Delgamuukw v British Columbia, [1997] 3 SCR 1010, also known as Delgamuukw v The Queen, Delgamuukw-Gisday’wa,[1][2] or simply Delgamuukw, is a ruling by the Supreme Court of Canada that contains its first comprehensive account of Aboriginal title (a distinct kind of Aboriginal right) in Canada. The trial judgment, which is 394 pages in length, deals with a great deal of history and the concept of aboriginal title. To mark this week’s ten-year anniversary, TheCourt.ca commissioned a pair of pieces from two of the lawyers involved in the case. Having taken that position, I sought instructions from the Attorney General, who agreed that the court should appoint an amicus curii to argue the position reached by the Chief Justice at trial, so that all aspects would be before the court. Thus, the rest of the opinion is technically obiter dicta, but it is still significant in that it has been restated and summarized in Tsilhqot'in Nation v British Columbia.[5][7][3]:100,104. [11] On October 24, 1984, thirty-five Gitxsan and thirteen Wet’suwet’en hereditary chiefs filed their statement of claim with the British Columbia Supreme Court. Fisher, Robin (1992) "Judging History: Reflections on the Reasons for Judgment in Delgamuukw vs. Once again, the differences could only be properly understood by a careful reading of the judgment. B.C. [30] The response from the various First Nations in British Columbia varied: some interested in the treaty negotiation process, some in the economic integration through interim measures, and some considering additional litigation. 204, 98 E.R.
I approached three of Canada’s leading counsel to ask whether the Government of the Province of British Columbia could argue that its trial-court victory on extinguishment issue should be ignored. In the end, it was clear to the court that there was insufficient evidence to establish which parcels of land were covered by aboriginal title, and which parcels were therefore the subject of unextinguished rights. Delgamuukw v. British Columbia, [1997] 3 SCR 1010, COURT OF APPEAL SUMMARIES (JUNE 27 – JUNE 30), The Children's Aid Society of Ottawa v. A.C., 2016 ONCA 512 (CanLII). That we did. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land. Delgamuukw v. British Columbia, [1997] 3 S.C.R. [14] In Canadian Pacific Ltd v Paul, the Court elaborated, "it is more than the right to enjoyment and occupancy, although, … it is difficult to describe what more in traditional property law terminology.
"[18][3]:100[23] He didn't recognize pre-contact "institutions" and instead said that "they more likely acted as they did because of survival instincts.
The Court of Appeal was not unanimous on a number of issues, however.
BLANEY’S APPEALS: ONTARIO COURT OF APPEAL SUMMARIES (OCTOBER 8... Ontario Court of Appeal Takes a Few Digs at the Doctrine of Di... Tyendinaga Mohawk Council v. Brant, 2008 CanLII 45007 (ON SC), Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2006 CanLII 26171 (ON SC). SIGN UP WITH: FACEBOOK TWITTER Email Log In — Mar 1, 2015. : 99 The Gitxsan and Wet'suwet'en peoples claimed Aboriginal title and jurisdiction over 58,000 square kilometres in northwest British Columbia. Both opinions concluded by encouraging all parties to pursue negotiated agreements through good faith negotiations. EN; FR; Toggle Navigation. "[18][24] He described the position of the Gitxsan and Wet’suwet’en as "idyllic" and "romantic". [9][10] By 1984, British Columbia had begun to allow clear-cut logging in the Gitxsan and Wet’suwet’en territory without permission from the hereditary chiefs. I determined after those conversations that if the government wished to change its mind, and if I as counsel could give an opinion that Confederation had not effectively extinguished aboriginal rights, then we could go forward with the case. [4]:para 87[28], The trial judge, after refusing to admit, or giving no independent weight to these oral histories, reached the conclusion that the appellants had not demonstrated the requisite degree of occupation for "ownership". "[12], The trial took 374 days (318 days of evidence and 56 days of closing argument), spanning May 11, 1987 to June 30, 1990, in Vancouver and Smithers, British Columbia. [T]he Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Is Canada No Longer Responsible for Historical Treaties? Could the court rely upon what has always been referred to as hearsay evidence, passed down from one generation to another, to establish title?
