The Nuchatlaht v. British Columbia

2026 BCCA 137 The Nuchatlaht v. British Columbia COURT OF APPEAL FOR BRITISH COLUMBIA Citation: The Nuchatlaht v. British Columbia, 2026 BCCA 137 Date: 20260402 Docket: CA50093 Between: The Nuchatlaht Appellant (Plaintiff) And His Majesty the King in Right of the Province of British Columbia, The Attorney General of Canada, and Western Forest Products Inc. Respondents (Defendants) And Ehattesaht First Nation, Mowachaht/Muchalaht First Nation, Tseshaht First Nation, shíshálh Nation, Cowichan Nation, and Dzawada'enuxw First Nation Interveners Before: The Honourable Justice Willcock The Honourable Justice Winteringham The Honourable Justice Gomery On appeal from: An order of the Supreme Court of British Columbia, dated April 17, 2024 (The Nuchatlaht v. British Columbia, 2023 BCSC 804 and 2024 BCSC 628, Vancouver Docket S170606). Counsel for the Appellant: J. Woodward, K.C. K.M. Gower E.B. Krindle O.L. Stewart Counsel for the Respondent, Attorney General of British Columbia: J.B. Echols Counsel for the Respondent, Attorney General of Canada: A.M.L. Harvey A.E. Hughes Counsel for the Interveners, Cowichan Nation, Cowichan Tribes, Penelakut Tribe, Halault and Stz'uminus First Nations: D.M. Rosenberg, K.C. J.A. Proudfoot Counsel for the Intervener, Dzawada'enuxw First Nation: I.A. Kennedy Counsel for the Intervener, Ehattesaht First Nation: L.C. Glowacki G. Hermansen Counsel for the Intervener, Mowachaht/Muchalaht First Nation (via videoconference): D.M. Robbins J.T. Tennent-Riddell Counsel for the Intervener, shíshálh Nation: M.L. Macaulay K. Shupe Counsel for the Intervener, Tseshaht First Nation: C.G. Devlin K. Whelan Place and Date of Hearing: Vancouver, British Columbia October 20, 21, 22 and 23, 2025 Place and Date of Judgment: Vancouver, British Columbia April 2, 2026 Written Reasons of the Court Summary: The appellant, the Nuchatlaht, brought a claim for Aboriginal title to 210 square kilometers of Nootka Island on the west coast of Vancouver Island, none of which is subject to competing claims or held by third parties. At trial, the judge made a declaration of Aboriginal title to portions of the claimed area. The appellant challenges this declaration on the basis that the judge misapplied the sufficient occupation element of the test for Aboriginal title and adopted a site‑specific approach. Held: Appeal allowed. The trial judge erred in restricting Aboriginal title to areas of site‑specific use when assessing sufficient occupation, and in drawing an arbitrary boundary for title, which did not reflect the evidentiary record before the court. The appellant has established sufficient occupation to the entire claimed area, and accordingly a declaration of Aboriginal title is made for this area as pleaded. Table of Contents Paragraph Range Introduction [1] - [6] Evidence and Critical Findings of Fact [7] - [43] The Evidentiary Record [16] - [17] Assertion of Sovereignty [18] - [18] The Nuchatlaht as a Collective [19] - [21] Ownership of Property [22] - [25] Evidence with Respect to Boundaries [26] - [30] Evidence with Respect to Inland Areas [31] - [43] Submissions Following the First Phase of Trial [44] - [47] The First Judgment: 2023 BCSC 804 [48] - [63] Local Village Sites [51] - [52] Culturally Modified Trees [53] - [55] Midden Sites [56] - [56] Prior Claims to Reserves [57] - [57] Sufficient Occupation [58] - [60] Exclusive Occupation [61] - [63] Post-Judgment Submissions [64] - [69] The Second Judgment: 2024 BCSC 628 [70] - [76] Grounds of Appeal [77] - [78] Positions of the Parties [79] - [123] Standard of Review [79] - [82] Errors Affecting the First Judgment [83] - [114] Misapplication of the "Sufficient Occupation" Requirement [85] - [96] Misapprehension of Evidence of Occupation of the Interior [97] - [108] Piecemeal Assessment of Evidence [109] - [111] Failure to Recognize the Import of the Labrador Boundary Decision [112] - [114] Errors Affecting the Second Judgment [115] - [122] Boundary Drawn Without Reference to Principles [115] - [116] Failed to Recognize Title to Lesser Portions of the Claim Area [117] - [122] Response of the Province [123] - [123] Discussion and Analysis [124] - [187] Legal Framework: Assessment of Sufficient Occupation [124] - [129] Misapprehension of Use of the Interior of Nootka Island [130] - [138] Misapprehension and Discounting of Evidence of Culturally Modified Trees [139] - [155] Application of Principles of International Law [156] - [162] Establishment of Arbitrary Boundary [163] - [186] Conclusion [187] - [187] Remedy [188] - [206] Appendix A - Appendix B - Appendix C - Appendix D - Reasons for Judgment of the Court: Introduction [1] This appeal calls upon us to consider the nature and quality of evidence that must be adduced to establish Aboriginal title to territory premised upon its occupation at the time of assertion of British Crown sovereignty. [2] The Nuchatlaht appeal a judgment dismissing their claim for Aboriginal title to approximately 201 square kilometres of Nootka Island (2023 BCSC 804) [RFJ #1]. The claim advanced at trial was to the area depicted in the map reproduced in Appendix A as Figure 1 (the "Claim Area"). [3] When that claim was dismissed, the trial judge granted leave to advance a modified claim to title to a portion of the area. After considering further submissions, he found that the Nuchatlaht had established Aboriginal title over the coastal areas of Nootka Island identified on the map reproduced in Appendix A as Figure 2 (2024 BCSC 628) [RFJ #2], referred to as areas: a) where there was "a basis for inferences"; and b) in which culturally modified trees[1] (referred to as "CMTs") had been identified (marked as "CMT Areas"). [4] That judgment is bound up in this appeal. [5] 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 well‑established legal principles, rather than by virtue of a political imperative. Aboriginal title, where proven, is a legal right recognized at common law. The source and nature of Aboriginal title claims was described by Chief Justice Lamer in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para. 114, 1997 CanLII 302, as follows: It had originally been thought that the source of aboriginal title in Canada was the Royal Proclamation, 1763: see St. Catherine's Milling. However, it is now clear that although aboriginal title was recognized by the Proclamation, it arises from the prior occupation of Canada by aboriginal peoples. That prior occupation, however, is relevant in two different ways, both of which illustrate the sui generis nature of aboriginal title. The first is the physical fact of occupation, which derives from the common law principle that occupation is proof of possession in law: see Kent McNeil, Common Law Aboriginal Title (1989), at p. 7. Thus, in Guerin, supra, Dickson J. described aboriginal title, at p. 376, as a "legal right derived from the Indians' historic occupation and possession of their tribal lands". What makes aboriginal title sui generis is that it arises from possession before the assertion of British sovereignty, whereas normal estates, like fee simple, arise afterward: see Kent McNeil, "The Meaning of Aboriginal Title", in Michael Asch, ed., Aboriginal and Treaty Rights in Canada (1997), 135, at p. 144. This idea has been further developed in Roberts v. Canada, 1989 CanLII 122 (SCC), [1989] 1 S.C.R. 322, where this Court unanimously held at p. 340 that "aboriginal title pre-dated colonization by the British and survived British claims of sovereignty" (also see Guerin, at p. 378). What this suggests is a second source for aboriginal title -- the relationship between common law and pre-existing systems of aboriginal law. [Emphasis added by Lamer C.J.] [6] Further, while Aboriginal title claims are protected by Part II of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Constitution Act], they were not created by the Constitution Act. The Constitution Act confirms rights that existed when it came into effect in 1982. As Lamer C.J. went on to note at para. 133 of Delgamuukw: Aboriginal title at common law is protected in its full form by s. 35(1). This conclusion flows from the express language of s. 35(1) itself, which states in full: "[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed". On a plain reading of the provision, s. 35(1) did not create aboriginal rights; rather, it accorded constitutional status to those rights which were "existing" in 1982. The provision, at the very least, constitutionalized those rights which aboriginal peoples possessed at common law, since those rights existed at the time s. 35(1) came into force. Since aboriginal title was a common law right whose existence was recognized well before 1982 (e.g., Calder, supra), s. 35(1) has constitutionalized it in its full form. [Emphasis added by Lamer C.J.] Evidence and Critical Findings of Fact [7] Aboriginal title claims are a sui generis [unique type of] right which arises from possession of land before the assertion of British sovereignty. They are founded upon occupation that meets tests of sufficiency, continuity (where the title claim is based on present occupation) and exclusivity: Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 at paras. 25-26, citing Delgamuukw at para. 143. [8] For the purposes of this appeal, the primary element at issue is sufficiency of occupation. (The Nuchatlaht have not asserted Aboriginal title based on continuing occupation, which was the claim advanced in Tsilhqot'in.) In Tsilhqot'in, Chief Justice McLachlin writing for the Court outlined the context‑specific inquiry for sufficiency of occupation: [38] To sufficiently occupy the land for purposes of title, the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes. This standard does not demand notorious or visible use akin to proving a claim for adverse possession, but neither can the occupation be purely subjective or internal. There must be evidence of a strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group. As just discussed, the kinds of acts necessary to indicate a permanent presence and intention to hold and use the land for the group's purposes are dependent on the manner of life of the people and the nature of the land. Cultivated fields, constructed dwelling houses, invested labour, and a consistent presence on parts of the land may be sufficient, but are not essential to establish occupation. The notion of occupation must also reflect the way of life of the Aboriginal people, including those who were nomadic or semi-nomadic. [9] Chief Justice McLachlin cited with approval R. v. Marshall, 2003 NSCA 105, where Justice Cromwell "liken[ed] the sufficiency of occupation required to establish Aboriginal title to the requirements for general occupancy at common law", applicable where possession of land is asserted to an area where no one else has an interest: Tsilhqot'in at para. 39. [10] The assessment of sufficient occupation must reflect the way of life of the Aboriginal people, including those who were nomadic or semi-nomadic. A title claim is not founded upon evidence of established village sites. Nor does the requirement of a strong presence upon the land require evidence of intensive use, only regular use of territory. In Tsilhqot'in, it was put as follows: [42] There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held. Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is "sufficient" use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law. [43] In fact, this Court in Marshall; Bernard did not reject a territorial approach, but held only (at para. 72) that there must be "proof of sufficiently regular and exclusive use" of the land in question, a requirement established in Delgamuukw. [44] The Court in Marshall; Bernard confirmed that nomadic and semi-nomadic groups could establish title to land, provided they establish sufficient physical possession, which is a question of fact. While "[n]ot every nomadic passage or use will ground title to land", the Court confirmed that Delgamuukw contemplates that "regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources" could suffice (para. 66). While the issue was framed in terms of whether the common law test for possession was met, the Court did not resile from the need to consider the perspective of the Aboriginal group in question; sufficient occupation is a "question of fact, depending on all the circumstances, in particular the nature of the land and the manner in which it is commonly used" (ibid.). [11] The Nuchatlaht say certain of the trial judge's material findings of fact are palpably erroneous. On an appeal founded in part upon a challenge to the trial judge's findings of fact or inferences, we must bear in mind the caution expressed in Chapman v. Steffan, 1992 CanLII 879 (B.C.C.A.). Justice Seaton, writing for this Court, followed the Supreme Court of Canada in emphasizing that findings of fact should not be reversed on appeal, absent a palpable and overriding error which affects the assessment of facts. If "there was evidence before [the trial judge] on which [they] could base [their] findings" it should not be disrupted without a palpable and overriding error or the application of an incorrect principle: Chapman at para. 6. [12] This caution must be exercised although applied with flexibility to account for the evidentiary challenges in Aboriginal title cases. In Delgamuukw, Lamer C.J. for the majority, wrote: [80] [W]hile accepting the general principle of non-interference, this Court has also identified specific situations in which an appeal court can interfere with a finding of fact made at trial. For example, appellate intervention is warranted "where the courts below have misapprehended or overlooked material evidence": see Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474, at p. 493. In cases involving the determination of aboriginal rights, appellate intervention is also warranted by the failure of a trial court to appreciate the evidentiary difficulties inherent in adjudicating aboriginal claims when, first, applying the rules of evidence and, second, interpreting the evidence before it. As I said in Van der Peet, at para. 68: In determining whether an aboriginal claimant has produced evidence sufficient to demonstrate that her activity is an aspect of a practice, custom or tradition integral to a distinctive aboriginal culture, a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The courts must not undervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case. [Emphasis added by Lamer C.J.] [82] [A]lthough the doctrine of aboriginal rights is a common law doctrine, aboriginal rights are truly sui generis, and demand a unique approach to the treatment of evidence which accords due weight to the perspective of aboriginal peoples. However, that accommodation must be done in a manner which does not strain "the Canadian legal and constitutional structure" (at para. 49). Both the principles laid down in Van der Peet -- first, that trial courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims, and second, that trial courts must interpret that evidence in the same spirit -- must be understood against this background. [83] A concrete application of the first principle can be found in Van der Peet itself, where I addressed the difficulties inherent in demonstrating a continuity between current aboriginal activities and the pre-contact practices, customs and traditions of aboriginal societies. As I reiterate below, the requirement for continuity is one component of the definition of aboriginal rights (although, as I explain below, in the case of title, the issue is continuity from sovereignty, not contact). However, given that many aboriginal societies did not keep written records at the time of contact or sovereignty, it would be exceedingly difficult for them to produce (at para. 62) "conclusive evidence from pre-contact times about the practices, customs and traditions of their community"... The same considerations apply when the time from which title is determined is sovereignty. [Emphasis added.] [13] Delgamuukw thus suggests we may intervene on appeal where the trial judge: a) has misapprehended or overlooked material evidence; b) has failed to appreciate the evidentiary difficulties inherent in adjudicating Aboriginal claims when applying the rules of evidence; or c) has failed to appreciate the evidentiary difficulties inherent in adjudicating Aboriginal claims when interpreting the evidence. [14] The Nuchatlaht seek to establish that at the time of the assertion of sovereignty they exercised effective control of land within the boundaries of the Claim Area, and regularly exploited the resources within that territory. They do not claim title to any land over which there were competing claims: Indian reserves, land held in freehold by persons other than the Crown, land held by Canada, or land claimed by neighbouring First Nations -- being the Ehattesaht First Nation to the north, and the Mowachaht/Muchalaht First Nation to the south. Significantly, this eliminates any claim to the area north of Esperanza Inlet, in which several traditional Nuchatlaht sites are located. [15] This litigation is not intended to exhaustively address and resolve the appellant's title claims but, rather, to establish title to land the Nuchatlaht consider to be clearly within their historic boundaries, leaving further and other claims for another day. As the trial judge noted, the litigation strategy adopted by the Nuchatlaht was intended to avoid issues that had complicated and prolonged other claims. The Evidentiary Record [16] Because the claim was advanced as a territorial claim based upon evidence of occupation at the time of assertion of sovereignty in 1846, the Nuchatlaht determined it was unnecessary to call any significant oral history evidence. The evidence consisted largely of historic documentation, including work done by early anthropologists and ethnologists, most notably Dr. Philip Drucker's The Northern and Central Nootkan Tribes (Washington: United States Printing Office, 1951) based on field observations in 1935-1936. The documentary record also included "the Chief's Book" containing notes on the composition of local groups and lineages seated at Nuchatlaht and Ehattesaht potlatches in 1944 and 1960. Dr. Dorothy Kennedy, an expert in