Supreme Court of Canada –  3 S.C.R. 1010 – “Delgamuukw”
Without a doubt one of the most known and quoted aboriginal law cases in Canada, Delgamuukw clarifies the nature and scope of the constitutional protection granted by section 35(1) of the Constitution Act, 1982 to aboriginal title.
The justices confirmed that aboriginal title is a right to the land itself, that it allows activities other than customary, and that Aboriginals must be compensated in the event of a breach to this right. They also allowed for oral evidence.
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”. Let us face it, we are all here to stay. (par. 186 of the decision)
How can an Aboriginal title be defined under section 35 (1) of the Constitution Act, 1982, and how can it be proven?
The exclusive occupation of the land at the time of sovereignty assertion by the Crown (and not at the time of contact) must be proven, as well as the anterior and continued existence of a social organization. Oral evidence must be accepted (4 justices against 2 – 1 abstention).
Between: Delgamuukw, also known as Earl Muldoe, suing on his own behalf and on behalf of all the members of the Houses of Delgamuukw and Haaxw (and others suing on their own behalf and on behalf of thirty-eight Gitksan Houses and twelve Wet’suwet’en Houses)
And: the Crown of British Columbia
Interveners: The First Nations Summit, the Musqueam Nation et al., the Westbank First Nation, the B.C. Cattlemen’s Association et al., Skeena Cellulose Inc., Alcan Aluminum Ltd.
Since the 1970s, the Wet’suwet’en and Gitksan Nations in northern British Columbia have been claiming jurisdiction, ownership and self-government over their traditional lands. Tired of the slow process of negotiations and the rapid succession of governments in British Columbia and Canada, they decided to seize the Supreme Court of British Columbia in 1984 for ownership and jurisdiction over a territory of 58,000 square kilometres. The claim was modified before the Court of Appeal to a claim for Aboriginal title and the right to self-government over the same territories.
Delgamuukw and the other appellants are the hereditary chiefs of the Wet’suwet’en and Gitksan Nations in British Columbia and represent all of their members. When the issue was first heard before the Supreme Court of British Columbia, each “house” or “clan” had a separate claim.
Delgamuukw et al.: They have a right to self-government over their traditional territories, which is protected under section 35 (1), and can be proven by the testimony of their elders showing the spiritual link between the territory and their traditions and celebrations. Since their lands fall under this constitutional protection, the federal government and the British Columbia government cannot appropriate them without both Nations’ consent, or authorize economic activities and resource exploitation or lawfully legislate over the inhabitants, the vast majority of whom are Aboriginal (Olthuis, Kleer and Townshend, 2008).
The Crown of British Columbia and Canada: Aboriginals had no right or interest in these lands. Their only viable option was asking for indemnities granted by the federal government.
Supreme Court of British Columbia (1991): The oral history of attachment to the land is not accepted. The case against Canada is rejected as the claims for ownership and jurisdiction and for Aboriginal rights in the territory. A declaration that the Nations were allowed to use “unoccupied or vacant land” conditional on the general laws of the province is issued. The claim for damages is dismissed.
British Columbia Court of Appeal (1993): In the appeal, the claims were modified: the claims for ownership and jurisdiction were changed to claims for Aboriginal title and self-government, and the claims by each House were amalgamated into two joint claims. The appeal is dismissed.
Lamer, Cory, McLachlin, Major
Sopinka did not participate.
There is a distinction between the tests for Aboriginal title and the tests concerning Aboriginal rights. Aboriginal title includes the right to full use and exclusive occupation of the land possessed. There is no requirement that these uses should be limited to Aboriginal practices, customs and traditions that are integral to the Wet’suwet’en and Gitksan culture, but they must be compatible with the nature of the group’s attachment to that land. Still, they can be exploited for resources.
In order to establish the existence of an aboriginal title, one must prove an exclusive occupation of the land prior to the Crown’s assertion of sovereignty (and not contact), and the existence of a prior social organization over a continuing period of time. Oral evidence is accepted.
Aboriginal title is a sui generis (unique) right stemming from the Royal Proclamation of 1763, which can only be ceded to the Crown. It is collectively owned. This right was also recognized in common law before 1982. It is protected by section 35 (1) of the Constitution Act, 1982 as a type of Aboriginal right linked to a particular territory, which gives a stronger protection to any uses that the group may make of that territory. Aboriginal rights vary within a specter, depending on their attachment to the territory. If a certain group cannot prove an Aboriginal title, it can still have an Aboriginal right to an activity on the same territory. Aboriginal title is a right to the territory itself.
