First Nations”, which is one of three Indigenous groups in Canada, to which the “Nachlat” tribe belongs.
Jordan Michael, chief of the Nachlat tribe, told the BBC: “The government of Canada has allotted us a small piece of land that has no value and has no resources. That’s why we are fighting in court now, fighting for what little we have left.” .
In order for the Nachlat tribe to win the case, they must prove that they lived on the land continuously and exclusively in 1846, when sovereignty over what is now British Columbia passed to the British Crown by a treaty signed with the United States.
The 160 members of the “Nachlat” community say they will win in the end.
“We’re small in number, but we’re strong,” says Archie Little, head of the Natchalat council.
The provincial government has not commented on the case, although it has previously said it respects the right of indigenous people to choose how to settle legal issues, including going to court.
If his people win property rights to the land, Archie Little says, “we will manage it, restore it, and protect it.”
“We need help repairing the land. We will plant the right trees, start the repair process. It’s a lot of work, but we’re ready for it. We want to prove that we can own and manage the land better.”
A verdict in the case is expected in the coming weeks.
Perennial cedar trees in the courtroom
Nootka Island has rich natural resources. It has abundant fish wealth, and its lands are covered with dense perennial forests. It is home to ancient red cedar trees, which can live for more than 1,000 years.
Red cedar trees can reach gigantic sizes in the forest, and they are distinguished by the color of their reddish-brown bark. The height of the largest tree of this kind in British Columbia is 56 meters, and the diameter of its trunk is 6 meters.
These perennial trees are among the most bizarre pieces of evidence that the Nachlat people have put forward to show that they have lived continuously on the land they claim on Nootka Island.
They asked archaeologist Jacob Earnshaw to research and present evidence of so-called “culturally modified trees”, which are traditionally used by Aboriginal people, particularly for the collection of pieces of their bark.
“Culturally modified trees are really important,” Earnshaw tells the BBC.--
“The proofs of land ownership relate to the possibility of proving that the land (by indigenous people) has been occupied continuously, sufficiently and exclusively, and (trees) are a very good way to prove that,” he added.-
Earnshaw has found that the land contains about 2,500 culturally modified trees, showing how the lobes of tree trunks coalesce at the sites of cut bark, leaving longitudinal grooves dating back many centuries.
Melissa Jack grew up on Nootka Island. As a child, she remembers running to swim in the sea, collecting oysters, and climbing trees outside her grandparents’ house.
“I remember the smell of my grandmother’s house, it was the smell of cedar,” Melissa, a mother of two and a member of the Natchalat council, told the BBC.
“Cedars are a big part of our identity. We have to preserve them,” she added.
Her aunt, Lydia, explains how they collect long strips of bark from the tree trunk on the sunless side, and make healing potions, ceremonial emblems, hats and fishing gear from it.
Archie Little says that if the people of Nachlat win a claim to claim ownership of the land, they will seek to protect it.
Only part of the land was set aside by the provincial government for forests, but First Nations communities say industrial logging has damaged the land.
The Nachlat tribe also relied on the diaries of British sailor and explorer Captain James Cook to support their cause.
In 1778, a British explorer was making his third and final voyage around the world on a mission to find the waterway from Alaska through North America to the Atlantic Ocean.
Cook sat in his ship moored in a quiet bay, writing, contemplating the dense forests and coastal mountains.
“Kings Gorge Sound,” Cook wrote, “is the name given to this bay by the Commodore, when we first came here, but was then informed that the natives had called it Nootka.”
Quotations from Cook’s writings were used in court, and in one he speaks of the Aboriginal people he met at Nootka as having “a high level understanding of everything the country produces as their exclusive property”.
And on another site he says, “They asked us to pay first for the wood and water that we carried on board the ship, and we certainly did that, and I was present when he asked for that.”
Documents provided by the provincial government at the request of the Nachlat people state that several indigenous groups, including the group that came to be known as the Nachlat people, used and occupied, at different times, parts of the land in question.
The Crown argues that the Nachlat people were a group “relatively small in relation to other indigenous groups in the region” and thus had little and limited ability to prevent others from using the region’s lands and resources.
A case that could change British Columbia
The Natchlat case will be the first test of an earlier 2014 Supreme Court ruling on indigenous land ownership in Canada.
That decision gave the Silkcio First Nations the title to more than 1,700 square kilometers of their ancestral land in British Columbia, marking the first time in Canada that Aboriginal ownership of land outside their reservation has been confirmed.
Jack Woodward, Natschlat’s attorney, who also sued the Silkcio case, says the new lawsuit is very significant.
“We expect to win, and that would be a huge step forward for the Natchalat community, and for all of the Indigenous peoples of Canada.”
Gordon Christie, assistant professor at the Peter Allard School of Law at the University of British Columbia, says that if the Nachlats win the case, many indigenous communities in British Columbia whose land claims have not been resolved will consider it.
The county government has focused on reaching a negotiated agreement to deal with unresolved issues with First Nations communities over land ownership.
Nachlat decided to stop participating in the long talks about reaching an agreement, and instead resorted to taking the case to court, and other communities could follow suit if they win the case.
Dr. Christie believes that First Nations communities “will do everything they can, push their causes forward, and change the landscape of British Columbia.”
The possibility, he says, is that “sometime in the next 20 or 30 years, all of the First Nations communities across British Columbia will have rights to large tracts of land, and that will change the economy and the way business is done here.”