socio‑cultural anthropology, ethnohistory, ethnography and genealogy, obtained this book from American archives in 1978. The Chief's Book was considered to reflect the views of Chief Felix Michael, born in about 1896, Chief of the Nuchatlaht in 1914. Chief Michael was a descendant of individuals in the area who identified as the Nuchatlaht prior to 1846 and was Dr. Drucker's principal Nuchatlaht informant. Although the trial judge placed some reliance on the Chief's Book, as its authorship and provenance were questioned, he concluded it could not be relied upon uncritically. [17] That record was supplemented by expert opinions on two distinct topics: a) The Ethnographic and Historical Record -- including the opinions of Dr. Kennedy; John Dewhirst, an anthropologist and archaeologist; and Dr. Joan Lovisek, an anthropologist with expertise in cultural anthropology and a specialization in ethnohistory; and b) The Use and Occupation of the Claim Area -- particularly the non-coastal or inland area, as evidenced by the existence of culturally modified trees and archaeological sites, including the opinions of Mr. Dewhirst and Dr. Lovisek, as well as Jacob Earnshaw and Morley Eldridge, archaeologists with specialized expertise regarding culturally modified trees in British Columbia. Assertion of Sovereignty [18] An issue with respect to the date of assertion of sovereignty was settled by the judge's conclusion that "from a factual and legal point of view" the British Crown effectively asserted sovereignty over Nootka Island in 1846, the date of the Oregon Treaty. The Nuchatlaht as a Collective [19] Most threshold questions in this case were either agreed to or resolved by the trial judge and are not challenged on appeal. The Nuchatlaht constitute an Aboriginal people, and a "band" within the meaning of the Indian Act, R.S.C. 1985, c. I-5. The Nuchatlaht comprise a modern-day Indigenous collective descending from and continuing a historical Indigenous group which used and exclusively occupied at least part of the Claim Area at the time at which the British Crown asserted sovereignty over Nootka Island. [20] At trial, there was considerable evidence about the relationship between the local groups constituting the Nuchatlaht and debate with respect to whether the groups formed a "confederacy". The judge concluded in RFJ #1: [362] [B]y 1846 the Nuchatlaht were organised into a confederacy, I accept Dr. Drucker's revised 1983 view that the confederacy was not a political institution, but largely ceremonial. I also accept his view that the fundamental political unit was the local group. [391] [The] local groups did identify themselves as Nuchatlaht. They did have a confederacy, even if it was ceremonial as described by Dr. Drucker. They shared a summer village, and there was some sharing of resources with permission of the hahoulthle[2] owners. [392] It seems to me that if it is wrong to over-emphasize central decision making in a larger collective, as indicated by the Court of Appeal, it must also be wrong to over-emphasize the ownership of the hahoulthle at the local level. [21] He saw no impediment to the Nuchatlaht being the proper title holders, and he concluded territory that could have been claimed by local groups which merged or became part of the Nuchatlaht after 1846, could be included in a claim brought by the Nuchatlaht. He noted in RFJ #1: [417] The evidence is that the present Nuchatlaht do not draw any distinction between band membership and Nuchatlaht community membership. There is no evidence of any self-identification with former local groups. [418] Put simply, the local groups have now been subsumed by the larger Nuchatlaht Nation which is the appropriate and proper present-day claimant. [T]o hold otherwise would be to ignore the Aboriginal perspective. Ownership of Property [22] It was the evidence that the Nuchatlaht share cultural values with the other Nuu-chah-nulth First Nations on the west coast of Vancouver Island. From their first contact with European explorers and settlers and, later, anthropologists, the Nuu-chah-nulth people (referred to in early literature as Nootkans) were observed to have a firm concept of ownership. They regarded nearly all property, including certain rights and cultural assets, as privately-owned. Dr. Drucker noted: "It is clear, in fine, that the property concept was extended to cover almost every phase of economy. From the native standpoint, it was through the chief's bounty that the people of lower rank had shelter and sustenance. To him they were indebted for all the necessities of life": Drucker at 256-257. [23] Ownership rested in inherited privileges or rights held by local chiefs. Mr. Dewhirst wrote "economic privileges included the chief's territory or hahaułi and all the resources therein. These economic privileges included an amazing range of ownership: virtually all wealth, including house sites, houses, food, hunting and fishing territories, and salvage rights". He adopted the opinion of Dr. Drucker, who wrote at 248: Not only were houses themselves owned, but the entire village sites as well were the property of the chief of the local group or tribe residing there. If others built houses at the place, it was with the owner's express permission. Similarly, the sites of the tribal and confederacy villages were private property, as were the fishing places in the rivers and the sea, and hunting and gathering locales. In fact all the territory, except for remote inland areas, was regarded as the property of certain chiefs. [Emphasis added.] [24] The territorial boundaries of a Chief's hahaułi on both sea and land, and the Chief's ownership of all resources within these bounds, were mutually understood and widely acknowledged amongst the Nuu-chah-nulth people. Boundaries were marked by natural landmarks, such as points of land, waterfalls, streams, islands, islets, the kelp line, reefs, rocks, bays, beaches, and other distinctive landforms. [25] Although the hahaułi was owned exclusively by the local Chief, the Chief's territory was open to use by anyone from the confederacy. However, such use was on the understanding it was by virtue of the Chief's bounty and depended on public acknowledgment of the Chief's ownership. Harvesting of resources within the boundaries of a hahaułi was restricted to the local Chief's group, and express or implicit permission as recognition of ownership was expected. Local group villages were owned by the Head Chief of the local group, while tribal winter villages and confederacy summer villages were owned by the highest‑ranking Chiefs of the tribe or confederacy, respectively. Evidence with Respect to Boundaries [26] The first proposition upon which the Nuchatlaht's claim is founded is that the boundaries of the territory occupied by the Nuchatlaht were well established and recognized at the time of the assertion of sovereignty. The evidence in support of that proposition was found principally in the field work of Dr. Drucker, conducted in 1935-6 and recorded in 1951. Because Dr. Drucker intended to rely on first-hand observations, he settled on the period from 1870 to about 1900 as his "ethnographic horizon". [27] Dr. Drucker recorded oral histories, including accounts of disputes over property salvaged at the marine border between local groups. Mr. Dewhirst summarized Dr. Drucker's account of boundaries of the Nuchatlaht territory (Drucker at 226-228) as follows: In my opinion, the Nuchatlaht in 1846 were more or less where Drucker has described the territory of the Nuchatlaht confederacy [referring to Drucker Map 3, reproduced below]. Broadly speaking, it includes the north shore and north half of Nootka Island and offshore islands from the height of land northward to the mid channel of Esperanza Inlet and Hecate Strait. Nuchatlaht territory included all of Nuchatlitz Inlet. Drucker puts the approximate southern boundary on the outer coast of Nootka Island near Ferrer Point, whereas the late Nuchatlaht Chief Felix Michael placed the boundary at "To-ka-tis", the waterfall at the mouth of Calvin Creek. Drucker has reconstructed the Nuchatlaht confederacy and its territory from reliable informants, indigenous geography and ethnohistorical accounts. I am of the opinion that his reconstruction is sound [28] Dr. Drucker described the Nuchatlaht settlements of which he was aware, as follows, referencing the numbered sites on Map 3 above (Drucker at 227-228): The present village of nũtcätł is of little antiquity, having been founded only two or three generations ago. The old winter village was at apȧqtū, where the local groups residing on Centre Island and Nuchatletz Inlet assembled. The groups at the heads of Port Eliza and Espinosa Arm formerly wintered in their respective places, joining the others at the summer village of Lūpȧtcsis (30) for sea hunting and fishing. The following is a list of villages of the Nuchatlet local groups (a few may be supplementary sites, not homes of local groups): aqī (24), tca'ła (25) ō'astsa (22), tcisy'qwis (23) yūtckhtōk (26) (the people were called La'īsȧth, from the name of the long beach there La'īs), cō'ōma (27),and ōLȧktcī (29). [29] Mr. Dewhirst wrote Dr. Drucker's "inland boundaries are more generally or vaguely defined and roughly follow watersheds, whereas coastal boundaries are located more exactly by means of natural landmarks". Mr. Dewhirst defined the southern boundary for the Nuchatlaht as the northern boundary of the Mowachaht as drawn on Dr. Drucker's Map 4 reproduced below (Drucker at 229): [30] The territory of the local Mowachaht Chiefs was set out on Dr. Drucker's Figure 17 which is reproduced in Appendix B to this judgment. Evidence with Respect to Inland Areas [31] Dr. Drucker's view that the Nuu-chah-nulth had a "pilot's knowledge" of the coastal area and were unfamiliar with the interior played a significant role in the trial judge's analysis. Dr. Drucker wrote of the Nuu-chah-nulth "[t]o most of them, mountains were objects to be lined up in ranges to locate offshore points, rather than localities to be traversed and known intimately": Drucker at 151. [32] While the evidence was the Nuu-chah-nulth were primarily a marine-oriented culture, they could not have sustained that life without the use of forest resources. Those resources were used to make, among other items: canoes; paddles; whaling harpoons; clothing; hats; rope; fishhooks; housing; storage boxes; masks; rattles and drums. Western red cedar was the primary species utilized by the Nuu-chah-nulth, but notably, yellow cedar was preferred for clothing and canoe paddles and is found at higher elevations: Earnshaw Report, Lovisek Report. Mr. Dewhirst wrote that harvesting of cedar for these diverse purposes would have involved repeated visits throughout the year. Mr. Earnshaw explained that, during these visits, the trees would be modified by activities such as stripping bark, felling trees, removing planks of wood, and cutting holes in trees to determine the wood's quality. [33] Dr. Drucker wrote (at 93): Products of red cedar bark and yellow cedar bark were used in almost all aspects of Nootkan life. One could almost describe the culture in terms of them. From the time the newborn infant's body was dried with wisps of shredded cedar bark, and he was laid in a cradle padded with the same material and his head was flattened by a roll of it, he used articles of these materials every day of his life, until he was finally rolled up in an old cedar-bark mat for burial. Yellow cedar bark was obtained from trees growing back in the woods, and up on the sides of the mountains. While gathering this material was ordinarily thought of as women's work, men often, if not usually, accompanied their wives, for the bark was heavy and had to be carried some distance. [34] The appellant adduced evidence of archaeological sites and the presence of these culturally modified trees in inland areas on Nootka Island. While the age of a tree modification can be determined through dendrochronology (counting tree rings), it is not possible, by such analysis, to identify which group altered a tree. The Nuchatlaht contended because they occupied the coastal region of the Claim Area, they must have made all the tree modifications identified by the experts inland of the coastal settlements. [35] The Nuchatlaht recognized the archaeological record in the Claim Area is not complete, and much has likely been destroyed by logging. The extent of logging is illustrated on a map appended to Mr. Earnshaw's Report, shown in Appendix C. The Claim Area has not been fully surveyed. Not all culturally modified tree sites have been located or recorded, and only a portion of those have been dated. The quality and sufficiency of the evidence with respect to culturally modified trees was therefore disputed at trial. [36] Mr. Earnshaw testified there are 93 culturally modified tree sites within the Claim Area, containing at least 8,386 individual culturally modified trees. The two sites with the largest number of such trees recorded are identified by a "Borden number" (a numbering system used to track archaeological sites) as DlSr-99, with 2,744 recorded culturally modified trees, and DkSr-53, with 2,538 recorded culturally modified trees. These are the second and third largest known sites (in terms of the number of modified trees) within all of the Nuu-chah-nulth territories. The judge summarized Mr. Earnshaw's testimony as follows (RFJ #1 at paras. 317-318): a) dated culturally modified tree features within the Claim Area show cedar harvesting from 1541 to 1969; b) in 15 of 21 sites with dated, culturally modified trees, there were trees modified prior to 1846 (71%); c) with the exception of DkSr-53, the culturally modified tree sites were in or near coastal areas, the average being 845 metres from the coast. The furthest site was 2.95 [kilometres] from the shoreline; and d) it is likely culturally modified trees would appear everywhere in the Claim Area and, "if deep, inland areas were to be consistently surveyed, large cedar harvesting areas would continue to be identified". [37] However, the judge thought there were frailties in Mr. Earnshaw's evidence, including his failure to refer to or account for some evidence (RFJ #1 at para. 323): a) he did not include in his analysis a coastal site DlSr-60, near Site #25, with date ranges from 1892-1916 (all post‑dating the assertion of sovereignty); b) only one of the 44 samples from DlSr-90 was found to pre‑date 1846; and c) only five of 65 samples from DkSr-53 (which the judge referred to as "the only inland site") pre‑dated 1846. [38] The judge accepted and relied upon the Province's analysis that only 11.4% of the dated samples of culturally modified trees pre‑date 1846. He placed some weight upon the fact Mr. Earnshaw did not note any culturally modified trees in his furthest inland survey, approximately 5-6 kilometres inland, and in another survey, 2 kilometres inland, Mr. Earnshaw had observed only two possible culturally modified trees. [39] The judge concluded there was "no scientific basis" for Mr. Earnshaw's opinion there are probably culturally modified tree sites in the part of the Claim Area which have not been surveyed. Further "[e]ven if it was accepted that there would be further [culturally modified trees], there is the question as to whether they fall in the relevant date range of between the 1780's [when the tacīsȧth -- the founding group of the Nuchatlaht -- moved from Tahsis to the Claim Area] and 1846": RFJ #1 at para. 332. [40] On the question of who made the culturally modified trees, Mr. Dewhirst attributed all culturally modified trees in the Claim Area to the Nuchatlaht by drawing an inference from: a) a pattern of use that would have required intimate knowledge of the local forest, such as could only have been possessed by a longstanding resident community; and b) the fact the Nuchatlaht are the only Aboriginal community known to have been resident in the Claim Area at the time some cultural modifications were made. [41] Mr. Dewhirst's opinion evidence was also considered by the judge to be affected by the presence of errors and lack of inclusion of data. [42] Mr. Eldridge posited several alternate scenarios under which people other than the Nuchatlaht may have created some of the culturally modified trees in the Claim Area, however the trial judge found most of these scenarios to be "speculative, and even a bit far-fetched": RFJ #1 at para. 341. [43] Although the judge rejected Mr. Eldridge's alternate scenarios, he did not accept the invitation to infer from the presence of culturally modified trees that the Nuchatlaht exercised a strong presence over the land. He weighed the inferences drawn by Mr. Dewhirst against Dr. Drucker's description of Nootkan culture, particularly the view the Nuu-chah-nulth did not frequent the remote inland areas on Vancouver Island's northwest coast. He rejected Mr. Dewhirst's argument that there are no remote inland areas on Nootka Island "in the sense used by Drucker": RFJ #1 at para. 346. He concluded: "I do not accept Mr. Dewhirst's evidence that Dr. Drucker's comment regarding less knowledge and familiarity with the interior areas would not be applicable to Nootka Island, and the Nuchatlaht": RFJ #1 at para. 357. Submissions Following the First Phase of Trial [44] On January 26, 2023, at the conclusion of the first phase of the trial, and before judgment, the trial judge, by memorandum, advised counsel he was concerned about the evidence with respect to the coastal claim area. He asked counsel for the Nuchatlaht to "set out the evidence with respect to specific sites used for fishing, camping, access etc. by the Nuchatlaht". He wrote: To be clear, and in a more general sense, what I am looking for is the specific site/area evidence, if any, (beyond the Drucker sites) that support the plaintiff's claim to the whole coastal area. This follows from what the court said in Tsilhqot'in at para. 44: " Delgamuukw contemplates that "regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources" could suffice". [45] In response, counsel for the Nuchatlaht referred the judge to the passage in Tsilhqot'in at para. 38, to the effect that a consistent presence on all parts of the land is not necessary to establish sufficient occupation; "Rather, what