This paper is an analysis of the anthropological evidence used in The Nuchatlaht v British Columbia. I address how this evidence was interpreted, argued over, and ultimately understood by the court in a way that did not support a finding of Aboriginal title. I examine this evidence against the requirement of the test for Aboriginal title in Canadian law. This test focuses on exclusive ownership and sufficient use and occupation before 1846. Canadian courts have said that Aboriginal title is a unique legal concept that blends the common law and Aboriginal perspectives. The Nuchatlaht made a territorial argument. A territorial approach to Aboriginal title is based on the recognition of Indigenous jurisdiction over a territory. I argue that Canadian courts’ continuing emphasis on a site-specific use and occupancy approach shows that the test for Aboriginal title reflects common law concepts of property more than it reflects Indigenous law.
