Why is the Delgamuukw decision important?
The Supreme Court’s 1997 Delgamuukw decision is important because it clarified what Aboriginal title is and what is required to prove it in court.
At trial the Gitxsan and the Wet’suwet’en sought recognition of their respective nation’s ownership and jurisdiction over approximately 58,000 square kilometres in north-western British Columbia. The Supreme Court considered their arguments as a claim for Aboriginal title.
In Delgamuukw (also known as Delgamuukw-Gisday’wa) the Court decided the rules of evidence had to be adapted to allow for the consideration of Indigenous Peoples’ oral histories. The Court also decided Aboriginal title is not simply a bundle of rights: it is a right to the land itself. It includes the right to benefit from the land and the right to decide how the land is used or not used.
Implicitly relying on the Doctrine of Discovery, the Court assumed Crown title to Indigenous lands was established through the assertion of Crown sovereignty. Consequently, to prove Aboriginal title, an Indigenous nation must prove its exclusive occupation of the land before the assertion of Crown sovereignty. Occupation might be proven through physical occupation or the existence of Indigenous laws over the land.
The Court held that while Aboriginal title could not have been extinguished prior to 1982 by provincial laws, the Crown might be able to infringe it for a wide range of reasons including mining, hydroelectricity, the settlement of foreign populations, etc.
Because the nations had argued at trial for ownership and jurisdiction instead of Aboriginal title, the Court decided a new trial was necessary. The new trial has never been held. In 2014 the Tsilhqot’in, building on the Delgamuukw decision, succeeded in obtaining the first declaration of Aboriginal title in Canadian history.
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Bruce McIvor, lawyer and historian, is partner at First Peoples Law LLP. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada. Bruce's ancestors took Métis scrip at Red River in Manitoba. He holds a law degree, a Ph.D. in Aboriginal and environmental history, is a Fulbright Scholar and author of Standoff: Why Reconciliation Fails Indigenous People and How to Fix It. He is a member of the Manitoba Métis Federation.
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First Peoples Law is a law firm dedicated to defending and advancing the rights of Indigenous Peoples in Canada. We work closely with First Nations to defend their Aboriginal title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their members.
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