For this week’s reading, we propose a selection from SCC (1997) Delgamuukw v. British Columbia, a landmark decision that, although obiter dicta (that is, may be a guide future decisions, but does does not set legal precedent itself), has been influential in subsequent cases (notably, Tsilhquot’in Nation v. British Columbia). The decision outlined the content of Aboriginal title, as well as if and how Aboriginal title and other rights can be extinguished under Canadian law. It also made explicit provisions for accepting oral history, under certain circumstances, as evidence in Canadian Courts. The decision was in response to an appeal from the hereditary leaders of the Gitxsan and Wet’suwet’en nations and cross-appeal from British Columbia in an ongoing land claims litigation.
We encourage you to come next session with a question about the text, or a passage that you found difficult or surprising and would like to discuss with the group. You might also consider reading with a few questions in mind. For example: How can what we learned about governance last week be applied to this text? What do title and rights mean, according to the court? How does the court use the word sovereignty?
One very brief text you may want to read before diving in is s. 35 of the Constitution Act, 1982, which reads:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.*
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.*
*Note: 35(3) and 35(4) were added in 1983.
Notes on The Reading:
Because this is a long document, we have provided short summaries of some of the central facts, and a number of selections, organized into bulleted lists below. We will be focusing on the bolded selections below; the italicized selections are sections that you may find helpful in contextualizing or deepening your understanding of the decision. In all cases, selections are listed by paragraph number (¶) and by the PDF page numbers (pp.).
Summaries and Selections:
The original trial before the Chief Justice McEachern of the Supreme Court of British Columbia began in 1984, after negotiations between the hereditary leaders and the government of British Columbia had failed to produce a solution to ongoing land disputes. In this trial, the hereditary leaders made separate jurisdictional and ownership claims to a total of 58 000 square kilometres of land (133 separate territories claimed by 71 Houses). B.C. argued that Gitxsan and Wet’suwet’en had no interest or right in the land at all. Chief Justice McEachern of the Supreme Court of British Columbia delivered his decision in 1991, siding with British Columbia and dismissing the claims entirely. This included the dismissal of the original claims to ownership and jurisdiction, and the dismissal of possible claims to Aboriginal title. This ruling included a stipulation that, while “activities… carried on at the time of contact,” which he defined, essentially, as sustenance practices, would be protected as Aboriginal rights (¶ 22) all Aboriginal title existed “at the pleasure of the crown” and that any Aboriginal title that the Gitxsan and Wet’suwet’en may have had, had been extinguished during early colonization (¶ 23).
- If you’re interested in the decision of the original trial, you may read: ¶15–30 (pp. 23–32); see ¶23–25 (pp. 28–30) for the summary of McEachern’s decision regarding Aboriginal title.
This was followed by an appeal by the Gitxsan and Wet’suwet’en. In the appeal, the Gitxsan and Wet’suwet’en claims were changed: now, instead of the claims being made on behalf of 71 separate Houses, the claimants were conglomerated into two groups: Gitxsan and Wet’suwet’en nations in general. Further, instead of claiming jurisdiction and ownership over the territory, the claimants (the representatives for Gitxsan and Wet’suwet’en) now based their case on a claim to Aboriginal title over the land. (This change of pleadings is the reason behind Issue A on Supreme Court of Canada Chief Justice Lamer’s list of issues, noted below.) On the other side, British Columbia argued that any Aboriginal rights or title that these groups may have had, had already been found to be extinguished in the lower court.
The appeals court ordered that the Wet’suwet’en, Gitxsan, and Government of British Columbia take two years to try to settle the case—essentially, to make a treaty agreement. When this was unsuccessful, litigation continued, and an appeal was made to the Supreme court of Canada to review the case.
Chief Justice Lamer divided his judgment into 5 central issues (¶72):
- Do the pleadings preclude the Court from entertaining claims for aboriginal title and government?
- What is the ability of this Court to interfere with the factual findings made by the trial judge?