is required to establish sufficient occupation is that 'the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes'". [46] Counsel for the Nuchatlaht reviewed in detail the evidence of sites identified in the Chief's Book; archeological sites noted on Site Alteration Permit Reports; culturally modified trees in Borden numbered locations; sites listed in submissions to the McKenna-McBride Commission on reserve allotments in 1914 by Harry Brown on behalf of the Nuchatlaht; submissions to the Ditchburn-Clark Inquiry into those reserve allotments by Chief David John in 1922; and a model of sites where culturally modified trees could potentially be found. From those sources a composite map, incorporating the maps of multiple uses made of the Claim Area, was prepared. That map is shown in Appendix D. [47] Counsel for the Nuchatlaht submitted the map illustrates the extent of the Nuchatlaht's territory in 1846, and provides the basis for inferring on a balance of probabilities that the Nuchatlaht occupied the entire Claim Area in a manner sufficient to establish Aboriginal title. However, they reiterated the map was not meant to indicate they were advancing a site-specific claim but was to show the assertion to the Claim Area was not "purely subjective or internal" citing Tsilhqot'in at para. 38. The First Judgment: 2023 BCSC 804 [48] The trial judge found the only direct evidence of specific area usage or occupation identifiable to the Nuchatlaht were the villages the various local groups inhabited, and the confederacy village of Lūpȧtcsis (the shared summer village identified as site A1 on Figure 3 of Appendix A). He said: [436] What little evidence there was indicated that the Nuchatlaht travelled between their villages by canoe [T]he creators of CMTs [culturally modified trees] and archaeological sites could only be inferred from occupation of the adjacent areas. Further, there was no evidence before me of fishing sites separate from the settlement sites or, for that matter, how the Nuchatlaht or Nuu-chah-nulth fished. [Emphasis added.] [49] The judge recognized the Nuchatlaht were advancing a territorial claim and that such a claim is not limited to the areas of specific occupation or cultivation. However, he was of the view the territorial claim was founded solely upon Dr. Drucker's Map 3, reproduced above. The trial judge considered that map to be the only evidence regarding the boundaries of the territory occupied by the Nuchatlaht at or about the time sovereignty was asserted. Speaking of the map, he held: "[i]ts repetition in subsequent citations does not make for further evidence": RFJ #1 at para. 442. [50] He concluded depiction of a territorial boundary was not enough "to show sufficient occupation on its own": RFJ #1 at para. 443. He was unable to find evidence of a strong presence over the land within the boundary depicted by Dr. Drucker, which itself did not distinguish between use and occupation of the land. Local Village Sites [51] The trial judge held the occupation of the various Nuchatlaht local village settlements and camps in 1846 would be sufficient to establish a claim to title to those areas. However, most of these had been made into reserves and were excluded from the claim. He accepted the evidence of Dr. Kennedy and Dr. Lovisek with respect to the location of the settlements and camps outside reserves and identified specific sites where a claim had been made out on this basis. The identified sites were focussed on the west side of the peninsula between Esperanza and Nuchatlitz Inlets. They were: a) u'asis / Port Langford (not shown on Map 3; A2 on Figure 3 of Appendix A); b) apaqtu (apa·qtū) (Site #19 on Map 3; A3 on Figure 3 of Appendix A); c) Ei'was ath / kimahtis at Rosa Harbour (other side of the Opemit IR 4 peninsula) (not shown on Map 3; Opemit IR4 shown in Figure 3 of Appendix A); d) ō'astea (?u?a·sCa / owossitsa / fishery at Snug Cove / Owossitsa Creek / Owossitsa Lake) (Site #22 on Map 3; A5 on Figure 3 of Appendix A); e) nucaal (nutcal / nuja·l / neŭchāt'l) / lupatcsis (klŏpātchăssīs) (Site #20 on Map 3; A1 on Figure 3 of Appendix A); and f) Brodick Creek / Snug Cove (B on Figure 3 of Appendix A). [52] On the coast of Nuchatlitz Inlet, including Mary Basin and the Inner Basin, the only settlements noted by Dr. Drucker, or the experts, were Cō'ōma at the far end of the Inner Basin and yūtckhtōk at the narrows: a) šu.ma.tḥ / cō'ōma (Site #27 on Map 3; E1 on Figure 4 of Appendix A); and b) long beach site near yūtckhtōk (Site #26 on Map 3; E2 on Figure 4 of Appendix A). Culturally Modified Trees [53] Turning to the evidence of sufficient occupation of sites in the interior of Nootka Island, and referring to distinct sites by their Borden numbers, the trial judge noted that the evidence was limited (RFJ #1 at paras. 463-464): a) There was only one identified location of culturally modified trees that could be classified as interior, by his definition, -- DkSr-53. Only six of the 71 culturally modified trees in this area pre‑date 1846. b) Another site, DlSr-99 (identified by #6 in the Nuchatlaht's supplemental submission map shown in Appendix D), had 54 dated samples. One was dated as 1703, which pre‑dates when the tacīsȧth moved to the Claim Area. The balance post‑dated 1846. [54] He noted several other culturally modified tree areas (identified as #1-4 in the Nuchatlaht's supplemental submission map shown in Appendix D) had evidence of pre-1846 cedar harvesting and use (RFJ #1 at para. 465): a) Site 1, near Aqī (Site #24 on Map 3); b) Site 2, including two areas close to the Sophe Reserve and a third near Belmont Point; c) Site 3, near the Owossitsa Reserve; and d) Site 4, comprising two locations to the east and west of tca'ła (Site #25 on Map 3). [55] The trial judge rejected the evidence of Mr. Earnshaw with respect to other additional sites identified in surveys he conducted for this litigation because "he did not have any permits to allow sampling" and, on his own acknowledgement, "he was just walking lightly on the land and viewing what was visible": RFJ #1 at para. 328. Further, there was no reliable dating of the culturally modified trees in these areas. Midden Sites [56] The judge found there was little other archaeological evidence from midden sites of assistance to the Nuchatlaht. The identification of 500 to 2000-year-old midden sites did not assist in establishing Nuchatlaht occupation, without other evidence, because the sites pre-dated the move of the Nuchatlaht forebears to the Claim Area. Nor were burial sites dated or directly attributable to any group or Nation. It could be inferred burial sites near the villages of Lūpȧtcsis or nūtcȧL were Nuchatlaht sites, but that did not advance the territorial claim beyond the general area of those sites. Prior Claims to Reserves [57] Certain claims made on behalf of the Nuchatlaht to the McKenna-McBride Commission (established in 1913-1914 to address dissatisfaction with reserve creation) and the Ditchburn-Clark Commission in 1922 (established to review the McKenna-McBride findings), in support of claims to reserves, were relied upon by the trial judge to identify other sufficiently occupied sites. Sufficient Occupation [58] In summary, in addition to the specific village sites enumerated above, the trial judge accepted evidence of the Nuchatlaht's occupation or use in 1846 of (RFJ #1 at para. 478): a) "The CMT areas, which plaintiff grouped into sites it referred to as sites 1-4. These are all near the accepted Nuchatlaht settlement and reserve sites, except for [Site 2], which is located around Belmont Point on the north shore of Nuchatlitz Inlet not far from the entrance to Port Langford"; and b) Three areas identified in requests made to the McKenna-McBride Commission close to or adjacent to the Owossitsa, Shoomart and Sophe reserves. [59] The trial judge found himself unable to infer use and sufficient occupation of the whole Claim Area from the evidence. He concluded evidence of the type of use and control sufficient to establish ownership was absent for most of the Claim Area. Specifically, he held in RFJ #1 at paras. 482-483: a) With respect to the interior, there was "almost no evidence of use" by the Nuchatlaht. He relied upon Dr. Drucker's opinion that the Nuu-chah-nulth treated the interior and coastal areas differently in terms of ownership and had far less knowledge of the interior than the coastal regions. b) Regarding the coastal area, there were "too many gaps ... to conclude that the whole coastal area was sufficiently occupied or used in a manner to constitute occupation. Other than the villages and camps ". The judge held: "I have no evidence of specific coastal use". c) There was no evidence of Nuchatlaht (or Nuu-chah-nulth) fishing practices, other than the coastal round, which involved moving from one established settlement or camp to another. d) There was no evidence of the territory of any local Chief's hahaułi beyond the village sites which may be inferred as being in the relevant local Chief's hahaułi. [60] He concluded (RFJ #1): [483] While I have concluded that the Nuchatlaht is the rights holder to the territories of the former Nuchatlaht local groups, that cannot expand the title to include lands which were not sufficiently occupied to meet the current test of Aboriginal title. [484] I am also cognizant that in Tsilhqot'in the Supreme Court said at para. 38 that " the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes " This evidence is also lacking with respect to the whole Claim Area. Moreover, as I said above, in the latter part of the paragraph the court said that a strong presence over the land is required. [485] Whether this be called a territorial claim or not, I do not think that Dr. Drucker's boundary can fill the evidentiary gap. [Emphasis added.] Exclusive Occupation [61] The trial judge addressed the question of exclusivity in the light of these findings, considering only the Nuchatlaht's exclusive occupation of the limited areas he defined, encompassed in a local Chief's hahaułi, concluding: "[i]n my view the plaintiff has demonstrated an intention and capacity to control the land I found it occupied in 1846": RFJ #1 at para. 494. [62] Having concluded the Nuchatlaht had not proved the claim for title to the overall Claim Area, he expressed the view there might be areas of sufficient occupation or use near the reserves or fee simple land over which the plaintiff might be able to establish a claim to Aboriginal title. For this reason, he invited further submissions. [63] Before doing so, he noted, in a passage reflective of the constraints he understood he faced under the current test for Aboriginal title: [498] It may be that this case demonstrates the peculiar difficulties of a coastal Aboriginal group meeting the current test for Aboriginal title, given the marine orientation of the culture. For example, there will probably not be trails between one coastal location and another, given that the means of transport was primarily by canoe. This may be indicative of the need for a reconsideration of the test for Aboriginal title as it relates to coastal First Nations. That would be for a higher court to determine. Post-Judgment Submissions [64] When given the opportunity to present a modified claim, counsel for the Nuchatlaht first reframed the claim to most of the Claim Area. In oral argument, he submitted the question at trial had been "what sort of detailed level of occupation you need if you stake out a boundary what do you need to prove inside that boundary to get the whole territory". Counsel considered the trial judge to have rejected in principle the argument that the Nuchatlaht "could simply prove places within the territory and that an inference would be drawn for the whole territory". The judge responded that the claim had been dismissed "on the evidence, not in terms of principle". [65] The Nuchatlaht then submitted a detailed review of the evidence with a view toward obtaining whatever declaration of title the judge could make on his findings of fact. [66] In response, counsel for the Province contested the Nuchatlaht's attempt to expand and re-cast their argument from trial to seek a declaration of Aboriginal title. They argued this approach exceeded the scope of post-judgment submissions, citing to Moradkhan v. Mofidi, 2013 BCCA 132, which held parties are prohibited from re‑arguing or re‑casting their case in post‑judgment circumstances, and Hansra v. Hansra, 2017 BCCA 199, which added re‑opening a case is not an opportunity to re‑argue issues already decided: With over 77 pages of new argument and 59 new maps, the plaintiff has expanded and re-cast its legal argument presented at trial and has renewed its pleading for a declaration of Aboriginal title to the whole of the Claim Area. The plaintiff's argument far exceeds the generally permissible scope for post- judgment submissions. In Moradkhan v. Mofidi, [2013 BCCA 132] the Court of Appeal summarized what it described as well settled principles that apply to submissions made after a trial has concluded, and said that a party may not re-argue, re-cast or re-state their case. In Hansra v. Hansra, [2017 BCCA 199] the Court of Appeal affirmed the principles in Moradkhan and further explained that a party making submissions on a re-opening does not have an opportunity to re-argue their case on issues already decided. [67] The Province also re-iterated its position that the Nuchatlaht were required to prove the existence of "a strong presence on and over the land claimed" and disputed what it considered to be the Nuchatlaht's argument that the only issue to be determined was the boundary as between the Nuchatlaht and the Mowachaht/ Muchalaht. It argued this argument was "specifically considered and rejected [RFJ #1 at paras. 424-426; 443]". [68] The Province acknowledged "there is an evidentiary basis for the court to draw inferences of Aboriginal Title near or adjacent to reserves and accepted settlements". It submitted: Aboriginal title in this case may only be declared over a tract of land that is: a) within the Claim Area [as limited by the Nuchatlaht]; b) near or adjacent to a Nuchatlaht reserve or accepted settlement -- to the extent the accepted anthropological and archaeological evidence for the period between 1780 and 1846 and the geography and topography support reasonable inferences of sufficient use and occupation. [69] The Province submitted inferences of Aboriginal title may be possible in each of the categories of general areas listed in RFJ #1: a) areas proximate to demonstrated areas of sufficient occupation; b) culturally modified tree sites; and c) the coastline. The Province accordingly produced a map depicting the boundaries of land adjacent to established village sites, drawn at the line of elevation 100 metres above sea level: see Figure 3 and Figure 4 of Appendix A. It expressly cautioned the map was "not intended as evidence of pleading or admission and is intended only as an illustrative aid for the Court". The Second Judgment: 2024 BCSC 628 [70] The judge adopted the 100‑metre elevation line as an appropriate demarcation of the boundary between the interior and coastal areas identified in his first judgment. He rejected the Nuchatlaht's claim to title to a larger area. That claim, as modified in the post‑judgment submissions, was founded upon three arguments: 1. Given the Nuchatlaht established sufficient occupancy of the coast and excluded others from the territory depicted in Drucker Map 3, the Nuchatlaht should have title to all the Claim Area. 2. The territorial boundaries, if not drawn on the lines of Drucker Map 3, should be defined by the boundaries of watersheds of streams and creeks flowing into the area found to have been occupied by the Nuchatlaht. 3. Because the doctrine of terra nullius does not apply in Canada, and because there are no competing claims, title to the entire Claim Area should be awarded to the Nuchatlaht. [71] The trial judge first considered the Nuchatlaht's contention that they were entitled to the whole Claim Area, because Dr. Drucker's Map 3 evidenced the recognition of a boundary and there was evidence of use of the interior resources within that boundary. He considered that to be "a repeat of what they argued after the trial, which I dealt with": RFJ #2 at para. 29. The judge concluded that the boundary of the Claim Area was not established on the evidence as the post‑Drucker maps showing the boundary were not based on independent research, and the historic maps were not "accurate enough or sufficiently probative to fill the evidentiary gap related to sufficient occupation": RFJ #2 at para. 29. [72] He then turned to the Nuchatlaht argument that, from their perspective, the watersheds surrounding the recognized village sites would have been Nuchatlaht-owned. They submitted: "this is the most culturally appropriate way to define the "territories" that were occupied in 1846, given what is known about Nuu-chah-nulth patterns of land ownership". He noted a "watershed argument" had not been made at trial, where the evidence regarding use of the interior Claim Area was based almost entirely on culturally modified trees. He acknowledged the statement in Dr. Drucker's monograph (and repeated by Mr. Dewhirst) that inland boundaries were vaguely defined but tended to follow watersheds divided by heights of land. Beyond that, however, he was of the view that evidence of use of the interior land by the Nuchatlaht was lacking: RFJ #2 at paras. 