Aboriginal title is not absolute, and can be infringed upon if there is a legitimate legislative objective, such as economic development of a territory and natural resource management, and if this is done while respecting the Crown’s fiduciary obligation towards First Nations. First Nations must therefore be consulted before governments take any action on their lands.
Regarding the extinction of the Aboriginal right, it must be remembered that section 91 (24) of the Constitution Act, 1867 gives Parliament jurisdiction over Aboriginal people, including Aboriginal title, which means that the Crown can also extinguish this title. Also, section 88 of the Indian Act states that provincial laws of general application can be applied to Aboriginal people on reserves or to Aboriginal lands if this does not affect “Indianness.”
In this case, there was not enough proof to recognize an Aboriginal title held by the Gitksan and Wet’suwet’en, and the case was sent back to the Supreme Court of British Columbia.
The question of self-government was not discussed by the Court because of the trial judge’s mistakes in his assessment of the facts and due to the complexity of the question.
The Delgamuukw case is seen by many authors and academics as an attempt to rebalance the negotiation relationship between First Nations and government after the setbacks in Van der Peet (Slowey, 2000). Land claim negotiations and settlements now had new guidelines to follow.
In 1998, the Department of Indian Affairs and Northern Development (DIAND), British Columbia’s Aboriginal Affairs Department and the Grand Chief of the province’s First Nations Summit started to review the treaty negotiation process in order to harmonize it with the Delgamuukw decision and with each of the parties’ concerns. The Assembly of First Nations (AFN) also asked the federal government to reform its land claim policies (Hurley, 2000).
As a result of the report of the Royal Commission on Aboriginal Peoples (RCAP), the federal government had new guidelines for land and resource negotiations which also followed what was learned in Delgamuukw in Gathering Strength, and which are set out in three phases. Interim measures can be put into place at the start of negotiations. There was also an implied assumption that Canada would provide the funds for such measures. The parties would move on to the negotiation of economic development agreements regarding land and resources. Finally, settlements would be concluded in respect to land and resources (Robertson, 2000).
In 1999, a Capacity Panel with seats for Aboriginal communities (interior and coastal), the resource sector, the British Columbia Treaty Commission and participants from other disciplines released its Final Report. It found that successful treaty negotiations must begin with a mutual recognition of Aboriginal title by the governments of British Columbia and Canada and of Crown title by First Nations.
The report also recommended using flexible mandates instead of fixed positions in order to accommodate each party. Other key elements include increasing public awareness about treaty issues and adapting the negotiation process to follow Delgamuukw (BC Treaty Commission, 1998). Progress was also made in the field when an Agreement-in-Principle was reached between the Sechelt Indian Band and the federal and provincial governments in April, a first under the BCTC process.
Wet’suwet’en and Gitksan negociations
An Accord Between the Province of British Columbia And The Hereditary Chiefs Of The Wet’suwet’en People was reached, in which both parties affirmed their commitment to renew their treaty negotiations instead of letting the courts decide. The agreement provided for a partnership in economic development, job training and further negotiations that would result in a final agreement (Aboriginal Affairs, 1998). To sort out the impacts of the ruling, another accord, the Reconciliation Agreement between Her Majesty in Right of British Columbia and the Hereditary Chiefs of the Gitxsan, was reached between the province and the Gitxsan Nation, which will become the basis of new negotiations aimed at cooperatively developing the resources and revenues from the territory to the province’s advantage while helping the Gitxsan to protect over-harvested resources and boost their local economy (Delgamuukw, 1998).
Both of these agreements ended litigation between the Nations and the government: the new case before the Supreme Court of British Columbia was never heard. British Columbia also set out operational guidelines in order to help the provincial ministries and agencies conform to the conditions set out in Delgamuukw.
In 1998, the Delgamuukw Gisday’wa National Process (DGNP) was founded with the goals of helping to organize First Nations to gain title to their territories and educating them on the implications of Delgamuukw in terms of new opportunities for negotiation, since 70% of them were engaged in negotiations with the government (Robertson, 2000). The DGNP also conducted legal research on and analysis of Aboriginal title as a way to provide First Nations with new strategies (Satsan, 2000).
The consequences of the Court’s decision in Delgamuukw considerably affect the province’s administration since its economy and administration are based on its ownership and jurisdiction over Crown lands (Robertson, 2000).
