AOH :: DELGAMUU.TXT|
A bacgrounder into the Delgamuuka decision in Sepreme Court of Canada on Native Land Claims Issues
From HBreen@island.net Mon Mar 23 11:49:49 1998
Date: Mon, 23 Mar 1998 10:08:52 -0800
From: Howard Breen <HBreen@island.net>
Subject: NN: Delgamuukw decision backgrounder
Delgamuukw decision backgrounder: I post the following from my friend
Steve Rison who I believe has written a thorough summary and analysis
of the Delgamuukw ruling. I hope you find it as informative as I have.
Delgamuukw and the BC Treaty Process: Where Are We Now?
By Steve Rison March 15, 1998
Although three months have passed since the Supreme Court of Canada (SCC)
handed down its decision in the Delgamuukw v. British Columbia case, there
is still considerable debate about its meaning. Over one-hundred hereditary
and elected leaders of British Columbia First Nations signed a Statement to
Minister Stewart & Minister Cashore in January which articulates their
perspective on the Delgamuukw decision, but no direct response from either
provincial or federal governments has emerged yet. Needless to say, there
are many lawyers pouring over every word of the decision in an attempt to
see how it might affect the bargaining positions of all the various players
in the treaty process, including municipal governments and third parties.
In this article I will attempt to explain in plain language some of the
opinions that have been expressed thus far, so that we can evaluate what,
if any, impacts or opportunities this landmark decision might hold for the
environmental community. In addition, I will also provide a brief summary
of the First Nations Statement to Ministers, mentioned above, and a few of
the tentative comments coming from government bureaucrats.
The Delgamuukw case has been in the courts since the early 1980s, and was
initiated by the Gitksan and Wet'suwet'en peoples with the aim of forcing
the BC government to recognize Aboriginal title to their traditional
territory, encompassing some 58,000 square kilometers in north-central
British Columbia. This Court action was necessary for the Gitksan and
Wet'suwet'en because of the provincial government's long-held view that
aboriginal rights in BC were extinguished after 1871 and that any legal
action should be for compensation from the Government of Canada. The case
is remarkable for its length, and especially for the detailed and extensive
oral evidence that was presented.
The SCC could not rule on a number of the factual and legal issues specific
to the Gitksan and Wet'suwet'en, such as the extent of their territory,
their claim for Aboriginal title, and their claim for self-government
rights. These will have to be decided in a new trial, or negotiated through
treaties. However, the Court made some far-reaching decisions in regard to
a number of very important issues of general law. These include the
admissibility of aboriginal oral history as evidence, the nature of
aboriginal title, the test for proving aboriginal title, infringement of
aboriginal title, and extinguishment of aboriginal title.
Before describing each of these issues, it is important to understand the
relationship between aboriginal rights and aboriginal title. Existing
aboriginal rights were affirmed in Section 35(1) of the Constitution Act,
1982. In Delgamuukw, the SCC says that "aboriginal rights fall along a
spectrum with respect to their degree of connection to the land" and that
aboriginal title is at one end of that spectrum. At the other end of that
spectrum are rights which involve practices, customs, and traditions which
are not tied to any specific tract of land, and in the middle are
site-specific rights to engage in a particular activity. Thus aboriginal
title is a form of aboriginal rights, and is protected by the Constitution.
The question surrounding the admissibility of oral history as evidence and
the weight it should receive in relation to more conventional forms of
evidence was one of the primary reasons for the SCC agreeing to accept the
appeal case. In Delgamuukw the Supreme Court asserted that in
aboriginal-rights cases oral history must not be systematically rejected
nor undervalued as a result of its nature as hearsay evidence. If such a
categorical treatment was allowed, this would place an insurmountable
obstacle in the way of proving aboriginal title for most aboriginal groups,
who did not have written records at the time the Crown asserted its
sovereignty over the territory in 1846. Previously, oral histories had only
been allowed as evidence to confirm documentary evidence but was not given
any independent weight. The Court has decided that the laws of evidence
must be adapted in these cases to accommodate oral histories and place them
on an equal footing with documentary evidence, as warranted after careful
evaluation on a case-by-case basis.
The Nature of Aboriginal Title
This is seen as the most important aspect of the Delgamuukw decision.
Previous Court rulings have avoided trying to provide a detailed
description of aboriginal title, but in Delgamuukw the SCC put considerable
effort and detail into this part of the decision. Aboriginal title is
described as a right in land which belongs to a class of its own, and which
has three distinctive dimensions.
First, aboriginal title is inalienable to third parties, and "cannot be
transferred, sold or surrendered to anyone other than the Crown."
Second, aboriginal title "arises from the prior occupation of Canada by
aboriginal peoples," that is, prior to the assertion of British
sovereignty. Aboriginal title does not depend for its establishment upon
the Royal Proclamation of 1763 nor is it a grant from the Crown. It
pre-existed the Crown's interest in the land.
