15 years of Aboriginal title in Canadian courts
December 11, 2012 8:02 AM   Subscribe

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.
posted by salishsea (9 comments total) 23 users marked this as a favorite
Huge repercussions in Southern Ontario, too. The Haldimand Proclamation grants some now very populous areas to First Nations.
posted by scruss at 9:15 AM on December 11, 2012

Note that the trial judgement didn't rule that oral history evidence was inadmissible, it ruled that it should be given extremely low weight. While this is tantamount to ruling it inadmissible it isn't quite the same thing. The Ridington paper gets this point subtly wrong. That said, it's hard to overstate the importance of Delgamuukw, and this is a great post. (Source: I've been teaching Canadian constitutional and evidence law for years.)
posted by sfred at 9:40 AM on December 11, 2012 [1 favorite]

Of course ownership is by declaration. The First-Nations people just got there first. Our entire legal system is based on the tradition fallacy, because we don't have a better option.
posted by blue_beetle at 10:52 AM on December 11, 2012

Pronunciation reference:

Delgamuukw: DEL-ga-mook 1, or dell-gah-MOO-hk 2.
Wet'suwet'en: audio 0 Wet-SOO-wet-en 1, wit-So-wit-tain 2
Gitxsan: [Git](ksen) 0 GIT-san 1, 2
posted by zamboni at 11:19 AM on December 11, 2012 [3 favorites]

Great post. Thanks for this, salishsea!
posted by Catchfire at 11:27 AM on December 11, 2012

How should courts deal with a situation in which a tribe says "We own this land because we took it away from those guys over there"? It's my understanding that many titles actually do rest on claims like this, but what happens when "those guys" want their land back? Do we say "Sorry, but that's not how native title works"? Do we say that it's not a justiciable question and the court can't answer it? I don't think the doctrine of adverse possession would apply even if these events took place a long time ago: adverse possession only works if the property owner relinquished their rights, not if they were forcibly driven from their land and had no means of peaceful redress.
posted by Joe in Australia at 1:50 PM on December 11, 2012

Great post. As someone who grew up watching the Teme-Augama Anishnabe defend N'Daki Menan, their land, I find it hard to believe Delgamuukw was that long ago...
posted by docgonzo at 6:20 PM on December 11, 2012

This seems like a somewhat-good place to note:

Metis and "non-status Indians" are Indians under the Constitution, according to the Federal Court. It'll get appealed and we'll see what happens, but this is a good first step.
posted by Lemurrhea at 12:44 PM on January 9, 2013

« Older Oh this learning, what a thing it is!   |   Credit unions have surpassed BofA in Seattle Newer »

This thread has been archived and is closed to new comments