22-23. [73] He also accepted the Province's submission there was no expert evidence regarding the definition of specific watersheds, and there are "watersheds within watersheds". Given his prior conclusion that the Nuchatlaht had not demonstrated sufficient occupation over the total Claim Area, and particularly the interior, to ground a claim of Aboriginal title, he concluded framing the claim as one over of a series of watersheds did not change this analysis: "[a]mongst other things, it does not delineate between use that can support a claim for aboriginal title and use that can support a claim for aboriginal rights": RFJ #2 at para. 25. [74] The Nuchatlaht's reliance upon principles described in Canada v. The Colony of Newfoundland, [1927] U.K.P.C. 25 [Labrador Boundary], in support of defining their territory by watersheds was not of assistance. The "hinterland theory" advanced in that case was considered to be inapplicable as the exercise of drawing boundaries in Aboriginal title claims is not entailed in drawing international boundaries. [75] Finally, he considered the Nuchatlaht contention that, given the view expressed in Tsilhqot'in at para. 69 that the doctrine of terra nullius never applied to Canada, there can be no land on Nootka Island not subject to Aboriginal title. That being the case, the only title question can be where to situate the boundary between the Nuchatlaht and the Mowachaht/Muchalaht. That question does not arise as the Nuchatlaht do not claim title to any land claimed by another First Nation. The trial judge considered this argument to be "overly simplistic". The fact there are no overlapping claims now does not mean the entire Claim Area was sufficiently occupied by the Nuchatlaht in 1846. He concluded: "[o]n the current state of the law I do not think it open to me to accept the Nuchatlaht's argument": RFJ #2 at para. 32. [76] After considering the Nuchatlaht's submissions, the trial judge engaged in relatively little analysis before largely accepting the boundary drawn in the Province's post-judgment submissions. He held: "[i]n my view, with some relatively minor exceptions, the Province's map delineates areas with respect to which the Nuchatlaht have met the criteria for Aboriginal title": RFJ #2 at para. 33. The areas so delineated were, in addition to the village sites on the western end of the island between Nuchatlitz and Esperanza Inlets, the land between these settlements which he inferred were "of contiguous use and occupation". He held: [34] The province drew the boundary for all areas at the 100-meter elevation contour. [W]ith some exceptions, I agree with this, because apart from the areas in Mary Basin and Inner Basin, the land increases in elevation gradually from the shore until the 100-meter mark, and then rises more steeply after that. Confining the boundary to the 100-meter contour reflects the distinction between the coastal and interior areas. It also includes most [of] the relevant CMT sites. [35] I would modify the Province's proposed boundary to include the following: (a) DkSr 42 and the part of DlSr 59 that has been left out; (b) the islands in Owossitsa Lake, which the Province appears to have excluded, although the lake in its entirety would be within the awarded territory; and (c) recognising this as somewhat arbitrary, the islands near the western coast of the bay, and in the bay, in which Opemit and Nuchatl are located that are within the lines I have drawn on the map at appendix 1. One of these islands is intersected by the line because the western part of it is off the map, but the whole island is to be included. The fee simple islands are, of course, excluded. [Emphasis added.] Grounds of Appeal [77] The Nuchatlaht submit the trial judge erred by denying the declaration of Aboriginal title to the entire Claim Area. In particular, he: a) misconstrued what is required to satisfy the "sufficient occupation" element of the test for Aboriginal title; b) erred in concluding the interior portions of the Claim Area were not occupied; c) assessed the evidence of Nuchatlaht territory in a piecemeal fashion; d) erred in concluding he could not apply relevant principles of international law concerning the identification of a territory; e) erred in rejecting the conclusion that the Nuchatlaht had created most, if not all, of the culturally modified trees in the Claim Area; and f) ignored or failed to give any weight to evidence of Nuchatlaht occupation of the Claim Area post‑1846 as a basis for inference of occupation pre‑1846. [78] In the alternative, the Nuchatlaht submit the trial judge erred in denying the Nuchatlaht a declaration of Aboriginal title to certain lesser included portions of the Claim Area. In particular, he: a) failed to declare Aboriginal title to portions of the Claim Area despite making findings sufficient to satisfy the test for title to those areas; and b) failed to conclude there was evidence of exclusive Nuchatlaht occupation of portions of the Claim Area in 1846 where there was evidence similar to that found in other areas where he did declare title. Positions of the Parties Standard of Review [79] The Nuchatlaht's appeal is founded upon the argument the trial judge erred in principle when weighing the merits of the claim by adopting an inappropriate concept of sufficient occupation. They assert the applicable standard of review of the appeal on this ground is correctness because the definition of the scope of Aboriginal and treaty rights is a constitutional question. They cite Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, as authority for the proposition that constitutional questions attract that standard. [80] They say the trial judge employed a "piecemeal assessment" of the claim and so erred in principle. Errors of that nature, a result of examining evidence in silos, are reviewable on a standard of correctness: John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John's, 2020 NLCA 27 at paras. 95-102. [81] Finally, the Nuchatlaht dispute the conclusions that the interior portions of the Claim Area were not occupied, and that it was not proven the Nuchatlaht had created most of the culturally modified trees in the Claim Area. They argue these conclusions were founded upon palpable error and had an overriding effect upon the assessment of the claim. [82] In response, the Province contends the standard of review across the grounds of appeal is palpable and overriding error, as the determination of Aboriginal title is inherently a question of mixed fact and law notwithstanding its constitutional nature, citing Housen v. Nikolaisen, 2002 SCC 33 at paras. 26-28, as the accepted description of the standards of appeal and Ontario (Attorney General) v. Restoule, 2024 SCC 27 at paras. 87, 90, 110, 118, as an example of their application. Errors Affecting the First Judgment [83] In the case at bar, with one exception, issue is not taken with the trial judge's application of the rules of evidence. Most substantive evidence was documentary. All expert testimony was admitted, subject to reservations with respect to the weight afforded to opinions. The Nuchatlaht say the Chief's Book was inappropriately discounted as some evidence of recognized boundaries and this led the judge to erroneously conclude that Dr. Drucker's map was the only evidence of the boundaries of the Nuchatlaht's recognized territory. [84] Insofar as the Nuchatlaht challenge the inferences drawn by the trial judge, the appeal turns primarily on the interpretation of the evidence, whether evidence was misapprehended or inappropriately discounted, and the test used to determine whether the evidence established occupation of the Claim Area. Misapplication of the "Sufficient Occupation" Requirement [85] The Nuchatlaht say while the trial judge referred to the Supreme Court of Canada's approach to the "territorial" claim to Aboriginal title in Tsilhqot'in, his analysis placed undue emphasis on site-specific evidence of intensive physical use. As a starting point, they submit there is no question with respect to the Nuchatlaht's exclusive occupation of the Claim Area. While the trial judge only considered exclusive occupation of the limited areas encompassed in a local Chief's hahaułi, the Nuchatlaht say his findings on this point were based on evidence of Nuchatlaht culture and history that were not site-specific and apply equally to the entire Claim Area. This evidence included the existence of defensive sites, and the quick and consistent reaction of the Nuchatlaht to the arrival of Europeans, given their strong concept of property. [86] The analysis of sufficient occupation of the area over which they exerted exclusive control, they say, must be undertaken in the manner described in R. v. Marshall; R. v. Bernard, 2005 SCC 43 at para. 70: "[t]he requirement of physical occupation must be generously interpreted taking into account both the aboriginal perspective and the perspective of the common law". In Tsilhqot'in, the Aboriginal perspective was described as follows: [35] The Aboriginal perspective focuses on laws, practices, customs and traditions of the group (Delgamuukw, at para. 148). In considering this perspective for the purpose of Aboriginal title, "one must take into account the group's size, manner of life, material resources, and technological abilities, and the character of the lands claimed": B. Slattery, "Understanding Aboriginal Rights" (1987), 66 Can. Bar Rev. 727, at p. 758, quoted with approval in Delgamuukw, at para. 149. [87] Here, as at common law, the Nuchatlaht note possession extends beyond sites that are physically occupied to surrounding lands that are used and over which effective control is exercised. The appropriate standard of occupation, from the common-law perspective, in the Nuchatlaht's submission, is a middle ground between the minimal occupation permitting a person to sue a trespasser, and the most onerous standard required to ground title by adverse possession as against a true owner. [88] The Nuchatlaht stress the importance in this case of bearing in mind the Supreme Court of Canada's cautionary words in Tsilhqot'in: [41] In summary, what is required is a culturally sensitive approach to sufficiency of occupation based on the dual perspectives of the Aboriginal group in question -- its laws, practices, size, technological ability and the character of the land claimed -- and the common law notion of possession as a basis for title. It is not possible to list every indicia of occupation that might apply in a particular case. The common law test for possession -- which requires an intention to occupy or hold land for the purposes of the occupant -- must be considered alongside the perspective of the Aboriginal group which, depending on its size and manner of living, might conceive of possession of land in a somewhat different manner than did the common law. [42] There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held. Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is "sufficient" use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law. [Emphasis added.] [89] The Nuchatlaht invite us to ask whether the evidence establishes use was made of the Claim Area in 1846 of such a character as to "evince an intention on the part of the Aboriginal group to hold or possess the [territory] in a manner comparable to what would be required to establish title at common law". They say it is not necessary for a court to find evidence of site-specific use in all or even most parts of the territory. It is sufficient that the court can infer, on a balance of probabilities, the territory, viewed as a whole, was in use by the Indigenous people and they exercised effective control over it. In their factum, the Nuchatlaht rely on the following passage of Tsilhqot'in to outline the requirement of sufficient occupation: [38] To sufficiently occupy the land for purposes of Aboriginal title, the [claimant group] must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes. This standard does not demand notorious or visible use akin to proving a claim for adverse possession, but neither can the occupation be purely subjective or internal. There must be evidence of a strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group. [T]he kinds of acts necessary to indicate a permanent presence and intention to hold and use the land for the group's purposes are dependent on the manner of life of the people and the nature of the land. Cultivated fields, constructed dwelling houses, invested labour, and a consistent presence on parts of the land may be sufficient, but are not essential to establish occupation [90] The appellant submits there was an ample evidentiary foundation for the trial judge to assess the extent of Nuchatlaht occupation without requiring site-specific evidence of intensive use. The primary function of site-specific evidence of the presence of culturally modified trees, such as the intensive use of DkSr-53, was to illustrate the widespread use of the forests in the Claim Area for intensive resource extraction. [91] As the Nuchatlaht see it, the trial judge's approach to sufficient occupation approximates the "site-specific" or "postage stamp" approach the Court rejected in Tsilhqot'in. They contend the judge: a) improperly restricted the scope of Aboriginal title to "coastal" areas near the shoreline and below the 100‑metre elevation contour; and b) improperly tied his findings of occupation to specific sites of known resource use near village sites. [92] They contend the trial judge erred in law, or made a palpable and overriding error, when he imported into the analysis of sufficient occupation the concepts of "village proximity" (which is not consistent with a territorial claim), and the distinction between "interior" and "coastal" areas (a distinction not drawn by experts). [93] The Nuchatlaht say there is a distinct geographic and political boundary to their territory. This is not a case where a nomadic society is seeking to build an Aboriginal title claim around hunting territory or a concentration of used sites. It is, rather, a claim made by a settled society intensively using land within recognized borders. While the number of distinct sites within the territory is irrelevant, there was evidence of two types of harvesting of forest resources in the interior of Nootka Island: stripping of bark for making such items as clothing, hats, and ropes (as evidenced by modified trees), and harvesting trees for canoes, totems and house posts. There was no basis, or requirement, to conclude that use was near or adjacent to village sites. [94] One of the intervenors characterizes the judge's error as a failure to consider Nootka Island to be a vacant estate. They note that in Tsilhqot'in (at para. 39), McLachlin C.J. adopted the following passages from Kent McNeil, Common Law Aboriginal Title (Oxford: Clarendon Press, 1989) at 198-200, likening the sufficiency of occupation required to establish Aboriginal title to the requirements for general occupancy at common law made by a person asserting possession of land over which no one else has a present interest, or with respect to which title is uncertain: What, then, did one have to do to acquire a title by occupancy? . . . [I]t appears . . . that . . . a casual entry, such as riding over land to hunt or hawk, or travelling across it, did not make an occupant, such acts "being only transitory and to a particular purpose, which leaves no marks of an appropriation, or of an intention to possess for the separate use of the rider". There must, therefore, have been an actual entry, and some act or acts from which an intention to occupy the land could be inferred. Significantly, the acts and intention had to relate only to the occupation -- it was quite unnecessary for a potential occupant to claim, or even wish to acquire, the vacant estate, for the law cast it upon him by virtue of his occupation alone. . .. Further guidance on what constitutes occupation can be gained from cases involving land to which title is uncertain. Generally, any acts on or in relation to land that indicate an intention to hold or use it for one's own purposes are evidence of occupation. Apart from the obvious, such as enclosing, cultivating, mining, building upon, maintaining, and warning trespassers off land, any number of other acts, including cutting trees or grass, fishing in tracts of water, and even perambulation, may be relied upon. The weight given to such acts depends partly on the nature of the land, and the purposes for which it can reasonably be used. [Emphasis added by McLachlin C.J.] [95] The Nuchatlaht note in Tsilhqot'in the Court accepted "[t]he notion of occupation must reflect the way of life of the Aboriginal people, including those who were nomadic or semi-nomadic": at para. 38. There, the Court held the claimants had made out a territorial title claim to 1,900 square kilometres by looking at the evidence of occupation of 25-30 distinct sites at the edges of the vacant land. Here the Nuchatlaht, similarly, made out use of the territory within defined limits and the judge erred in requiring occupancy of every square kilometre. [96] The Nuchatlaht suggest the trial judge's commentary at the conclusion of his analysis (RFJ #1 at para. 498), that there might be a need to reconsider the test for Aboriginal title as it relates to coastal First Nations, speaks to an erroneous conception of the test. The evidence here is there was intensive use of the forest, and no distinction made between coastal and inland areas. The Nuchatlaht faced no legal impediment to proving their claim that could not be overcome using the Tsilhqot'in analysis. Misapprehension of Evidence of Occupation of the Interior [97] The Nuchatlaht say the trial judge committed an extricable error of law in concluding the interior portions of the Claim Area were not occupied. The judgment, they submit, is based upon an improper inference: that the entire interior of the Claim Area above 100-metres was a "remote inland area". This inference was not open to the trial judge, given the evidence that the Nuchatlaht used and occupied the interior of the Claim Area, and similar areas were owned by the Mowachaht/ Muchalaht to the south. In the appellant's submission, this was an extricable error of law standing alone, but more certainly an error of law because of its precedential impact on the Aboriginal title claims of other Nuu-chah-nulth people. [98] The Nuchatlaht say their territorial claim is supported by Dr. Drucker's observation that all the territory including hunting and gathering locales was regarded as the property of local Chiefs. They say the judge was in error in regarding the exception of "remote inland areas" as applicable to any part of Nootka Island. The Nuchatlaht say the judge drew an artificial distinction between "coastal" and "inland" areas not based on the evidence. The focus ought not to have been on whether parts of the Claim Area were "coastal" or "inland" but, rather whether they were "remote inland" as that term was used by Dr. Drucker. [99] The Nuchatlaht say Dr. Drucker's observation