Third, aboriginal title is held communally and cannot be held by individual
aboriginal persons. It is a collective right held by all members of an
aboriginal nation, and any decisions made with respect to that land must be
made by that community. Several ramifications may arise from this. The
characteristic of communal decision making may cast doubt on the validity
of historic transfers of land where those signing the treaties may not have
had the consent of the whole community to do so. Communal decision making
in regard to the land may also provide an internal structure upon which to
build the broader organization of aboriginal self-government.
The nature of aboriginal title, then, consists in its inalienability to
anyone but the Crown, its source based on historic occupation, and its
right as a collective or communal interest. The SCC elaborates even further
on aboriginal title by defining what it consists of. It includes the right
to exclusive use and occupation of the land for a variety of purposes (both
traditional and modern), and those uses must not be irreconcilable with the
nature of the group's attachment to the land.
This characterization of aboriginal title goes beyond all previous Court
decisions on this subject, which generally limited aboriginal interest in
land to a right to use it for traditional cultural practices. Courts did
not go so far as to include any right of ownership of the land, and did not
allow for non-traditional or commercial exploitation. The SCC in its
Delgamuukw decision not only declared aboriginal title to be a form of
communal ownership of the land with a right to exclude other users, but
also stated that this title includes mineral rights and the right to engage
in modern commercial exploitation of the natural resources on that land.
The one limitation to this range of uses is that any such activity or use
must not prevent the continuity of the relationship of an aboriginal
community with its land.
For example, aboriginal-title land that was traditionally occupied as a
hunting ground could not be converted into a strip mine, which would
destroy its value for such a use, nor could special ceremonial or cultural
sites be converted into parking lots. The values for which land receives
the status of aboriginal title must not be destroyed through its use.
Finally, if an aboriginal group wishes to use some of its lands in a way
which aboriginal title does not permit, then the land must be surrendered
to the Crown in order to remove aboriginal title on the land before such a
use can occur.
The Test for Proving Aboriginal Title
The test for proving that aboriginal title exists contains three elements
which revolve around occupation and use. It is in this context that the
admissibility of oral history as evidence becomes so important, since
archaeological evidence is scanty or non-existent in many cases and
documentary records were unknown before contact.
First, the aboriginal group asserting a claim to aboriginal title must show
that they occupied the land in question prior to the date on which the
Crown asserted sovereignty over that land. In British Columbia this date is
the year 1846, and is more recent than the time of first contact. This
distinction is important because the time for determining aboriginal rights
is the time of first contact, while the time for identifying aboriginal
title is the time at which the Crown asserted sovereignty.
Second, if present occupation of the land is relied upon as the basis for
proving that the land was occupied before 1846, then there must be
continuity in that occupation between pre-sovereignty and the present.
There is some flexibility in the continuity requirement, with the intent
being that the connection between the people and the land has been
substantially maintained. This leaves some room for justifiable gaps in
occupation, such as might have occurred as a result of the encroachments of
Third, at the time of sovereignty the aboriginal occupation must have been
exclusive. This flows from the nature of aboriginal title which involves
the exclusive use and occupation of the land. The SCC also allowed room for
overlapping claims, in the form of shared exclusivity, where two
neighbouring aboriginal groups may have jointly occupied some land, but
excluded all others.
The Infringement of Aboriginal Title
While the SCC defined the nature and content of aboriginal title in
Delgamuukw, it also affirmed that aboriginal title is not absolute, and
thus may be infringed by both the federal and provincial governments. Ho
wever, any infringement of aboriginal title must pass a test of
justification, in two parts.
First, the infringement "must be in furtherance of a legislative objective
that is compelling and substantial." Although we are familiar with the
common objectives of conservation and environmental protection, the SCC
expanded this list of examples to include the development of agriculture,
forestry, mining, hydroelectric power, infrastructure, general economic
development of the interior of BC, and the settlement of foreign
populations to support these aims. These kinds of objectives may in general
justify infringement of aboriginal title, but particular measures or
government acts would have to be examined on a case-by-case basis.
Second, the infringement must be consistent with the special fiduciary
relationship between the Crown and aboriginal peoples. This may take the
form of giving first priority to aboriginal interests, or accommodating the
participation of aboriginal people in the exploitation of a resource, or
lowering barriers to participation by aboriginal people in the exploitation
of a resource. In addition, there is a duty of meaningful consultation
with, and in some cases (such as hunting and fishing regulations) consent
of, aboriginal groups whose rights under title are being infringed. That
consultation must be in good faith and must intend to substantially address
their concerns. The economic aspect of aboriginal title means that fair
compensation will be required when aboriginal title is infringed.
