Delgamuukw v British Columbia

By the 1970s, the courts had "begun to acknowledge the existence of Aboriginal legal rights in the land other than those provided for by treaty or statute."[13] In Calder v British Columbia (AG), the Supreme Court recognized that Aboriginal title to land was based in "historic occupation and possession" of their traditional territories and "does not depend on treaty, executive order or legislative enactment."[14][15]

[T]he fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means...

— Calder v British Columbia (AG)[14]

In Guerin v The Queen, the Court described Aboriginal title as a sui generis right, not found elsewhere in property law.[15] In Canadian Pacific Ltd v Paul, the Court elaborated, "it is more than the right to enjoyment and occupancy, although, … it is difficult to describe what more in traditional property law terminology."[16] In R v Adams, the Court said that Aboriginal title is a kind of Aboriginal right.[5][17]

Until Delgamuukw, no Canadian court had defined in detail what Aboriginal title means.[11] And, at the outset of this case in 1984, Section 35 of the Constitution Act, 1982 was relatively new. Courts had not yet given meaning to subsection (1): "The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed", although the meaning was fairly well developed by the time the case made it to the Supreme Court in 1997.

The defendant, born May 16, 1936, as 'Delgamuukw', served as a Gitxsan Indigenous rights leader, as one of the Hereditary Chiefs in the Office of the Hereditary Chiefs of the Wetʼsuwetʼen, and as a representative for the joint Tribal Council of the Gitxsan and Wet’suwet’en nations.[18][19] In 1997, for the purpose of the court proceedings, 'Delgamuukw', then 61, had his name anglicized as 'Earl Muldoe'. In 2010, Muldoe was also designated as a 'Companion of The Order of Canada' for his paintings and artistry. Delgamuukw died on January 3, 2022, at the age of 85.[20][21]

In 1984, Gitxsan and Wet’suwet’en hereditary chiefs claimed, on behalf of their Houses, unextinguished Aboriginal title and jurisdiction over territory in northwest British Columbia totalling 58,000 square kilometres, and compensation for land already alienated.[13][22][23] Delgamuukw (English name Earl Muldoe) was a claimant for the Gitxsan, while Gisday’wa (Alfred Joseph) was one of those representing the Wet’suwet’en.[3] The claim for jurisdiction was novel. If that claim were to have succeeded, Indigenous laws would prevail in the case of conflict with provincial law.[11] BC argued that the "plaintiffs had no right or interest in the land, and that their claim for compensation ought to be against the federal government."[13]

The trial took 374 days (318 days of evidence and 56 days of closing argument), spanning May 11, 1987, to June 30, 1990, in Vancouver and Smithers, British Columbia.[5][22][23]

The Gitxsan and Wet’suwet’en relied upon their oral histories as evidence about their historical relationship with the land.[24][23][22][25] Sixty-one witnesses gave evidence at trial, many in their own languages, using translators.[23] Some witnesses sang or described ceremonial songs and performance relating the adaawḵ (the personal bloodline histories)[26] of the Gitxsan and kungax (a song or songs about trails between territories)[23][27] of the Wet’suwet’en.[22][23] Some of this knowledge was translated into maps.[22]

The judgement from Chief Justice Allan McEachern was released on March 8, 1991. Contrary to legal precedents such as Calder v British Columbia (AG), Judge McEachern dismissed the plaintiffs' claims to Aboriginal title, jurisdiction (self-government), and Aboriginal rights in the territories.[13][23] Despite finding that Aboriginal rights of the Gitxsan and Wet’suwet’en had been extinguished, Chief Justice McEachern found that the Crown had made promises beginning in 1859 and 1860 that gave rise to a fiduciary duty: "to permit aboriginal people, but subject to the general law of the province, to use any unoccupied or vacant Crown land for subsistence purposes until such time as the land is dedicated to another purpose."[23] He also dismissed the province's counterclaims for a declaration that the Gitxsan and Wet’suwet’en have no right or interest in the territory and for a declaration that their only claim for compensation could be against Canada.[23]