must be understood in context. It appears in a description of the Nuu-chah-nulth's attitude toward ownership of property generally, and as an exception to the rule that all territory (including hunting and gathering locales) was regarded as the property of local Chiefs. He was not attempting to define the limits of the Nuchatlaht's territory on Nootka Island, but was speaking of the attitude of people who occupied the entire west coast of Vancouver Island and whose traditional territory extended over vast areas into the mountainous interior of the island. He specifically referred to the fact the Nuu-chah-nulth did not traverse "mountainous regions". [100] There is no basis for concluding he was referring to the Nuchatlaht's attitude toward Nootka Island; as doing so disregards the geography. The Claim Area is a small and relatively accessible 201 square kilometres of Nootka Island, an island nearly bisected by the Nuchatlitz Inlet. The width of the Claim Area to the north and south of the inlet is no more than 7 kilometres. In the middle of the peninsula that forms most of the Claim Area is DkSr-53, a large, exploited forest area. The highest elevation on Nootka Island is Mount Rosa at 750 metres. None of this island is remote from the established settlements. The island is off the west coast of Vancouver Island. It cannot be one of the "inland" Nuu-chah-nulth territories. To conclude Dr. Drucker did or would have considered this to be a "remote inland area", the Nuchatlaht contend, is unreasonable. [101] There is evidence Dr. Drucker did not regard the interior of Nootka Island to be so remote as to be excluded from the territory owned by the local Chiefs. Dr. Drucker noted the first-ranked Mowachaht Chief owned a territory running "inland to the watershed of Nuchatlitz Inlet": Drucker at 248. This watershed line is located just south of the southern boundary of the Claim Area and is as far "inland" on Nootka island as anything within the Claim Area. The fact he considered the neighbouring Nuu-chah-nulth group to own territory extending up to this line demonstrates Dr. Drucker did not consider the interior of Nootka Island to be "remote" in the sense in which he used that term. The Nuchatlaht say the judge ignored this, despite it being the only specific evidence of Dr. Drucker's opinion on whether the interior of Nootka Island was so "remote" as to be unowned. [102] The Nuchatlaht say if Dr. Drucker considered the interior of Nootka Island to have been an area that was not "traversed" by the local Indigenous population (and there is no basis to think that he did) he was mistaken. He was unaware of the voluminous record (in the form of culturally modified trees) in the interior of the island evincing relatively intensive use of the forest up to and including the years in which he was doing his field work. [103] The trial judge (RFJ #1 at paras. 346-347) rejected Mr. Dewhirst's evidence that there are no remote inland areas on Nootka Island "in the sense used by Drucker" because the inland areas are easily accessed by foot via creek beds and stream valleys as "another example of Mr. Dewhirst reaching a conclusion without a proper basis". The appellant says it was an error to do so, given the evidence that inland areas were in fact accessed regularly by their forebears. As Mr. Earnshaw testified, there would have likely been a series of trails to provide access to interior portions of the territory. [104] Further, the trial judge is said to have erred in fact when he stated DkSr-53 was the only "interior" culturally modified tree site in evidence. There was evidence of the existence of several such sites located near the top of the Sophia Range, including DlSr-85, DlSr-55, DlSr-56, DkSr-39, and DkSr-40. While the modified trees in these sites were largely undated, (only one of the 524 recorded trees at DlSr-85 was dated to "before 1863"), the Nuchatlaht contend these sites were nevertheless relevant to drawing inferences concerning the use of the interior of the Claim Area for forest-related uses, and the trial judge was incorrect to say there was only one "interior" site. Additionally, for sites like DkSr-53 there would have been repeated visits to that site illustrating it was not remote or inaccessible. [105] The Nuchatlaht say the judge failed to weigh, or discounted, other contextual evidence supporting the inference they used the interior portions of the territory. As discussed above, there was evidence of historic use of yellow cedar, which grows primarily in inland high slopes; harvesting of trees large enough for use as canoes, which must have been sought out throughout the Claim Area. [106] The Nuchatlaht say the trial judge not only mistakenly applied Dr. Drucker's observation with respect to "remote interior" areas to Nootka Island; but point to two specific ways in which the evidence of occupation was misapprehended. The Nuchatlaht say the evidence of culturally modified trees was erroneously assessed, and the evidence of modifications after 1846 was wrongly discounted. [107] The Nuchatlaht say it is not "question-begging", as the trial judge suggested, to say the Nuchatlaht modified the trees identified in the Claim Area that were modified after 1780. The Nuchatlaht agree with the judge's conclusion it is "speculative" and "far-fetched" to suggest members of other groups may have done so. The trial judge's failure to infer the Nuchatlaht were the makers of the culturally modified trees throughout the Claim Area is said to be a palpable error, one that may not be overriding by itself, but which becomes overriding when viewed together with the other impugned findings. [108] The Nuchatlaht submit the trial judge's failure to give any or sufficient weight to evidence post‑dating 1846, and the failure to consider that to be material evidence, is an extricable error of law. At RFJ #1 at para. 332 (cited above), the judge suggested trees modified outside "the relevant date range of between the 1780's (when the Nuchatlaht moved to the area) and 1846" would have very limited evidentiary value. They submit evidence post‑dating the assertion of sovereignty should be considered because it tends to support an inference concerning the state of affairs at or before that date. While the presence of trees modified before 1846 is obviously of probative value, evidence of modifications after that date, especially close to 1846, should have been used as evidence of how the land was used at and prior to 1846. Only a fraction of identified modified trees has been dated, and there has been no comprehensive archaeological survey of the Claim Area. For that reason, all the available evidence should be weighed to assess the longstanding patterns of use. Even if the available data were restricted to culturally modified tree sites with trees dated between 1780 and 1900, for example, (roughly 50 years after the date of sovereignty), this would still significantly expand the pool of archaeological evidence upon which to base a conclusion with respect to the sufficiency of occupation. The failure to account for this evidence also resulted in palpable error. Piecemeal Assessment of Evidence [109] The appellant says the trial judge's description of the boundary evidence as being insufficient to establish occupation "on its own" or "by itself" indicates a "piecemeal approach" to the evidence. The Nuchatlaht say the evidence of boundaries ought to have been considered in light of the evidence of the perspective of the Nuchatlaht people, in particular their laws and practices, and should have been weighed together with evidence of resource harvesting showing an intention to possess the land in a manner comparable to what would be required to establish title at common law. That evidence showed "effective control" of the land in both coastal and interior portions of the territory and was not "purely subjective or internal". [110] Particular aspects of the judge's analysis reflect his piecemeal approach. There is no careful consideration of the occupation of DkSr-53, DkSr-54, or DlSr-85. He looked at each area, including the areas containing large numbers of modified trees, in isolation. He did not draw logical inferences with respect to use of the territory generally, for example, that trails must have been necessary and that large trees would have to be identified, conserved, and when harvested, transported to the coast. [111] The Nuchatlaht acknowledge the judge might have been misled by evidence of the occupation of multiple physical sites, but that evidence was only intended to buttress the territorial claim made out by establishing boundaries and exclusive possession. Failure to Recognize the Import of the Labrador Boundary Decision [112] The Nuchatlaht rely upon the Labrador Boundary decision as a description of the evidence sufficient to establish occupation of a territory. It is not necessary to demonstrate the evident impact of occupation at every point in the territory, so long as the territory, as a whole, is under the claimant's effective control. Occupation of coastal territory may effectively amount to occupation of a watershed. They say the trial judge erred in failing to give effect to this proposition. [113] The Ehattesaht, as intervenors, say for areas in which there are no overlapping claims and there is evidence of occupation bounded by prominent geographic features, the "hinterland doctrine" may be a useful tool. In this appeal, however, application of that useful geographic concept could have the effect of expanding the contested presence of neighbouring First Nations to include whole watersheds, with significant impacts on the territorial claims of each First Nation. [114] Further, and in the alternative, the Nuchatlaht say the trial judge erred in rejecting the argument that because the doctrine of terra nullius is inapplicable in Canada, evidence of the Mowachaht/Muchalaht boundary supports an inference concerning the extent of Nuchatlaht title. This proposition hinges upon acceptance of the view that the Indigenous people fully occupied Nootka Island. Errors Affecting the Second Judgment Boundary Drawn Without Reference to Principles [115] Confining the boundary to the 100‑metre contour reflects a distinction not drawn by anyone between the coastal and interior areas. In assessing their claim, the Nuchatlaht expected the judge to apply the principles described in Tsilhqot'in. They say the declaration of title pronounced was "completely arbitrary" and not founded upon principle. In particular, they note the 100‑metre boundary has no basis in the Nuchatlaht culture or perspective including the conception of property, which should be a primary consideration in establishing Aboriginal title. The Tseshaht First Nation, as intervenors, support this point, explaining the boundary will likely result in hahaułi being cut off or segmented, which does not reflect the manner of occupation of the Claim Area in 1846. [116] The Nuchatlaht say the order made does not accurately reflect the Province's position. The Province did not claim to have "delineated areas with respect to which the Nuchatlaht had met the criteria for Aboriginal title". Rather the Province produced, for illustrative purposes, a map showing the area that would be included if there was a basis for limiting the claim to land below 100 metres. There was no evidence in support of the proposition that land above 100 metres would have been considered by Dr. Drucker or the Nuchatlaht to be "remote interior" land. To the contrary, use of that arbitrary line excluded many relevant areas within which trees or bark had traditionally been harvested. Failed to Recognize Title to Lesser Portions of the Claim Area [117] The Nuchatlaht submit the trial judge found all the requisite elements necessary to establish Aboriginal title had been proven in certain areas within the Claim Area but failed to include all such areas in the declaration of title. He accepted the Province's map as a depiction of areas where Aboriginal title was established and adopted it with minor exceptions. He considered it to reflect the established use of the coastal and interior areas and to include most of the relevant culturally modified tree sites: RFJ #2 at paras. 33-34. [118] The Nuchatlaht say an Aboriginal title claim was clearly made out in respect of: a) Site 1; b) the area encompassing DkSr-53; c) the area encompassing DlSq-19, DlSq-25, and DlSq-26; and d) the area south of Sara Islet. [119] Site 1 is located near the Nuchatlaht village site of Aqī. It will be recalled that the trial judge concluded Aqī had not been shown to be an existing Nuchatlaht village site in 1846. Site 1 is a grouping of three culturally modified tree sites, DlSq-37, DlSq-38, and DlSq-39, on both sides of Saltery Creek. DlSq-37 contains 74 culturally modified trees; 32 of which are dated; 14 of those are dated from 1780-1846. DlSq-38 contains 18 culturally modified trees; two of which are dated; one dated to 1799 and the other to 1843. DlSq-39 contains 6 culturally modified trees; two of these are dated; one was dated to 1881 and the other to 1884. The Nuchatlaht say the judge appears to have accepted the evidence of Nuchatlaht occupation of Site 1 in 1846 but excluded it from the declaration of title. The only apparent reason for doing so appears to be the conclusion that Aqī was not a Nuchatlaht village site as of the date of assertion of sovereignty. However, the appellant contends, there is no "village proximity" requirement for Aboriginal title. It is only necessary to show the area was subject to the Nuchatlaht's exclusive use and occupation in 1846. A similar site, Site 2, includes DkSr-50 near Belmont Point and was included in the declaration despite the fact it was not near an accepted Nuchatlaht settlement or reserve site. The Nuchatlaht say the exclusion of Site 1 from the declaration, and the exclusion of other areas where there was evidence of use like the evidence of use at Belmont Point, reflects inconsistent reasoning. They say the judge's refusal to find title to any areas not near or adjacent to settlements (with the exception of DkSr-50 near Belmont Point) reflects an improperly site-specific, as opposed to territorial, approach to the claim. [120] As outlined above, DkSr-53 contains over 2,500 culturally modified trees, of which 65 are fully dated and five are dated to the 1780-1846 period. The appellant contends the trial judge did not adequately explain the decision to exclude this area from the title claim allowed, other than his characterization of this as an "inland site" and his observation that only five of the 65 culturally modified trees in the area pre-date 1846. The Nuchatlaht say if the trial judge's reason for rejecting DkSr-53 is only because a relatively small percentage of the modified trees in the area were dated to 1846, or earlier, this was a palpable and overriding error. Similar evidence of the Nuchatlaht's occupation and use in 1846 was found to be sufficient elsewhere in the Claim Area. For instance, DlSr-59, which is part of the DkSr-53 "Site 4", only has two of ten samples pre-dating 1846. Yet that evidence was sufficient evidence of occupation to support a title claim. The appellant says it is illogical to conclude a site was not sufficiently used before 1846 merely because it was more intensively and consistently used thereafter. If anything, the continued extensive use of the site post-1846 supports a stronger inference that it was an important site of longstanding use and occupation prior to 1846. [121] Three sites, DlSq-19, DlSq-25, and DlSq-26, located near the southern shore of Hecate Channel, contain culturally modified trees dated within the 1780-1846 period. DlSq-25 contains 31 culturally modified trees; 14 were dated; five are dated within the relevant range. DlSq-19 contains 18 culturally modified trees; five were dated; two are dated within the relevant range. DlSq-26 contains 160 culturally modified trees, 21 were dated; three are dated within the relevant range. [122] Two culturally modified trees were identified on Nootka Island south of Sara Islet and dated by Mr. Earnshaw to within the relevant period of 1780-1846. These trees were not located within any Borden site, but the Nuchatlaht say there are other Borden sites in the direct vicinity. The appellant submits if the trial judge rejected the title claim to these sites due to lack of proximity to villages, it amounts to a contradictory treatment of the evidence and a palpable and overriding error. If this was not the trial judge's reason, then he erred in giving no other reason for rejecting these sites. Response of the Province [123] The Province maintains the trial judge correctly outlined and applied the test for Aboriginal title. It says the judge appropriately gave less evidentiary weight to post-1846 modified trees. Addressing the discrepancy alleged by the Nuchatlaht in treatment of sites near Belmont Point and Sara Islet, the Province points to the fact the Belmont Point sites were near a requested reserve location. It says there was not sufficient evidence to support a title claim to the Sara Islet site (as opposed to use consistent with the existence of a right). The Province asserts the Nuchatlaht made conscious choices regarding the evidence tendered at trial, and they adduced limited evidence of occupation, particularly within the interior areas. Discussion and Analysis Legal Framework: Assessment of Sufficient Occupation [124] When considering the use necessary to establish sufficient occupation, the trial judge cited para. 149 of Delgamuukw as authority for the proposition that such physical occupation as might prove possession at law and ground a title claim may be established in a variety of ways, including "regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources". He cited the Supreme Court of Canada's direction: [149] In considering whether occupation sufficient to ground title is established, "one must take into account the group's size, manner of life, material resources, and technological abilities, and the character of the lands claimed": Brian Slattery, "Understanding Aboriginal Rights", at pp. 758. [125] Further, in RFJ #1 at para. 484, the trial judge noted he was "cognizant" of the view expressed in Tsilhqot'in at para. 38 cited above, to the effect that occupation sufficient to ground Aboriginal title extends to tracts of land regularly used for exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty. [126] However, he found evidence of the type of use and control and concept of ownership which he considered to be called for by the jurisprudence to be "absent for most of the Claim Area". He found "there is almost no evidence of use" of the interior by the Nuchatlaht. On the coast, there were "too many gaps" to conclude the whole coastal area was sufficiently occupied or used in a manner to constitute occupation and, other than the villages and camps, there was "no evidence of specific coastal use": RFJ #1 at para. 482. He concluded: [485] Whether this be called a territorial claim or not, I do not think that Dr. Drucker's boundary can fill the evidentiary gap. [127] In our view, the trial judge applied an inappropriately narrow site-specific approach when assessing the claim as presented. This error is evident in the limited significance he afforded to the evidence of recognized boundaries; the insistence that the Nuchatlaht fill "gaps" in the evidence of use of the coast; the imposition of a requirement that tree harvesting sites be adjacent to villages or reserves; and the undervaluing of the evidence presented by the Nuchatlaht with respect to their use and occupation of the interior of Nootka Island because it did not conform precisely with the evidentiary standards that would be applied in a case not founded upon establishing a state of affairs at the time of assertion of sovereignty. [128] As we have noted, the trial judge found the Nuchatlaht had established sufficient exclusive occupation of village sites and land "near or adjacent to reserves and village sites" (RFJ #1 at paras. 