Delgamuukw v. British Columbia, 1997

1. Delgamuukw v. British Columbia, 1997

2. Background • Claims to Aboriginal title and self-government over 58, 000 km2 in BC interior brought by Delgamuukw and hereditary chiefs of the Gitksan and Wet’suwet’en. • SCC’s first definitive statement on the content of Aboriginal title: • Defines how Aboriginal title may be proved; • Describes the scope of protection afforded Aboriginal title under s. 35(1) of the CA, 1982 and; • Outlines the justification tests for infringing upon Aboriginal title

3. Unresolved Issues • Land titles claim at issue was not resolved in this case (new trial required). • Claim of self-government not resolved by ruling.

4. Scope of Aboriginal Title • Aboriginal title is a “collective right” and cannot be held by individuals. • Aboriginal title is inalienable except to the federal Crown (cannot be sold to third parties). • Unfreezing of title from strictly traditional uses: • Holders of native title have rights beyond traditional uses, • “Inherent limit” – land cannot be used in a manner that is irreconcilable with the nature of the claimants’ attachment to the land.

5. Proving Aboriginal Title • Use of oral tradition evidence in Aboriginal rights claim cases determined to be acceptable. • The origin of Aboriginal rightsoriginate not from any grant or recognition by the Crown but rather from the historic occupation and possession of the land by Aboriginals groups [Calder v. B.C. (A.G.), 1973]. • In previous cases courts ruled that when claiming rights to engage in particular activities (e.g. fishing) Aboriginal rights must go back to time of first contact with Europeans. • However, relevant time period for assertion of land title is time at which the Crown asserted sovereignty (at odds with earlier suggestion that title is a sub-category of rights).

6. Proving Aboriginal Title • Proof of occupation prior to sovereignty.Therefore Aboriginals must establish that they already occupied the land for which they are claiming title at the time of assertion of British sovereignty. • Evidence of occupation (present and pre-sovereignty occupation) • Occupation must have been exclusive at sovereignty

7. Justification for Infringing Aboriginal Rights • Province cannot extinguish Aboriginal title, only the federal Parliament can under s. 91(24). • Aboriginal title not absolute - the Crown must have compelling & substantial legislative objectives for infringing these rights: • Development of agriculture, forestry & mining • Infringement is required to be as minimal as possible • Government required to give real weight and priority to Aboriginal interests in development on their land. • Minimum duty to consult, and in some circumstances, full consent by entire nation and financial compensation is required.

8. Questions • Does the acceptance of Crown sovereignty in Delgamuukw place Aboriginal title in a subordinate position relative to other legal rights? • Does the legal framework established by the ruling undermine Aboriginal land rights? • Given the “inherent limit” on uses of land, (i.e. land cannot be used in a manner that is irreconcilable with the nature of the claimants’ attachment to the land), how far does this really extend Aboriginal land rights beyond traditional uses?