The Extinguishment of Aboriginal Title
Aboriginal title is now protected under Section 35(1) of the Constitution
Act of 1982, and extinguishment of aboriginal title is considered to be a
form of infringement of that title. Therefore, extinguishment of aboriginal
title by a legislative act of the federal government would have to meet the
test for infringement described above; it would require the consent of the
aboriginal group, and fair compensation would have to be part of the
deliberations. The Court also made it clear that provincial laws cannot now
and never could extinguish aboriginal rights or title.
To summarize the importance of the Delgamuukw case the following points can
In aboriginal-rights cases, oral history must not be systematically
Aboriginal title is a right in the land itself although not an absolute
right, and includes the right to exclusive use and occupation, derives from
pre-sovereignty occupation, is a collective right, and is inalienable
except to the Crown.
Aboriginal title includes the right of use for a variety of both
traditional and modern purposes, includes mineral rights, and its use must
not be irreconcilable with the aboriginal people's attachment to the land.
Proof of aboriginal title requires exclusive, pre-sovereignty occupation
and continuity of occupation between pre-sovereignty and the present.
Infringement of aboriginal title may occur by both federal and provincial
governments, but must be for a compelling and substantive legislative
objective, must be consistent with the special fiduciary relationship
between the Crown and aboriginal peoples, and must include meaningful
consultation with aboriginal people.
Extinguishment of aboriginal title can only take place as a result of
federal legislation, it must have the consent of the aboriginal people, and
fair compensation must be included.
Now that we have a general understanding of the Delgamuukw case, we can
have a more informed look at the BC First Nations Statement to Ministers.
The following are asserted to be the fundamental principles for a new
relationship between FNs and the Crown.
Aboriginal title applies to all of BC, as confirmed by the Delgamuukw
Aboriginal rights on the land approximate the equivalent of jurisdiction.
There will be NO EXTINGUISHMENT of aboriginal title or rights.
Government alienation of lands and resources must be suspended until
informed consent of FNs is obtained.
Province-wide, legally binding Interim Measures must be agreed upon until
treaties are negotiated.
The continuation of their relationship to their lands is the only
acceptable limit to FNs' use of their lands and resources.
Infringement on aboriginal rights and title requires fair compensation
(past, present, & future).
Want fair agreements to remove uncertainty for neighbours and business
Want good-faith negotiations about sharing and coexistence.
The First Nations state that it is not their intention to destroy the
provincial economy but rather to assume their rightful place as full
participants in the economy and future of the province. Perhaps the issue
of most immediate concern to governments and third parties in this
Statement is the call for an interim freeze on any further alienation of
Crown land and resources until province-wide interim-measures agreements
can be negotiated. Resource industries would view this as a direct threat
to their viability, and the provincial government would consequently view
it as a threat to industry employment.
Rather than being presented for an assessment of its merits, the FNs
Statement to Ministers is included here to show their perspective on the
meaning of the Delgamuukw decision. No such comprehensive statement has
been issued by either the provincial or federal governments, although a few
general comments have been made. The provincial government:
Has indicated that it will obey the law, although the interpretation and
application of the law have yet to be determined.
Prefers negotiation to litigation, but will not negotiate with an
aboriginal group which chooses to litigate.
Will make an effort to redesign the negotiation process to simplify and
streamline some of the regulatory environment and some of the consultation
so that economic development can continue.
Will examine staffing levels and financial resources committed to the
process with a view to increasing them.
Will back decisions made by line ministries.
Has most recently redoubled its efforts to reach a timely conclusion in the
negotiations for a treaty with the Nisga'a Nation.
Some non-governmental opinions have been expressed. One such opinion has
come from a Vancouver-based legal firm which deals particularly with
forest-sector clients. In regard to forest operations, the following points
Aboriginal title, while confirmed in principle, must still be proven in
Court by each aboriginal group; not a very likely scenario.
Forestry is a justifiable infringement of aboriginal title.
There is no set standard of consultation; this will require further case
Aboriginal consent is not specifically required for forestry operations to
Many difficult questions remain unanswered, and await further litigation.
These include the nature of the rights held, the degree of consultation
required to infringe, and the amount of compensation required.
Cumbersome forestry approval processes will likely slow down even more.
While full consultation with aboriginal groups when infringing any
aboriginal rights would be prudent, few cases would require consent for
No change in the ability of an aboriginal group to obtain an injunction to
stop development on its traditional territory.
Another, rather alarmist, interpretation of Delgamuukw was delivered to the
Vancouver Board of Trade, where the decision of the SCC was characterized
as creating the most serious state of crisis in the province's history in
regard to provincial sovereignty, as lacking in proper legal foundation,
and as ruining the provincial land claims process. The speaker's points
included these grim assessments:
Crown ownership of the land mass of BC has been drastically undermined.