494, 496) upon which to base the title claim but dismissed the claim as pleaded. He was not satisfied a claim had been made out to the entire coast within the boundaries described by Dr. Drucker or to inland areas within those boundaries. The judgment turns on an analytical approach and certain findings now impugned by the appellant. [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. Misapprehension of Use of the Interior of Nootka Island [130] The Nuchatlaht say it was an extricable error of law to find the interior portions of the Claim Area were not occupied, as "occupation" is defined in the jurisprudence. That conclusion rests upon: (a) misapprehension of Dr. Drucker's observation that the Nuu-chah-nulth people did not regard "remote inland areas" as the property of their Chiefs; and (b) inadequate consideration of the evidence of harvesting of the forest resources. [131] We agree with the appellant's submission that there was no evidentiary foundation for the conclusion the entire interior of the Claim Area above 100 metres in elevation was a "remote inland area" as that term was used by Dr. Drucker. [132] The trial judge appears to have accepted as accurate Dr. Drucker's observation that the Nuu-chah-nulth people regarded all their territory as the property of their Chiefs except remote inland areas. However, he did not give effect to that view. [133] First, there was no definition provided by the trial judge of the territory to which Dr. Drucker's comments applied. The anthropological evidence was the Nuchatlaht exercised exclusive control over the coastline from a point south of Ferrer Point, around Nuchatlitz Inlet, including Mary Basin and the Inner Basin, out to Rosa Island and to the settlements on the south coast of Esperanza Inlet. The trial judge did not find any of that territory was "remote", or that there were competing claims to ownership of the territory, but appears to have dismissed the claim to title to land on the coast on the basis that there were no trails on the coast and no evidence of "a strong presence over the land" along the coast (outside of the village sites) that could be dated to 1846. [134] Second, areas where there was evidence of pre‑1846 presence were excluded from the title area on the basis they were "remote", even though they were not "distant" from the coast in relative terms. We agree with the Nuchatlaht's submission that, in the context of the land occupied by the Nuu-chah-nulth people more generally along the west coast of Vancouver Island (the context in which the phrase was used), none of the Claim Area on Nootka Island is "remote". No part of the Claim Area is distant from the coast; as the appellant highlighted, the main part of the Claim Area is only about 7 kilometres across. Also, Dr. Drucker's observation on the "remote" inland was tied to beliefs about the mountains, which were not "localities to be traversed and known intimately": Drucker at 151. Within the Claim Area, the Sophia Range, in which the highest point is Mount Rosa, is not a significant mountain range, relative to the mountain ranges throughout the Nuu-chah-nulth peoples' territory. [135] Third, the trial judge accepted the evidence of those who walked on the land, including Dr. Drucker, that parts of the interior of Nootka Island are relatively inaccessible. He found the steep terrain and "the difficult topography of the terrain, particularly around Nuchatlitz inlet" made access to the interior difficult (and presumably, therefore, remote): RFJ #1 at para. 349. But it is hard to imagine Dr. Drucker's reference to remote, unowned territory, applied to forests routinely visited and used by the Nuchatlaht. The undisputed evidence was that frequent travel into the forest above 100 metres was required for the Nuchatlaht, at and before Dr. Drucker did his fieldwork, to conduct the extensive harvesting of trees shown at sites like DkSr-53 and DlSq-19. This harvesting continued at many sites within Dr. Drucker's "ethnographic horizon" and, at the time of his research in 1935-1936, suggesting Nootka Island is not one of the unowned areas to which he was referring. The Nuchatlaht's territorial claim should not be dismissed, in the face of evidence they intensively used the resources in the interior, because some parts of the Claim Area are difficult to access. [136] Finally, as the Nuchatlaht point out, Dr. Drucker's own description of the land occupied by the Mowachaht belies any suggestion he considered the heights of Nootka Island to be an unclaimed, remote, interior area. Dr. Drucker noted the Mowachaht's first-ranked Chief had territory running "inland to the watershed of Nuchatlitz Inlet", which places the boundary as far inland as any of the areas within the Claim Area: Drucker at 248. This description is inconsistent with the trial judge's application of Dr. Drucker's observation that the Nuu-chah-nulth's concept of ownership did not extend to inland areas of Nootka Island. [137] Dr. Drucker's generalization about the Nuu-chah-nulth was clearly inapplicable to certain Aboriginal collectives. For example he wrote of the "Muchalat" tribes (Drucker at 232): The tribes who lived along the salt water claimed cultural superiority over the dwellers of the hinterland, the "wild woods people" of Gold River. The backwoodsmen, so they claimed, came so seldom to salt water that they got seasick when they ventured in a canoe on Muchalat Arm, and they believed halibut to be supernatural monsters (because of the two eyes on the same side of the head). The river dwellers commented derisively on the salt-water people's helplessness in the woods, and boasted of their own good fat venison and elk meat, which they deemed more tasty than their neighbors' winter diet [138] If Dr. Drucker was, in fact, of the view the Nuchatlaht were not intimately familiar with the inland forest of Nootka Island, he was palpably mistaken, and the trial judge should not have placed any weight upon that misconception. The weight of the evidence was that the Nuchatlaht used the inland forests regularly, not only during the "ethnographic horizon" of Dr. Drucker's work, but thereafter up to the period when he was doing his 1935-36 fieldwork. For that reason alone, in our view, the trial judge should not have discounted the large body of evidence of cultural modification of trees between 1870 and 1935. That evidence undermines the trial judge's strong reliance on Dr. Drucker's comments about "remote inland" areas. It may have been common belief when Dr. Drucker published his text, in the 1950s, that the Nuu-chah-nulth people possessed no intimate knowledge of the forest, but that was not true of the Nuchatlaht. Misapprehension and Discounting of Evidence of Culturally Modified Trees [139] The Nuchatlaht say the trial judge misapprehended the evidence when he proceeded on the basis that DkSr-53 was the only "interior" culturally modified tree site in evidence, as there was clear evidence of regular interior resource use beyond this site. At the central inland sites, trees were consistently harvested for a century prior to Dr. Drucker's generalization about the Nuu-chah-nulth's conception and use of their property. [140] The judge's conclusion that the "interior" was not occupied appears to hinge not on whether the Nuchatlaht occupied the Claim Area from 1780 onwards, but on how intensively the Nuchatlaht used the Claim Area resources from 1780-1846. The trial judge found most use of the resources was in low-lying areas, and close to village sites. In large part, the judge's finding was based on his view that looking at the number of samples with pre‑1846 evidence was more probative than looking at the percentage of sites with pre‑1846 harvesting samples. In the first judgment, the judge concluded: [324] In my view, to present a true picture of Claim Area usage prior to 1846, it would be more illuminating to use sample numbers rather than site numbers. To use site numbers in a percentage calculation where there might be only one relevant CMT conveys an over-weighted impression. [141] He accepted the Province's unchallenged calculation that 11.4% of the dated samples pre‑date 1846. It is unclear, however, what conclusion or inference was drawn from the opinion that it is more accurate, or less misleading, to say 11.4% of dated culturally modified trees pre‑date 1846 rather than saying 15 of 21 sites with dated culturally modified trees (71%) showed harvest dates prior to 1846. In our view, with respect, by either description, the evidence of frequency or location of culturally modified trees supports the conclusion there was significant use over multiple generations of the forest resources at identified sites. [142] The judge rejected Mr. Earnshaw's inferences that trees modified between 1780 and 1846 would be found throughout the interior of Nootka Island if all potential sites were thoroughly surveyed, as "speculative": RFJ #1 at para. 334. The trial judge's dismissal of Mr. Earnshaw's inference and his identification of other culturally modified trees was, however, not an answer to the argument that despite (a) only a small portion of Nootka Island being surveyed and there being no prior systematic archaeological investigations, (b) much of the Claim Area being logged, and (c) most of the archaeological surveys being done in the Claim Area were forestry-driven, the surveyed sites and dated modifications evidenced longstanding and consistent use of the forest resources. Consideration of those factors was necessary in order to appreciate the evidentiary difficulties inherent in adjudicating this Aboriginal title claim. [143] Regardless of whether the percentage of sites or number of samples was examined, the fact of even one modified tree dating to 1780-1846 in an area where many trees have been modified is still of significance for establishing title. As Mr. Dewhirst described, the formation of a culturally modified tree would require and involve repeated visits to that tree. This repetition supports the establishment of "regular use" as required for sufficient occupation in the context of Aboriginal title. [144] In addition to inadequately considering the broader evidence of interior use, the Nuchatlaht contend the judge failed to give any, or appropriate, weight to evidence of occupation of DkSr-53 in 1846. This site, as discussed previously, is one of the largest culturally modified tree sites within the Nuu-chah-nulth's territory and is one of the farthest inland sites in the Claim Area. Amongst the over 2,500 modified trees in that site, 71 trees have been dated and 6 are dated to within the relevant 1780-1846 period. At that rate, it is possible that, if all modifications were to be dated, approximately 212 of the 2,500 modified trees in DkSr-53 would be found to have been modified in the relevant period. That period accounts for only 6 of the 18 decades between 1780 and the 1960s (the latest-dated modification). The period from 1780 to 1846 is only 1/3 of the total time span, and the most remote period. There was evidence, and it stands to reason, that it is more difficult to detect old cultural modifications than recent ones. Mr. Earnshaw testified old culturally modified trees have likely died, and tree scars can be completely enclosed by healing lobes in older trees, making identification difficult. Therefore, the fact only 8.5% of the dated trees were modified in the remote 1780-1846 period is not surprising, and does not suggest the site was not regularly used at that time. [145] Alongside the trial judge's discussion of DkSr-53, he noted another site relied upon by the Nuchatlaht, DlSr-99 on lower Brodick Creek, had 54 dated samples dating from 1703 to 1949, and the only one which pre‑dated 1846 was modified in 1703, before the Nuchatlaht occupied the Claim Area. Implicitly, the judge concluded the site was not used between 1703 and 1846. Nevertheless, most of the site was included within the title claim at trial, except for the portion of DlSr-99 above 100 metres. Presumably, that was because the trial judge was not prepared to draw an inference, in the absence of 1780-1846 dated modifications, that this and other interior tree sites were used regularly at the relevant time. [146] As we have noted, the judge suggested trees modified outside the date range of between the 1780's and 1846 would have very limited evidentiary value. In our opinion, the use of the forest resources inland from the coast after 1846 ought not to have been so discounted. Evidence of use and occupation of the identified sites of tree modification between 1846 and 1935-36, when Dr. Drucker did his fieldwork, ought to have been taken into account both (a) in considering whether the site in question was probably known and used prior to 1846, and (b) when determining whether the interior of Nootka Island was considered a "remote inland area" by the Nuchatlaht in 1935. It is evidence that use of the resources was a consistent fact of Nuchatlaht life and that Dr. Drucker's observation (at 151) of the Nuu-chah-nulth that "to most of them" mountains were not "localities to be traversed and known intimately" was inapplicable to Nootka Island and the Nuchatlaht when he did his fieldwork. [147] In our respectful view, the evidence of a longstanding practice of harvesting trees and bark in locations removed from the coast is evidence that "tracts of land were regularly used for exploiting resources [and were areas] over which the group exercised effective control at the time of assertion of European sovereignty": Tsilhqot'in at para. 50. It is evidence of more than a temporary physical presence such as that required to support a claim for Aboriginal rights. [148] Applying this broader lens to the evidence provided at trial, several culturally modified tree sites become relevant for determining if sufficient occupation was established. DkSq-16 had five dated trees, one dated to 1531, three between 1870-1897 and one in 1914. That evidence should have been weighed in determining whether the site was occupied for use by the Nuchatlaht in 1846. It suggests the site was known before it was used in 1870, and is certainly evidence these woods were not avoided by the Nuchatlaht when Dr. Drucker was doing his fieldwork in the 1930s. [149] Similarly, the following evidence should have been weighed: a) DlSq-18: Evidence of one dated sample from 1900, after the assertion of sovereignty but before Dr. Drucker's fieldwork. b) DlSq-19: Evidence of 18 modified trees, three of which were dated to 1749, 1803, and 1820, suggesting longstanding knowledge and use of sites, before and after the Nuchatlaht's establishment on Nootka Island. c) DlSq-20: Evidence of two dated samples, from 1889 and 1905, being after the assertion of sovereignty but before Dr. Drucker's fieldwork. d) DlSq-25: Evidence of 14 dated samples: two before 1780, five between 1780-1846, five later in the 1800s (including 1849), and two in the early 1900s. This suggests longstanding knowledge and use of site, before and shortly after the assertion of sovereignty. e) DlSq-26: Evidence of 21 dated samples: 13 before 1780, three between 1780-1846, and five later in the 1880s, shortly after the assertion of sovereignty. f) DlSq-35: Evidence of four dated samples, from the period between 1852 and 1885, soon after the assertion of sovereignty. g) DlSq-37: Evidence of 32 dated samples: three before 1780, 14 between 1780-1846, 13 later in the 1880s, and two early in the 1900s, also suggesting longstanding knowledge and use of sites, before and shortly after the assertion of sovereignty. h) DlSq-38: Evidence of two trees, modified in 1799 and 1843. i) DlSq-39: Evidence of two trees, modified in 1881 and 1884. j) DlSq-13: Evidence of one tree, modified in 1866, 20 years after the assertion of sovereignty. k) DlSq-15: Evidence of two trees, modified in 1822 and 1890, also suggesting longstanding knowledge and use of sites, before and after the assertion of sovereignty. [150] These sites provide strong evidence of continuing use of known sites, such that it was a palpable error to regard evidence of harvesting of tree bark in, for example, the period from 1846 to 1866 as of little relevance to the claim the forests were regularly exploited at the time of assertion of European sovereignty. [151] In this case, the Nuchatlaht established they exercised exclusive control over the Claim Area from 1780 onward, and that there were thousands of culturally modified trees in the Claim Area. From these trees, the appellant established more