This decision has been criticized for both its treatment of the oral evidence and for its tone.[13][4]^: 100 Chief Justice McEachern described pre-contact life of the Gitxsan and Wet’suwet’en as "nasty, brutish, and short."[23][4]^: 100[28] He didn't recognize pre-contact "institutions" and instead said that "they more likely acted as they did because of survival instincts."[23][28] He was "unable to accept adaawk, kungax and oral traditions as reliable bases for detailed history but they could confirm findings based on other admissible evidence."[23][29] He described the position of the Gitxsan and Wet’suwet’en as "idyllic" and "romantic".[27] The Canadian Anthropology Society said the judgement "gratuitously dismisses scientific evidence, is laced with ethnocentric bias and is rooted in the colonial belief that white society is inherently superior."[30][29] Chief Justice Lamer, writing for the majority at the Supreme Court of Canada, acknowledged that Chief Justice McEachern did not have the benefit of the reasons from R v Van der Peet, which says "courts must not undervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards [applied in other contexts]."

The Gitxsan and Wet’suwet’en appealed. In the time between the trial judgement and the appeal, the British Columbia government changed parties, from the Social Credit Party to the New Democratic Party. The new government abandoned the position taken at trial on the issue of extinguishment, so amici curiae were appointed to assist the court on that issue.[13][31]

On June 25, 1993, five members of the British Columbia Court of Appeal unanimously rejected Justice McEachern's ruling that all of the plaintiffs' Aboriginal rights had been extinguished.[13][31][5] The Court of Appeal ordered the case back to trial to determine the nature and scope of those Aboriginal rights. Two of the justices, in dissent, would have gone further to also allow the appeal on the issue of Aboriginal title and to send that question back to trial as well.[13][31][5]

Chief Justice Lamer summarized the content of Aboriginal title:

I have arrived at the conclusion that the content of aboriginal title can be summarized by two propositions: first, that aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group's attachment to that land.[5]^{: para 117}

The majority affirms that this is a sui generis right arising from the prior occupation of the land by Indigenous people;[33] it is not fee simple ownership. The inherent limit (that the protected uses not be irreconcilable with the nature of the group's attachment to the land) is derived from one of the purposes of Aboriginal title: maintaining "the relationship of an aboriginal community with its land here is that it applies not only to the past, but to the future as well."[5][33]

The majority places Aboriginal title on a spectrum alongside other Aboriginal rights:[5]^: 138

• practices, customs, and traditions integral to the group's distinctive culture, with little connection to a particular piece of land, which still lead to Aboriginal rights to those activities,
• activities that take place on and have an intimate connection with a particular piece of land, which might lead to site-specific Aboriginal rights, and
• Aboriginal title, which is right to the land itself, and which entails the right to a broad range of uses, only subject to the inherent limit against uses irreconcilable with the nature of the group's attachment to the land.[33]

The majority also lays out the test for proving Aboriginal title: "(i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive."[5]^{: para 143} That will be enough to demonstrate that the occupancy of the land is "sufficiently important to be of central significance to the culture of the claimants."

As with other Aboriginal rights, Aboriginal title can be infringed. The majority in Delgamuukw clarified how the justification test developed in R v Sparrow and modified in R v Gladstone applies when Aboriginal title is infringed.

The majority affirmed the broad characterization of compelling and substantial legislative objectives that might warrant an infringement: "legitimate government objectives also include the pursuit of economic and regional fairness and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups." It then goes further:

the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of Aboriginal title.[5]^{: para 165}

The second prong of the justification test asks whether the infringement is "consistent with the special fiduciary relationship between the Crown and aboriginal peoples." This fiduciary relationship gives rise to two additional components when Aboriginal title is infringed: the duty to consult (which varies with the degree of the infringement), and the requirement to provide fair compensation.[5]^{: paras 168, 169}

The court said that the trial did not yield sufficient evidence to give any opinion regarding the right to self-government.

The court held that the province does not have the power to extinguish Aboriginal rights, neither directly (because of Section 91(24) of the Constitution Act, 1867) nor indirectly through laws of general applicability (because they could not indicate clear and plain intent).

Both opinions concluded by encouraging all parties to pursue negotiated agreements through good faith negotiations.

[T]he Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Van der Peet to be a basic purpose of s. 35(1) -- “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”. [internal citations removed]