Lead counsel at the trial for the Province of British Columbia was D.M.M. That issue was dealt with by the Court of Appeal, and ultimately, in the Supreme Court of Canada, resolved in favour of the appellants. In any event, since the Court of Appeal had decided that aboriginal title had not been extinguished by Confederation, Delgamuukw proceeded to the Supreme Court of Canada. Only a careful reading of the Court of Appeal judgment could do justice to those issues and how they impacted upon the Crown and the Gitksan and Wet’suwet’en. Today, Bryan Williams, lead counsel for the Province of British Columbia at the Court of Appeal (and later Chief Justice of the B.C. [4]:para 165, The second prong of the justification test asks whether the infringement is "consistent with the special fiduciary relationship between the Crown and aboriginal peoples." Supreme Court), provides an insider’s account of the events leading up to the Supreme Court ruling. "[18][23] He was "unable to accept adaawk, kungax and oral traditions as reliable bases for detailed history but they could confirm findings based on other admissible evidence. Rather, it wished to argue that extinguishment had not taken place. Aboriginal rights like other rights, I explained, could not be impliedly extinguished but had to be expressly extinguished to be effective. [12][27], The appeal was heard at the Supreme Court of Canada on June 16 and 17, 1997. In the years leading up to Delgamuukw, I had done a fair amount of aboriginal work as counsel to several nations of native people. B.C. Aboriginal title, which is right to the land itself, and which entails the right to a broad range of uses, only subject to the inherent limit against uses irreconcilable with the nature of the group's attachment to the land. SIGN UP WITH: FACEBOOK TWITTER Email Log In — Mar 1, 2015. On December 11, 1997, the Supreme Court of Canada handed down its landmark decision in Delgamuukw v The Queen. [4]:para 117, The majority affirms that this is a sui generis right arising from the prior occupation of the land by Indigenous people;[28] it is not fee simple ownership. EN; FR; Contributors ; Visit for cases and legislation Search; Sign Up. However, shortly thereafter, I was appointed to the Court of Appeal of British Columbia. "[12] In Calder v British Columbia (AG), the Supreme Court recognized that Aboriginal title to land was based in "historic occupation and possession" of their traditional territories and "does not depend on treaty, executive order or legislative enactment."[13][14]. [19][18][17][20] Sixty-one witnesses gave evidence at trial, many in their own languages, using translators. Aboriginal rights like other rights, I explained, could not be impliedly extinguished but had to be expressly extinguished to be effective. Some lands were village sites, some were fishing sites, some were hunting and gathering areas and some of the land was barely if ever used for any purpose. [30] The government adopted some interim measures that shared some of the economic benefits resulting from resource development in land-claims areas. The Uncertain Status of the Doctrine of Interjurisdictional Im... Sechelt Indian Band v. British Columbia (Manufactured Home Park Tenancy Act, Dispute Resolution Officer), 2013 BCCA 262 (CanLII). Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Van der Peet to be a basic purpose of s. 35(1) -- “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”. 1045 (K.B. Another interesting issue was the use of oral evidence. ", "Two Controversial Judges: One Replacing the Other", "Province Suspends Treaty Negotiations with Gitxsan", "Assessing the Delgamuukw Principles:National Implications and Potential Effects in Quebec", "British Columbia after the Delgamuukw Decision: Land Claims and other Processes", Section 25 of the Canadian Charter of Rights and Freedoms, Section 91(24) of the Constitution Act, 1867, Ongoing treaty negotiations in British Columbia, Definitions and identity of indigenous peoples, United Nations Permanent Forum on Indigenous Issues, Index of articles related to Indigenous Canadians, https://en.wikipedia.org/w/index.php?title=Delgamuukw_v_British_Columbia&oldid=972542276, First Nations history in British Columbia, Creative Commons Attribution-ShareAlike License. Rather, it wished to argue that extinguishment had not taken place. Note: "Aboriginal law" refers to Canadian law dealing with indigenous peoples, whereas "indigenous law" refers to the customary law of individual indigenous groups. I determined after those conversations that if the government wished to change its mind, and if I as counsel could give an opinion that Confederation had not effectively extinguished aboriginal rights, then we could go forward with the case. Nonetheless, the entire area was claimed by the Gitksan and Wet’suwet’en chiefs. ), at paras. I was asked by the Attorney General and Premier of British Columbia to act as lead counsel for the province in the Delgamuukw appeal. I indicated that, with the greatest of deference, I disagreed with the Chief Justice. That issue was dealt with by the Court of Appeal, and ultimately, in the Supreme Court of Canada, resolved in favour of the appellants. [17][18] Some of this knowledge was translated into maps. Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.