than 10% of those modifications were carried out before sovereignty was asserted. Following the assertion of sovereignty, the Nuchatlaht provided considerable evidence of ongoing use of sites occupied prior to 1846, as highlighted above. In light of the evidentiary difficulties the Nuchatlaht faced, we are of the view they met the burden of establishing sufficient occupation of the Claim Area. Failure to afford appropriate weight to the limited pre‑1846 evidence and the significant post‑1846 evidence evinces a failure to appreciate the evidentiary difficulties inherent in adjudicating Aboriginal title claims. [152] While the Province contends the evidentiary burden in cases of Aboriginal title remains a balance of probabilities, this must be considered within the context of the unique difficulties of establishing title, as discussed in Delgamuukw. Here, the trial judge placed an inappropriate evidentiary burden on the Nuchatlaht by discounting post-1846 evidence, and by proceeding on the assumption that no trees were modified by the Nuchatlaht outside areas where such modifications had been identified and dated. This assumption arose despite the fact that modified trees had been located throughout the Claim Area, and in many sites some trees had been proven to have been modified in the most relevant period -- the 76 years before the assertion of sovereignty. [153] The judge's approach, in effect, leads to the exclusion from consideration areas like DkSr-53 and DlSq-35 which show trees were being modified in the centre of Nootka Island near 1846. The assumption that all undated modifications in the modification sites occurred before 1846 is just as speculative as the assumption they all post-dated the assertion of sovereignty. There is no reason to conclude it is probable that DlSq-35, or other similar sites, were first exploited after 1846 rather than before 1846. Harvesting near 1846 is evidence that the site was known, exploited, and effectively occupied at about the time of assertion of sovereignty. It is evidence that the Nuchatlaht were not wary of venturing into this area at the time of the assertion of sovereignty. This evidence should have been afforded some weight. [154] There was clearly evidence of use of areas removed from the coast. The Nuchatlaht point to evidence of the following sites as evidence of their presence in areas removed from the coast: a) DlSr-55,56,57 and 58, on what appears to be Duff Creek; b) DkSr-39 and 40, on what appear to be the upper reaches of Duff Creek; c) DlSr-85, above Brodick Creek; d) DkSr-54 between Brodick Creek and Apple Creek; and e) DkSr-78,79 and 80, above Apple Creek. [155] Despite the judge's exclusion of relevant evidence of occupation, it is our view the judgment cannot, and should not, be impugned on the basis that the judge took a "piecemeal" approach to the evidence. It is not an error and is not unusual to say certain evidence, here the evidence of the recognition of a boundary, standing "on its own" or "by itself" does not make out a case. There is only reviewable error where the judge does not, after doing so, assess the weight of all the evidence in support of a proposition. We are not satisfied the judge here failed to do so, although, as we have noted, he erred in applying the test for sufficient occupation by looking for site-specific intensive occupation. Application of Principles of International Law [156] The Nuchatlaht rely on the Labrador Boundary decision for applying a principle of international law used to define boundaries based on "effective occupation", a term suggestively similar to the test of substantial occupation applied in assessing a claim of Aboriginal title. This argument is supported by Mowachaht/Muchalaht, and the Dzawada'enuxw First Nation, but largely opposed by the Ehattesaht. [157] Labrador Boundary bears a superficial factual resemblance to this case, but its legal context is quite different. The Privy Council had to resolve a dispute between Canada and Newfoundland (then a separate country) as to the location of the boundary between them. The dispute required interpretation of a series of colonial instruments referring to the "coast" of Labrador. While it was clear from the instruments the coast belonged to Newfoundland, at some point inland the coast ended and the land belonged to Canada. Canada argued the coast only included land within 1 mile of the high water mark. Newfoundland argued for a coast extending throughout the watershed of the rivers falling into the sea at the shore. Neither side identified nor argued for any intermediate possibility. [158] The Privy Council favoured Newfoundland's position. Speaking on behalf of the court in lengthy, careful reasons, Viscount Cave sets out the steps taken by the British government to establish the boundary, from the Royal Proclamation of 1763 (reprinted in R.S.C. 1985, App. II, No. 1) to the British North American (Seignorial Rights) Act 1825, c. 59. He addresses textual considerations, what was known and understood when successive instruments were promulgated, what might be inferred as to the government and Parliament's intentions, the practical implications of the positions taken by the parties, and the subsequent conduct of public officials on all sides. [159] Viscount Cave's judgment makes passing reference to international law as favouring Newfoundland's position. It is this reference upon which the Nuchatlaht rely. He states, at 415: With regard to the limit in depth of the country which may be described as "coast," where that term is used in the wider sense, it is argued that the natural limit is to be found (in the absence of special circumstances) in the watershed which is the source of the rivers falling into the sea at that place; and there is much to be said in favour of that view. It is consistent with the doctrine of international law by which the occupation of a sea-coast carries with it a right to the whole territory drained by the rivers which empty their water into its line (see Hall's International Law, 7th ed. 1 pp. 107-8; Westlake's International Law, 1904, Part 1, pp. 112-3 ; and Lawrence's Principles of International Law, 7th ed., p. 153) ; and it is certainly difficult, in the absence of any specified boundary or of any special feature (such as a political frontier), which could be taken as a boundary, to suggest any point between the seashore and the watershed at which a line could be drawn. [Emphasis added.] [160] Contrary to the Nuchatlaht's argument, Labrador Boundary is of no assistance in resolving this appeal. The Court's invocation of international law is no more than a passing observation. It is one point among many and clearly not essential to the result. It is offered in a case turning on a question of the construction of legislative instruments, not the ascertainment of a right to Aboriginal title recognized at common law and now constitutionally guaranteed by s. 35 of the Constitution Act. The trial judge correctly concluded Labrador Boundary does not establish a legal principle that "the occupation of a seacoast carries with it a right to the 'whole territory drained by the rivers which empty their water into its line'" of application to this case: RFJ #2 at paras. 26-28. [161] Even in the domain of international law, the proposition that boundaries are customarily fixed by reference to watersheds is doubtful. Reference to watersheds and other geographically grounded principles in international law are described by John Currie in Public International Law, 2nd ed (Toronto: Irwin Law, 2008) at 273-274, as mere "working presumptions" that "do not operate as principles of law requiring a particular outcome". The Nuchatlaht cite Henry Wheaton, Elements of International Law, 6th ed (Boston: Little, Brown and Company, 1855) at 353. Carrying on to the next page, this text states: Efforts to define boundaries, as has been seen, usually end in serious disputes; Conceptions of natural boundaries for races or States are politically of the highest importance, but are not the concern of international law. [Emphasis added.] [162] All that can be taken from international law is that geographic features such as coastlines, mountain ranges, and watersheds may sometimes inform the settlement of a territorial boundary. It is not necessary to resort to international law to get to this point in the context of the present case. It is encompassed in the established law that evaluating sufficient occupation requires the court to consider "the nature of the land": Marshall/Bernard at para. 66; Tsilhqot'in at paras. 38, 39, 44. Further, it is settled law that Aboriginal title is sui generis. In our view, it is neither necessary nor helpful to import principles developed in a different context into the analysis of the nature and extent of the title claim. Establishment of Arbitrary Boundary [163] We agree with the appellant's submission that the arbitrary boundary drawn by the trial judge in the second judgment was not based upon the Nuchatlaht's manner of life, material resources, and technological abilities, or the character of the lands claimed. The adoption of the 100‑metre elevation line as a boundary produced an anomalous result not founded upon the evidence or the Aboriginal perspective. This disconnect is highlighted by the treatment of the evidence of the occupation of the Aqī village site and the surrounding areas within which trees had been culturally modified, which was inconsistently and unsatisfactorily addressed. [164] There was no evidence supporting the drawing of the boundary at 100 metres or any particular line of elevation. While the 100‑metre line appears, at places, to be the point at which a coastal plain rises dramatically to the Sophia Range, such as at the south shore of Owossitsa Lake where the land climbs steeply to Mount Rosa, elsewhere, where the slope is gradual, the 100‑metre line appears to have no significance, for example in the Brodick Creek and Apple Creek area. [165] The line produces anomalous results. It would have led to the inclusion of DkSr-41 and 43, just below the 100‑metre line, but the exclusion of nearby DkSr-42, which straddles the 120‑metre line, if the judge had not recognized that anomaly and made an adjustment to the boundary to include DkSr-42. DlSr-59 is an acknowledged harvesting site that straddles the 100‑metre line. Apparently recognizing the absurdity of including only that part of the site that fell below 100 metres the judge included all of DlSr-59 in the allowed claim. Doing so, however resulted in the creation of a strange "panhandle" of land excluded from the title claim, which is almost entirely surrounded by land included in the declaration of Aboriginal title. That panhandle was referred to by counsel for the Nuchatlaht as "a small pincer-shaped area" near the west end of the title area along Esperanza Inlet (see Figure 2 of Appendix A). The necessity of making these adjustments demonstrates the extent to which the line drawn with insufficient analysis at 100 metres does not reflect in any real way the regular use or geography of the land. As the Tseshaht, as intervenors, highlighted, this decision is likely to result in hahaułi being segmented or excluded entirely, which does not reflect the Aboriginal perspective. [166] There is evidence of regular use of resources, modifications by Nuchatlaht, well above 100 metres in elevation. The DkSr-57 and 58 areas are located in part above the 200 metre contour line. DlSr-55 and 56 are at higher elevations: the 300-400 metre line. DkSr-39 and DkSr-40 are at elevations up to 500 metres. DlSr-85 is above 400 metres in places. The Nuchatlaht note these are provincially recognized archeological sites, and say it was a transparent error not to account for this evidence when assessing the claim. [167] The declaration includes the land surrounding an identified culturally modified tree site near the Sophe Reserve at the narrows of Nuchatlitz Inlet, but does not follow the 100‑metre line into Guise Creek or along the shoreline from Sophe to the tree site. The manner in which that line was drawn is not addressed in the second judgment. The only references to the land at the narrows to which a claim had been made out is in the first judgment, where the judge wrote: [477] The fifth and final requested site the plaintiff relies on was [to land excluded from the Sophe reserve as a result of]: an error when the Commission decided to give us that place at the point, and at the place where Mary Basin and Inner Basin meet, as that is nearly all rocks, only about an acre could be of any use, what we wanted was land at this the mouth of the Creek that flows into Mary Basin (or Outer Basin) North of the Island at the head of Mary Basin, we want fourty [sic] acres West of that Creek as that is good land (on TL 6709). This is adjacent to the Sophe reserve. [478] In summary, the general areas which I accept as evidence of Nuchatlaht occupation or use in 1846 are: [in addition to the sites on Esperanza Inlet and the point] c) The three McKenna-McBride requests which, as I said, are close to or adjacent to the Owossitsa, Shoomart and Sophe reserves. [168] The citation in RFJ #1 at para. 477 above is from Chief John's submission to the Ditchburn-Clark Inquiry in 1922, in support of a claim to a 40‑acre addition to the Sophe Reserve. The Province's submission, in support of the map relied upon in making the award, was: Considering the steep terrain between the Sophe reserve and the river mouth, it is unlikely that the Nuchatlaht would have travelled to that area on foot and more likely that the area was accessed from the coast and by canoe. There is therefore little evidentiary support for an inference of Aboriginal title to land connecting the reserve and the request location. [169] That is a very site-specific definition of occupation, in the nature of the "postage-stamp" approach rejected in Tsilhqot'in. The judge appears to have accepted the Province's description of the claim made out in the Sophe area. The award included the sites of culturally modified trees adjacent to the land sought as reserve land, but did not include all surrounding land to an elevation of 100 metres, nor is it clear the award included the 40 acres sought in 1922, or any of the land connecting the reserve to the mouth of Guise Creek. [170] As noted above, the declaration excludes both the Aqī village site and the surrounding areas within which trees had been culturally modified. Those areas, being DlSq-37, DlSq-38, and DlSq-39, were all encompassed in what is referred to as Area 1 in expert reports (see Appendix D) and Site 1 in the reasons for judgment. [171] We have noted the judge did not consider Dr. Drucker's map, drawn on the basis of 1935-1936 field work, to be an accurate depiction of existing settlements in 1846. He was of the view that Map 3 could be given no time horizon other than that commencing in 1870. Despite that conclusion, he largely relied upon Dr. Drucker's research to determine what areas were occupied by the Nuchatlaht at the time of assertion of sovereignty. It made sense to do so as there was no basis in the evidence to conclude there had been significant migration in the 24 years between 1846 and 1870, except for a decline in population caused by the introduction of contagious diseases. In fact, the evidence of Dr. Drucker appears to have been accepted and considered by the trial judge to reflect occupation of the Claim Area in 1846, with one exception. In the first judgment the trial judge summarized the evidence with respect to the Aqī village site as follows: [155] Aqī (site #24) was identified by Dr. Drucker as a Nuchatlaht site, however, Dr. Kennedy concluded she could not be sure whether it was owned by a local group which was associated with the Nuchatlaht at 1846, or amalgamated with the Nuchatlaht after 1846, or amalgamated at all. [156] Dr. Lovisek concluded that Aqī was not in existence prior to 1846, and noted there is no record of a request to make it into a reserve. Mr. Dewhirst simply adopted Map 3 and said Aqī was a Nuchatlaht site in 1846, although 1846 was outside of Dr. Drucker's time horizon. Mr. Dewhirst also relied on the Chief's Book but its reliability for events going back to 1846 is doubtful. [172] Although, as we have noted, the judge did not conclude that discussion by expressly adopting one of the three expert opinions, he observed, when discussing the evidence of the existence of a local group identified as Aqī (or Ahkiath) later in his judgment: "I dealt with this group in conjunction with the site of Aqī, (para. 155)": RFJ #1 at para. 201. It is not clear to us that he did so in the passage to which he referred or elsewhere. [173] In RFJ #1 at para. 448, the judge noted he accepted the evidence of Dr. Kennedy and Dr. Lovisek with respect to local groups and their village sites, wherever it diverged from the evidence of Mr. Dewhirst. Implicitly, he preferred the evidence of Dr. Lovisek to that of Dr. Kennedy with respect to the site at Aqī, because, when considering which culturally modified tree areas were near or adjacent to village sites, he wrote at RFJ #1 para. 465: One of the locations is near Aqī, which as I noted [apparently referring to the passages I have cited, in which there is no apparent weighing of the opinions] has not been shown to be an existing site in 1846. [Emphasis added.] [174] In her testimony with respect to Aqī, Dr. Lovisek wrote: "Dewhirst has assumed that [A]qī and tca'ła were extant at the date of the recorded CMTs, which in my opinion has yet to be established through archeological research" [emphasis added]. This suggests she had not discounted the idea, but she did not suggest there was another Aboriginal group occupying the Saltery Creek area, adjacent to Aqī, and she does not dispute the (uncontradicted) evidence of significant cultural modification of trees in the Saltery Creek area at the relevant period prior to the assertion of sovereignty. [175] In our view, the judge failed to deal with the conflicting evidence with respect to the occupation of the village site at Aqī in 1846. Not only were the competing expert opinions not weighed, the evidence of the existence of trees near the village site that were culturally modified before the assertion of sovereignty was addressed