- What is the content of aboriginal title, how is it protected by s. 35(1) of the Constitution Act, 1982, and what is required for its proof?
- Has a claim to self-government been made out by the appellants?
- Did the province have the power to extinguish aboriginal rights after 1871, either under its own jurisdiction or through operation of s. 88 of the Indian Act?
- You can read an overview and summary of the entire decision on these matters on pp. 1–13.
Before beginning his analysis of these issues, Lamer sets out some general principles. His first concern is about whether or not, and in which cases, an appellate court (such as the Supreme Court of Canada) can challenge the factual findings of a trial court judge. In this case, he decides that B.C. Supreme Court Chief Justice McEachern’s findings in 1991 did not benefit from the Supreme Court of Canada’s findings in 1997 case, R. v. Van der Peet, in which the nature of Aboriginal rights was more precisely defined in Canadian law. Chief Justice Lamer goes on to say that applying the principles of Van der Peet, which essentially define Aboriginal rights to be both common law doctrine as well as sui generis rights (that is, rights of a unique order), requires a unique approach that McEachern did not use.
- General Principles of the Supreme Court of Canada judgement ¶80–87 (pp. 56–60)
In the next sections, in which Lamer outlines Gitxsan and Wet’suwet’en oral history traditions that were brought as evidence in court, you’ll read Lamer pointing out time and again where McEachern erred in his decision, based primarily on the application of Van der Peet principles. These are, primarily, the errors upon which Lamer bases his decision that the case must go back to trial.
- Oral Histories:
- Gitxsan adaawak and Wet’suwet’en kungax ¶92–101 (pp. 62–67)
- Territorial Affadavits: ¶102–107 (pp. 67–70)
Having established that the case needs to go back to trial to reassess the facts of the case under the principles of Van der Peet, Lamer goes on to investigate the content of Aboriginal title, which was disputed between the claimants (Gitxsan and Wet’suwet’en) and respondent (B.C.) in the original trial. Saying that neither party correctly defined Aboriginal title, Lamer chooses a middle road between the two positions, laying out title in general, its “inherent limits,” its relation to and protection by s. 35(1) of the Constitution Act, a test for determining whether title exists, and finally a test for determining “legitimate” infringements of title.
- Introduction: ¶110–111 (p. 71)
- Aboriginal Title in Common Law
- General Features ¶112–115 (pp. 72–74)
- The Content of Aboriginal Title ¶116–118 (pp. 74–75)
- Inherent Limits ¶125–132 (pp. 79–82)
- Aboriginal Title Under s.35(1) of the Constitution Act, 1982: ¶133–134; ¶136–139 (pp. 82–86)
- Proof of Aboriginal Title ¶140–141; ¶143–159 (pp.86-97)
- Infringement of title ¶161–162; ¶165–169 (98–100; 102–104)
Then Lamer moves on to state that the SCC has found it cannot speak on the issue of self-government in Indigenous nations because this claim was not, in the upper court’s view, properly laid out in the trial court.
- Has a Claim to Self-Government Been Made Out? ¶170–171 (105–106)
Finally, Lamer turns to the question of extinguishment of rights—in particular, whether BC had the jurisdiction to extinguish Aboriginal rights, as it had argued it had. Lamer essentially argues that the province of BC did not have the power to extinguish Aboriginal rights, as it claimed to have had because a) only the federal government has the jurisdiction to extinguish rights; and b) he says that, regardless, any laws or agreements that do extinguish Aboriginal rights must clearly indicate the intent to extinguish those rights.
- Did the Province Have the Power to Extinguish Aboriginal Rights: ¶172–173; ¶176; ¶177–178; ¶180–181, ¶183 (pp. 106–114)
If you’re looking for more context on this decision, as well as a sensitive examination of some of the translations and mistranslations of central concepts that take place within it, we recommend looking at the introduction to David (2005) Hang Onto These Words, edited by Antonia Mills.