It has been 15 years since the Supreme Court of Canada released their decision in Delgamuukw v. British Columbia
. The decision was perhaps the most important Aboriginal rights decision in Canadian history, radically framing the notion of Aboriginal title and creating several legacies in common law
The case was first brought by the Gitxsan and Wet'suwet'en Nations of northern British Columbia in order to establish their ownership and jurisdiction of their traditional lands
. Having not made a treaty with the British Crown at any stage, there was a good chance that title to their entire territories - not simply the reserves the federal government had given them - was intact. They launched a a court case that featured huge amounts of oral testimony, drawing from the Gitxsan history called Adwaak
. In 1991, the BC Supreme Court in a shocking decision, ruled all of the oral evidence to be inadmissible and dismissed the case
(WARNING: large .pdf). The Gitxsan and Wetsuwet'en successfully appealed all the way to the Supreme Court of Canada and on December 11, 1997, the Court released its verdict, making legal gains for First Nations in the area of rights, the admissibility of oral history and the duty of governments to consult.
While the Court did not rule as to whether the Gitxsan and Wet'suwet'en had existing title to their traditional lands, it did say that Aboriginal title is an existing reality in Canadian law, and that it can be proven to exist. The Court ruled that Aboriginal title was not extinguished by the Crown simply claiming soverierngty over the land mass of British Columbia and it set out a test
that First Nations could use to prove their title.
The court ruled on the admissibility of oral evidence
, requiring courts to give significant consideration to the weight of oral evidence. Courts began taking taking oral history seriously
Since Delgamuukw, the requirement of governments to deeply consult with First Nations before engaging on activities within traditional territories has been strengthened
. The duty to consult in particular had significant affects in the ability of First Nations to affect activity in their territory. Several court cases subsequent to Delgamuukw further advanced and defined the nature of this right. The most progressive of these were brought by the Haida Nation in 2004
, and the Taku River Tlingit
. This aspect of the decision has important implications on resource development in British Columbia
and may have significant effects on the ability of Enbridge to build a pipeline through northern British Columbia.
Delgamuukw also had a significant impact on the treaty process in British Columbia, creating several alternative avenues for First Nation to advance their interests at the negotiations table and requiring the federal and provincial governments to more actively pursue reconciliation of Aboriginal rights and title through negotiations
. The subsequent decisions in Haida and Taku also had led the British Columbia government to change its stance towards reconciliation with First Nations and enter into an ambitious, if imperfect, new relationship
which has had important ongoing results in negotiations, land issues and social services.