Province's ability to make land resource decisions has been seriously
Aboriginal groups have been given special status in legal proceedings in
regard to rules of evidence and aboriginal perspective.
Aboriginal title has been made superior to other forms of land tenure, and
can only be infringed when rigid test conditions are met and compensation
The SCC failed to confirm that lawmaking authority rests solely with
Parliament or provincial legislatures.
The speaker's proposed remedies for all these defects are:
To immediately replace the BC treaty process with a legislated solution,
such as was recently done in Australia with regard to its Aborigines. The
proposed federal statute would automatically extinguish aboriginal title on
all alienated (tenured) Crown land, past, present, and future, and would
pay compensation based on statutory criteria. There would be no limit or
hindrance on the province's authority to continue to infringe on the
remaining aboriginal-title lands.
That compensation would be the sole responsibility of the federal
Such a radical "final solution" would hold an appeal to certain segments of
our population, but the current political and social climate in Canada
would seem to preclude the possibility of its success.
The primary significance of the Delgamuukw decision appears to be in its
treatment of the nature and content of aboriginal title, how it is proved,
how it can be infringed, and how it can be extinguished. Translating this
decision into practical and specific situations has yet to be accomplished,
and, as shown by this brief review, there is a wide diversity of opinion in
this regard. Even so, is there anything which the environmental community
can take from this very important Court case? Yes, I think there is.
Most importantly for us is the stated intention of many of the First
Nations to continue to negotiate rather than return to the Courts. When the
litigation route is chosen, we are essentially frozen out of the process,
and have no opportunity to affect the outcome. The legal route is a bit of
a crap shoot, since there is usually a winner and a loser, and there is no
way of knowing ahead of time which way the decision will go. The Delgamuukw
decision took nearly a quarter of a century to make its way through three
levels of the legal system. Can our natural environment survive another
quarter century in tact while further legal cases wind their way through
these complex maneuvers? I fear not. As long as negotiations are
proceeding, we will have an opportunity to be involved, and we will have an
opportunity to build better relationships with the First Nations
Another important aspect for us is the apparent boost in the strength of
the bargaining position of First Nations in their attempts to gain more
control over their lives, including their cultures, their traditional
lands, and their aspirations for the future. There is already a strong
aboriginal cultural revival happening in BC, and some aboriginal groups
have never lost their cultural traditions and pride but only recently have
been able to show them in a public way after decades of repression. The
Delgamuukw decision should help to support this process. With a
strengthened aboriginal hand at the negotiating table, governments and
corporations will be trying harder to reach settlements which truly
recognize and accommodate First Nations interests, which in many ways we
Some perceive a threat to the natural environment in having control of some
land-use decision making pass into the hands of First Nations from the
authority of provincial ministries and their corporate clients. Some
aboriginal groups do not currently appear to have the capacity to take on
such responsibilities. Well, judging by the past and present record of
government / industry performance in "managing for all values" and
protecting ecosystem integrity, perhaps it is time to cooperate and work
with First Nations in order to achieve the healthy environment and healthy
communities that we all desire.
Finally, what we can take from Delgamuukw is some satisfaction and
confidence that we are still a just society, that our highest Court in the
land recognizes that we the people want done what is right. We want equity
and fairness, especially for those who have been the undeserving victims
for over a century, of injustice, of might-makes-right politics, of
double-dealing and deceit and outright theft, even if the price may be
great. We have to be willing to pay it, or we do not deserve to be called
an honourable people.
Davis & Company Barristers & Solicitors - Forestry Bulletin February 1998
First Nations Summit - Statement to Ministers, January 31, 1998
Melvin Smith, QC - speech to Vancouver Board of Trade, Feb. 10, 1998
Pacific Business and Law Institute conference, Feb. 12-13, 1998: Papers
Graham Garton, QC - Delgamuukw: The Supreme Court Makes Oral History
Brian Slattery - The Definition and Proof of Aboriginal Title
Denis de Keruzec - The SCC Decision in Delgamuukw
Louise Mandell, QC - The Delgamuukw Decision
Pape & Salter Barristers & Solicitors - Delgamuukw Summary, January 09,
Premier Clark & Minister Cashore addressing TNAC, Feb. 02, 1998
SCC Delgamuukw v. British Columbia, December 11, 1997
NANOOSE CONVERSION CAMPAIGN - Email: firstname.lastname@example.org
World-Wide Web: TO BE ANNOUNCED
STOP NUCLEAR SUBMARINE WEAPONS TESTS IN GEORGIA STRAIT
The entire AOH site is optimized to look best in Firefox® 3 on a widescreen monitor (1440x900 or better).
Site design & layout copyright © 1986- AOH
We do not send spam. If you have received spam bearing an artofhacking.com email address, please forward it with full headers to email@example.com.