Aboriginal law experts deemed that negotiations were the key to resolving this issue (Isaac, 2004). For instance, shortly after the decision was delivered, the Nisga’a Final Agreement (1998) was concluded, as were the Approche Commune in 2000 and the Paix des Braves in 2002, both in Quebec. In 1998, after the decision, the Quebec government developed policy tools in order to fulfill the terms of the 1985 resolution regarding the distinct status of Aboriginal peoples and their right to autonomy and self-determination in a new policy called Partenariat, Développement, Actions.
Accordingly, Quebec stepped in in four areas: creating a new political entity between the Assemblée nationale and First Nations, concluding new accords aiming at increasing accountability and development in First Nations, and promoting Aboriginal initiatives in economic and community development in a new program designed to help them achieve their economic independence (Secrétariat des affaires autochtones, 1998). In fact, the Agreement-in-Principle with the Innu of Quebec contains clauses providing for an Innu government under which the bands concerned will be able to enact their own legislation in accordance with the Innu Constitution (Secrétariat des affaires autochtones, 2009).
In Alberta, Saskatchewan and Manitoba, Delgamuukw seems to have had little impact since all of their territory is covered by numbered treaties. Some bands could now claim Aboriginal title as they had never signed any of the treaties, but this would have a limited impact. The decision’s most significant effect pertains to the Supreme Court of Canada’s recognition of oral tradition as independent evidence since in Delgamuukw, there were no texts for the court to assess: the evidence presented by the Nations was the testimony of their elders, who talked about the spiritual link between their people and their traditional lands.
As for Atlantic Canada, this decision greatly influenced R. v. Bernard; R. v. Marshall concerning the Mi’kmaq’s claim of an Aboriginal title in Nova Scotia and New Brunswick, which expands on the notion of occupation and exclusivity (Olthuis, Kleer and Townshend, 2008).
R. v. Sparrow,  1 S.C.R. 107
R. v. Van der Peet,  2 S.C.R. 507
Haida Nation v. British Columbia (Minister of Forests) ,  3 S.C.R. 511
Aboriginal Affairs. 1998. Agreement Reinvigorates Treaty Discussions with Wet’suwet’en. On-line. http://www2.news.gov.bc.ca/archive/pre2001/1998/1104.asp. Consulted August 25, 2009.
BC Treaty Commission. 1998. Removing obstacles will invigorate treaty talks. On-line. http://www.bctreaty.net/files/pdf_documents/update_feb-1999.pdf. Consulted August 26, 2009.
Delgamuukw. 1998. Statement at the Signing of the Reconciliation Agreement. On-line. http://www.ceaa.gc.ca/050/documents_staticpost/cearref_3394/hearings/07-05-23-Agreement.pdf. Consulted August 25, 2009.
Flanagan Thomas. 2000. “Effect on Alberta Land Claims” in Beyond the Nass Valley: National Implications of the Supreme Court’s Delgamuukw Decision, edited by O. Lippert: 173-182. Vancouver: Fraser Institute.
Hurley Mary C. 2000. Aboriginal Title: The Supreme Court of Canada Decision in Delgamuukw v. British Columbia. Parliamentary Research Branch of the Library of Parliament. Report for Members of the Senate and House of Commons. On-line. http://www.parl.gc.ca/information/library/PRBpubs/ bp459-e.htm#CHRONOLOGYtxt. Consulted August 25, 2009.
Isaac Thomas. 2004. Aboriginal Law: Commentary, Cases and Materials, 3rd ed. Saskatoon: Purich Pub.
Olthuis John, Kleer Nancy and Roger Townshend. 2009. Aboriginal Law Handbook. Scarborough: Thompson Carswell.
Robertson Alec C. 2000. “An Overview of Treaty Negotiations Before and After Delgamuukw” in Beyond the Nass Valley: National Implications of the Supreme Court’s Delgamuukw Decision, edited by O. Lippert: 133-141. Vancouver: Fraser Institute.
Satsan (George Herb). 2000. B.C. Regional Vice-Chiefs Quarterly Report. On-line. http://www.bcafn.ca/index.php?option=com_docman&task=doc_view&gid=20&Itemid=29. Consulted August 26, 2009.
Secrétariat des affaires autochtones. 2009. Québécois et Innus: Ensembles vers un traité – L’entente de principe. On-line. http://www.versuntraite.com/entente_de_principe/autonomie.htm. Consulted August 26, 2009.
Secrétariat des affaires autochtones. 1998. Partenariat, Développement, Actions : affaires autochtones, orientations du Gouvernement du Québec. Québec: Gouvernement du Québec.
Slowey Gabrielle A. 2000. Aboriginal Self-Government Extinguishment of Title and the Canadian State Effectively Removing the “Other”?, Native Studies Review 13 (1).