inconsistently and unclearly. [176] Site 1, near Aqī, is a grouping of three culturally modified tree sites, DlSq-37, DlSq-38, and DlSq-39, on both sides of Saltery Creek. As outlined by the appellant, DlSq-37 contains fifteen trees dated from 1780-1846, being almost half of those currently dated. DlSq-38 contains two trees dated to 1799 and 1843. DlSq-39 contains two trees dated to 1884 and 1881. The judge accepted the evidence of the Nuchatlaht's occupation or use of Site 1 in 1846 but, without explicit discussion, excluded it from the declaration of title. In the first judgment he noted: [496] [W]hen I outlined the areas of occupation, I frequently used the language "near or adjacent to" reserves or accepted settlements. There may be areas of sufficient occupation or use that are near the reserves or fee simple land over which the plaintiff may be able to establish its claim to Aboriginal title. For example, if there are CMT sites that are adjacent to a reserve, the plaintiff may have a claim to them and the area between them and the reserve. [Emphasis added.] [177] In the second judgment, the judge does not expressly address Site 1, other than to note: [11] The sites referred to in para. 478 of my judgment [the general areas where there was accepted evidence of Nuchatlaht occupation or use in 1846] were: b) The CMT areas, which plaintiff grouped into sites it referred to as sites 1-4. These are all near the accepted Nuchatlaht settlement and reserve sites, except for the site in group 2, which is located around Belmont Point on the north shore of Nuchatlitz Inlet not far from the entrance to Port Langford. [Emphasis added.] [178] The trial judge concluded: [33] In my view, with some relatively minor exceptions, the Province's map delineates areas with respect to which the Nuchatlaht have met the criteria for Aboriginal title. They are mostly adjacent to the areas I referred to in in para. 11 above. [Emphasis added.] [179] In doing so, the judge does not expressly exclude Site 1 from the title claim, except by adopting the Province's map. [180] It was undisputed Sites 1-4 showed pre‑1846 cedar harvesting and use. The judge noted Sites 3 and 4 were near occupied villages, ō'astea and tca'ła. Part of Site 2 was close to the village of yūtckhtōk, but part was near Belmont Point and not adjacent to a former Nuchatlaht site. The judge accepted the title claim to the Belmont Point site, although it is not proximate to a village or reserve site. The Nuchatlaht say the exclusion of Site 1 from the title area, and the exclusion of other areas where there was evidence of use similar to the evidence of use at Belmont Point, was inconsistent. The Province says it was not inconsistent to do so because the Belmont Point site was proximate to a location identified in the reserve claim process. [181] In our view, it is not necessary for the appellant to establish inconsistency in the reasoning. If, as appears to be the case, the trial judge rejected the title claim to Site 1, despite the evidence of significant activity at the material time, and despite the fact Site 1 is not in what he considered the "interior", he could only have done so for one reason, as the Nuchatlaht suggest: because it was not adjacent to a village site. In our respectful opinion, that is not a valid reason to exclude territory effectively occupied by the Nuchatlaht from their claim. Nor is it a reason to exclude Site 1 from the evidence considered in support of the proposition that the Nuchatlaht occupied the entire Claim Area. [182] The Province's submission mirrored the judge's reason regarding the exclusion of Site 1. As this site was not near a requested reserve or accepted settlement, no inference could be drawn for title, and the evidence provided by DlSq-37 and DlSq-38 would provide only a thin basis on which to infer modification was completed by the Nuchatlaht: [T]hat no inference of Aboriginal title can be made for Original Site 1 as this site is not near or adjacent to a Nuchatlaht reserve or accepted settlement. It is near the historical site called Aqi. At paragraphs 155-156, 452 and 465 of the Judgment, the court discussed Aqi and held that it was not a site occupied by the Nuchatlaht in 1846. Moreover, this was not a site for which Nuchatlaht made requests to the Mckenna-McBride commission or the Ditchburn-Clark inquiry. However, if this site were to be considered relevant for purposes of a declaration of Aboriginal title, only Borden sites DlSq-37 and DlSq-38 could possibly support an inference as there are no CMTs in DlSq-39 in the date range between 1780-1846. Further, in addition to some CMTs being dated in the relevant period in DlSq-37 and DlSq-38, there are also some dated prior to 1780. These sites provide a very thin basis to infer that the CMTs were created by the Nuchatlaht, or the Nuchatlaht only. [183] The submission the judge concluded Aqī was "was not a site occupied by the Nuchatlaht in 1846" is not accurate insofar as it suggests the trial judge might have concluded it was a village site occupied by people other than the Nuchatlaht or an amalgamated group. He did not. At RFJ #1 para. 452 he held: "I do not think it has been demonstrated that the site was occupied in 1846" [emphasis added], and at para. 465 he went on to hold Aqī "has not been shown to be an existing site in 1846" [emphasis added]. Given the judge's rejection of the suggestion people other than the Nuchatlaht may have created some of the culturally modified trees in the Claim Area, Site 1 can only have been excluded because it was removed at some distance from an existing village site. In our view, it was a palpable error to do so, and we would not accede to the Province's submission that there was "a very thin basis to infer that the [culturally modified trees] were created by the Nuchatlaht, or the Nuchatlaht only". To the contrary, there is a very thin basis to assume otherwise. [184] In determining the appropriate bounds of Aboriginal title, the Nuchatlaht also note the trial judge failed to properly engage with the evidence of sufficient occupation of the area south of Nuchatlitz Inlet. At trial, the evidence showed two culturally modified trees were present near Sara Islet which could be dated to pre‑1846. Given the relatively small size of the area south of the inlet, the Nuchatlaht contend this is enough for sufficient occupation of the region. In response, the Province contend these two sites were not enough to show regular use of this shore up to the line running west-east on Drucker Map 3. [185] In the Chief's Book, Chief Michael stated his territory extended south not only to the line in Drucker Map 3, but further south to the waterfall at Calvin Creek. The trial judge did raise concerns regarding the Chief's Book, as the parties relied only on copies of the book, portions were missing, and it was created following the assertion of sovereignty. While this source has more limited use, here it can be corroborated by other evidence of culturally modified trees and it provides evidence of the Aboriginal perspective. While the Nuchatlaht have not framed their claim as broadly as Chief Michael described his territory, the description does provide an account of the Nuchatlaht's use of the south shore of Nuchatlitz Inlet. [186] As with the other sites of modification, the expert evidence supports the fact that a single site can involve multiple visits to the tree over time and does not necessarily indicate it was a single visit that would not support regular use. As several sites of cultural modification, beyond the two that have been dated, were identified by Mr. Earnshaw along the south shore, there is evidence of broader use of this area which, if dated, could reveal pre‑1846 occupation. Conclusion [187] To recapitulate, three errors may be discerned in the judge's assessment of the Aboriginal title claim brought by the Nuchatlaht. First, the judge failed to weigh and consider the available evidence of use of the interior portion of the Claim Area. By over-relying on Dr. Drucker's comments concerning "remote inland" areas, and maintaining a strict exclusion of post‑1846 evidence, the judge closed off the consideration of a number of sites of culturally modified trees evidencing regular use of the interior by the Nuchatlaht before and after 1846. Second, the judge limited his assessment to evidence of occupation which could be linked to village sites or reserves. This approach was not consistent with the approach outlined in Tsilhqot'in, and led to the exclusion of large sites such as those surrounding Aqī, which would have required regular use for their formation during the period prior to assertion of sovereignty. Finally, the judge adopted a boundary which reflected neither the evidence of culturally modified trees, nor the utilization of the Claim Area by the Nuchatlaht. In combination, these errors indicate the judge misapplied the test for sufficient occupation and made palpable and overriding errors in applying the law to the facts. Remedy [188] Having concluded that the judge misapplied the test for sufficient occupation and erred in law in giving inadequate weight to evidence of regular use of the resources in the Claim Area, we turn to whether there is any appropriate remedy, other than remitting the case to the trial court. [189] This Court has the power, authority, and jurisdiction vested in the court appealed from for all purposes of and incidental to the determination of any matter: Court of Appeal Act, S.B.C. 2021, c. 6, s. 25. As Justice Fish, writing for the majority in H.L. v. Canada (Attorney General), 2005 SCC 25, observed, at paras. 88-89, upon finding palpable and overriding error or a holding that findings of fact were unsupported by the evidence, appellate courts are endowed with the powers of the trial court in considering what the evidence proves and what inferences may be drawn. [190] The Nuchatlaht contend they have established on a balance of probabilities (a) the extent of its exclusively held territory in 1846 and (b) that the quality of the acts of occupation would demonstrate to others its intention to hold that territory for its own use -- sufficiency. The appellant says a declaration of title for the Claim Area must be issued, that the recognized boundaries of territory they exclusively possessed are certain enough for us to make an order determining its entitlement. [191] In Delgamuukw, Lamer C.J. concluded "it would be impossible for the Court to do justice to the parties by sifting through the record itself and making new factual findings": at para. 108. In the case before us, however, the evidentiary record is untainted by the errors we have identified. [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. [193] Mr. Dewhirst notes: Drucker puts the approximate southern boundary on the outer coast of Nootka Island near Ferrer Point, whereas the late Nuchatlaht Chief Felix Michael placed the boundary at "To-ka-tis," the waterfall at the mouth of Calvin Creek. [194] To the extent there was doubt with respect to the identification of Nuchatlaht territory by Dr. Drucker, it was doubt with respect to (a) the existence of a village site and (b) the location of the interior boundary of the territory, not the exercise of control over the coast. [195] As the trial judge noted, there was evidence of fortifications, "albeit not specifically identified to the Nuchatlaht" (RFJ #1 at para. 492), and the fact was that whatever defensive system was in place worked. There was no evidence of attacks against the Nuchatlaht or challenges to its claim to the territory. [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. As the judge said, citing para. 48 of Tsilhqot'in, "the fact that permission was requested and granted or refused, may show intention and capacity to control the land": RFJ #1 at para. 493. [197] As we have previously noted, the standard of proof does not demand notorious or visible use akin to proving a claim for adverse possession. This is the answer to the trial judge's concern (expressed at RFJ #1 at para. 498) that, in weighing the claims of settled coastal people, there are "peculiar difficulties meeting the current test for Aboriginal title, given the marine orientation of the culture". [198] Further, we are of the opinion that the evidence of harvesting of cedar in the interior of Nootka Island at the time of the assertion of sovereignty, seen in light of the evidence of the importance of cedar bark and logs in the Nuchatlaht's culture, constitutes evidence of a strong presence on or over the land claimed. [199] This leaves the question of the interior boundaries of the land to which Aboriginal title has been established. The question before the Court in Tsilhqot'in was framed at para. 24 as follows: "[h]ow should the courts determine whether a semi-nomadic indigenous group has title to lands?" The question was framed in this manner because the Tsilhqot'in clearly occupied territory without precise boundaries and "[e]xcept where impassable (or virtually impassable) natural boundaries existed, the limits of [their] traditional territory were ill-defined and fluid": Tsilhqot'in at para. 22. In settling the boundary of the area owned by the Nuchatlaht, it is necessary, in the words of Tsilhqot'in (at para. 35, citing Brian Slattery, "Understanding Aboriginal Rights" (1987) 66:4 Can. Bar Rev. 727 at 758), to take into account the size of the Nuchatlaht's population in 1846, the manner of life, material resources, and technological abilities, and the character of the lands claimed. [200] When describing the Mowachaht territory Dr. Drucker wrote at 248: Map 4 shows Moachat territory, without that of the Tlupana Arm groups, on whom I obtained little information. The broad area shown inside the boundary lines belonged to Moachat chiefs. The yałūactakȧmłȧth chief (first in rank) owned the waters along the outer coast (except where cut by the smaller claims), the southeast tip of Nootka Island and adjacent waters, and inland to the watershed of the of Nuchatlitz Inlet. This inland boundary, charted by a zigzag line, was rather vaguely defined, but those along the beaches were precise, located by natural landmarks (artificial markers were not used). [201] Mr. Dewhirst concluded: [T]he shared boundary of the Nuchatlaht and Mowachaht confederacies in 1846 has been mapped by Philip Drucker. In my opinion this boundary, admittedly less precise inland, was in effect before, at, and after 1846, because both confederacies were extant. I believe that with the cultural emphasis on ownership and definition of territory, that the boundary was mutually accepted. There is no indication from the ethnography and ethnohistory of any boundary dispute or conflict between the Mowachaht and the Nuchatlaht. There are no overlapping claims today. [202] The Nuchatlaht say the Claim Area lies entirely within the area identified as the Nuchatlaht's territory in Dr. Drucker's notes on a map showing a "zig zag line" along the boundary between the Nuchatlaht and the Mowachaht/Muchalaht territories. The appellant says Dr. Drucker used a zig zag line to indicate he regarded the height of land as the boundary. Mr. Dewhirst, relying on Dr. Drucker, said the boundaries between the Nuu-chah-nulth peoples, including the boundary between Nuchatlaht and the Mowachaht/Muchalaht, were usually heights of land. He speculates because Dr. Drucker did not have accurate information about the location of the height of land, he used the shorthand of a zig zag line to mark that boundary. Because Dr. Drucker's line is obviously imprecise, and to avoid conflict with the Mowachaht/Muchalaht with respect to the boundary between title claims, the Nuchatlaht have drawn the boundary of the claim entirely inside the Drucker line. The Mowachaht/Muchalaht acknowledge this was done. [203] As we have noted, the trial judge considered the historic maps to be not "accurate enough or sufficiently probative to fill the evidentiary gap related to sufficient occupation": RFJ #2 at para. 29. It is clear, however, that Dr. Drucker intended to illustrate the height of land as the boundary of territory occupied by the Mowachaht/Muchalaht to the south and east and the Nuchatlaht to the north and west. In light of the manner in which the claim has been presented, it is open to us to accept that the Nuchatlaht sufficiently occupied the Claim Area without having to settle the line demarcating the height of land. [204] Concerns with respect to imprecision led the Nuchatlaht to define the Claim Area by metes and bounds in its pleadings. As we noted at the outset, the appellant does not assert a claim to the whole of the territory to which they might be entitled. In our view, the Nuchatlaht have established a claim to title to the whole of the area they have claimed. [205] We allow the appeal, set aside the judge's declaration, and substitute in its place an order declaring the Nuchatlaht to have Aboriginal title to that part of Nootka Island described in the pleadings. [206] At trial, the Nuchatlaht sought an additional remedy that the Forest Act, R.S.B.C. 1996, c. 157, and the Park Act, R.S.B.C. 1996, c. 344, cease to apply to territory where Aboriginal title has been granted. In Tsilhqot'in, the Court accepted the Forest Act does not apply to areas of Aboriginal title as it is limited to areas of "Crown land": at paras. 107-116. The Province accepted this reasoning applied to the Park Act. We agree. Accordingly, to the areas where Aboriginal title has been recognized, the Forest Act and the Park Act do not apply. "The Honourable Mr. Justice Willcock" "The Honourable Justice Winteringham" "The Honourable Justice Gomery" Appendix A Figure 1: The Claim Area Advanced by the Nuchatlaht at Trial. Figure 2: The Declaration of Aboriginal Title at Trial. Figure 3: The Principal Claim Allowed at Trial. Figure 4: The Claim Allowed in the Mary Basin and Inner Basin at Trial. Appendix B Appendix C Appendix D [1] Culturally modified trees are trees that have been modified by Indigenous people for a cultural purpose such as making canoes, hats, drums. A review of these uses is discussed later in the reasons. [2] The Nuu-chah-nulth term hahaułi, (sometimes rendered as "hahoulthle" in English) refers to what Dr. Drucker defined as the "major territorial claims" of a chief.