Ulfa Ismail
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010
Key Terms
s. 35(1) Recognition of existing aboriginal and treaty rights: As part of The Constitution Act of 1982, this section acknowledges and affirms the Aboriginal and treaty rights of the Aboriginal peoples of Canada
Aboriginal title: Refers to the Aboriginal ownership of traditional land(s)
Background
The Gitskan and Wet’suwet’en are Indigenous peoples who live on territory situated in the modern-day province of British Columbia. In 1991, Chief Earl Muldoe, commonly known as Delgamuukw, along with several other Gitkan and Wet’suwet’en hereditary chiefs sought to claim ownership and jurisdiction over a combined total of 58 000 square km of land. The Gitskan and Wet’suwet’en territories in question shared eastern and southern borders. Both the Gitksan and Wet’suwet’en tribes are divided into subcategories of clans and houses, with each house having one or more Hereditary Chiefs. Membership into a respective tribe is granted to a person by way of their mother. At the time of the case, the Gitskan people had a tribe population of about 4 000 to 5 000 members while the Wet’suwet’en had a population of about 1 400 to 2 000 members living within their respective historical territories. Both territories, however, included populations of Aboriginal peoples from alternative tribes as well as a non-aboriginal population of about 30 000 people.
Procedural Posture
In the pursuit of jurisdiction over the combined 58 000 square kilometres of territory, Delgamuukw, along with other hereditary chiefs (the Appellants), took the province of British Columbia to court. Their ownership claim was based on their respective people's historical use and ownership of the land in question. Submitted evidence of said historical use and ownership came in the form of demonstrating historical tradition. The Gitksanh Houses brought something called “adaawk” to court; a set of sacred oral traditions regarding their ancestral and territorial histories. Similarly, the Wet’suwet’en submitted “kungax” a spiritual song/dance performance which is meant to highlight ties to their territory.
At trial, the judge noted that physical evidence can be used in court to prove historical land use and ownership. An example of physical evidence would be a Totem Pole marked with a House’s Crest. Ultimately, the evidence of oral traditions submitted by the Gitksanh and Wet’suwet’en Houses was intangible and thus, unacceptable as evidence in claims for Aboriginal land ownership.
Furthermore, since the territories in question fell under the province of British Columbia, it was concluded at trial that any pre-existing title, that is Aboriginal claims of ownership to land, ceased following the confederation of British Columbia. As a result, all claims for ownership and jurisdiction were dismissed.
the British Columbia Court of Appeal
Following the initial trial, the case went to the British Columbia Court of Appeal. It was held in court that in circumstances where the government could damage territory or violate Indigenous land rights, the government had a responsibility to consult with Indigenous peoples and compensate for damages when necessary. Despite agreeing with the appellate in this regard, the court also agreed with the conclusions made at the initial trial regarding the inadmissibility of oral traditions as evidence. Thus, it was held that neither the Gitksan nor the Wet’suwet’en held a title to the territory in question. Both peoples, however, could use vacant land per British Columbia’s provincial laws.
Supreme Court Holding and Reasoning
The appeal made before the Supreme Court sought to tackle several issues. Most notably, (1) How can “aboriginal title” be defined and what evidence is required to claim it? (2) How does s.35(1) protect aboriginal title? As well as (3) Did British Columbia have the power to extinguish aboriginal rights after joining the confederation in 1871?
The majority of the Supreme Court of Canada (SCC) defined “aboriginal title” as Aboriginal people's exclusive right to land. The SCC held that oral history can serve as valid evidence and can be of critical importance in claims to aboriginal title. Hence, previously submitted oral traditions should be treated equally to any piece of physical evidence and should be evaluated based on its exclusivity, continuousness and sufficiency.
Additionally, Section 35 of The Constitution Act, denotes aboriginal title as an existing Aboriginal right. Finally, the SCC concluded that provincial governments did not have the right to extinguish Indigenous peoples' rights to historical territories.
With these rulings, the SCC did not decide on the initial ownership claims from the Gitksan and Wet’suwet’en representatives. The majority allowed the appeal in part, ordering for a new trial to take place.
Implications
Although land ownership was not granted to the Appellants of this 1997 case, significant landmark precedents were set regarding Aboriginal land rights. aboriginal title was defined as having ownership rights to land as opposed to simply holding the right to usage of a given area of land and its natural resources. Constitutionally, it was determined that aboriginal title rights were protected under s.35(1). It also set the precedent that Canadian government bodies are responsible for not bypassing consultation and at times compensating Indigenous peoples in situations where their land rights are violated.
Famously, the Delgamuukw Test was created to be used by Indigenous groups seeking aboriginal title. The test calls for the approval of title claims under the conditions that (1) it can sufficiently demonstrate to other First Nation groups and European settlers that they occupied the land in question. (2) it can be demonstrated that ownership of said land was continuousness and (3) that the territory was exclusive to one or more Indigenous groups.
Given Canada’s settler colonial past and present, such precedents regarding land rights remain relevant today. Indigenous peoples across diverse lines seek to legally exercise their title rights, a process which is of critical importance within the context of reconciliation and justice. To many, there remains debate on what forms of government compensation, if any, are valid in instances where Indigenous land rights are violated, particularly within energy and natural resource extraction projects. With existing challenges such as climate change and water quality faced by some Indigenous peoples, such debates remain highly consequential.
Bibliography
Beaudoin, Gerald A, and Michelle Filice. “Delgamuukw Case.” Thecanadianencyclopedia.ca, August 18, 2017. https://www.thecanadianencyclopedia.ca/en/article/delgamuukw-case.
Lexum.com. “Delgamuukw v. British Columbia - SCC Cases,” 2017. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1569/index.do.
Lexum.com. “The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 | Federal Statutes / Lois Fédérales,” 2023. https://qweri.lexum.com/w/calegis/schedule-b-to-the-canada-act-1982-uk-1982-c-11-en#!fragment/sec35subsec1/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoJC4BmAVgkQCNK4BGASgBpltTCIAiokK4AntADkEzpTC4EQkeKkzCchAGU8pAELiASgFEAMoYBqAQQByAYUOdSYRtFLY47dkA.
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