Delgamuukw v. British Columbia
Delgamuukw v. British Columbia is a significant Supreme Court case from December 1997 that transformed the landscape of aboriginal land claims and rights in Canada. The case arose when fifty-one hereditary chiefs from the Gitxsan and Wet'suwet'en nations claimed ownership of 58,000 square kilometers of land in northwestern British Columbia, asserting that their title predates Confederation and had not been extinguished. Initially, a British Columbia Supreme Court judge dismissed their claims, rejecting the use of oral traditions as evidence. However, upon appeal, the British Columbia Court of Appeal partially overturned this decision, prompting further examination by the Supreme Court.
The Supreme Court ultimately ordered a new trial, ruling that oral traditions should be recognized as valid evidence in aboriginal rights cases. It established a framework for proving aboriginal title, requiring evidence of prior occupancy, continuity of occupation, and exclusive use before Crown sovereignty was asserted. This ruling emphasized the necessity for adapting legal standards to respect the rights and customs of aboriginal peoples. The decision encouraged all parties to engage in good faith negotiations, reflecting a commitment to finding a resolution that acknowledges the complexities of aboriginal land rights in Canada.
Delgamuukw v. British Columbia
This landmark case involving the Supreme Court of Canada, decided in December, 1997, conceivably revolutionized aboriginal affairs in Canada—particularly land claims—as well as jurisprudence in some fundamental ways. The high court overturned the decision of the British Columbia Court of Appeal in the matter of land claims by the House of Delgamuukw. The House, speaking on behalf of fifty-one hereditary chiefs, claimed ownership and jurisdiction over fifty-eight thousand square kilometers of land in northwestern British Columbia as native lands whose title dated back before confederation. The group further argued that aboriginal title had not been extinguished when British Columbia entered the confederation. The group attempted to use oral tradition to argue the first claim and section 35 of the 1982 Constitution Act to argue the latter point. Justice Alan McEachern of the British Columbia Supreme Court threw out the aboriginal case after one of the longest trials in Canadian history, rejecting the use of oral evidence and agreeing with the British Columbia government’s position that title had been extinguished with entrance into the confederation.
The case then went to the British Columbia Court of Appeal, which, by a three-to-two decision, overruled Judge McEachern on the question of extinguishment. The court did, however, agree with him on rejecting claims of ownership although it did not entertain questions of the fiduciary duties of the Crown in relation to lands claimed. The case then went before the Supreme Court of Canada, which issued a unanimous landmark decision in December 1997. The Court ordered a new trial, largely for two reasons. First, it ruled that Judge McEachern had erred in rejecting oral tradition as evidence. Noting that the laws of evidence typically work against the rights and customs of aboriginal people, the Court argued that “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 documentary evidence.”
Second, it ruled that the question of aboriginal title had to be dealt with more closely and clearly. The court therefore spelled out eight core components of aboriginal title. Title is a collective right, it is inalienable, it is a legal right to the land itself, it arises from aboriginal occupation of the land before colonial assertion, it is an exclusive right to use the land for a variety of purposes, it includes mineral rights, it is to protect aboriginal relationship to the land, and lastly it is a right but not an absolute right.
To prove aboriginal title, the Supreme Court set out a threefold test. First, the land must have been occupied by aboriginal peoples before Crown assertion of sovereignty (for British Columbia, that means before 1846); second, there must be continuity between present occupancy of the land extending back prior to 1846 (that is, occupancy must not have been interrupted or given up); and third, at the date of Crown assertion of sovereignty, the occupation of the land by aboriginals must have been exclusive.
The case presented many issues unaddressed by the Canadian Supreme Court, issues largely outside its competency, so it ordered a new trial in which the foregoing principles were to have been taken into account. The high court thus urged all parties to serious negotiations in “good faith,” which it hoped would result in compromises but ultimately a settlement because, as the majority decision concluded, “let us face it, we are all here to stay.”
Bibliography
Foster, Hamar. “Aboriginal Title and the Provincial Obligation to Respect It: Is Delgamuukw v. British Columbia ‘Invented Law’?” Advocate 1998: 221. Print.
McGillivray, Brett. Geography of British Columbia : People and Landscapes in Transition. Vancouver: UBC P, 2005. eBook Collection (EBSCOhost). Web. 16 Apr. 2015.
Muckle, Robert James. The First Nations of British Columbia : An Anthropological Overview. Vancouver: UBC Press, 2014. eBook Collection (EBSCOhost). Web. 16 Apr. 2015.
Riordon, Michael. “Evidence And Oral History.” Beaver 84.6 (2004): 11–12. Academic Search Complete. Web. 16 Apr. 2015.
Suzack, Cheryl. “The Transposition of Law and Literature in ‘Delgamuukw’ and ‘Monkey Beach.’” South Atlantic Quarterly 110.2 (2011): 447–463. Academic Search Complete. Web. 16 Apr. 2015.
Yurkowski, Rachel. “‘We Are All Here to Stay’: Addressing Aboriginal Title Claims after Delgamuukw v. British Columbia.” Victoria U Of Wellington Law Rev. 3 (2000): n. pag. Print.