THE DELGAMUUKW DECISION
- The Delgamuukw Court Action - a brief history
- Oral History
- Aboriginal Rights and Title
- Extinguishment
- Self-Government
- Test for Aboriginal Title
- Infringement of Aboriginal Title
The Delgamuukw decision on aboriginal title was handed down by the Supreme Court of Canada on Dec. 11, 1997. Some of the key points in the decision are listed in this article in language taken straight from the ruling. Interpretation of the Supreme Court judge’s words are provided for clarification and context – it will take future court decisions and negotiations to bring further definition to the meaning of aboriginal title.
All seven Supreme Court judges agreed that the Gitxsan
appeal of the original decision should be allowed in part, they dismissed
the cross-appeal by B.C. seeking extinguishment of aboriginal rights,
and the court determined that a retrial is required. The Chief Justice
at the time, Antonio Lamer, wrote the majority reasons, along with Justices
LaForest and McLachlin, from which the extracts below are taken.
Back to top
Oral History
“The
factual findings made at trial could not stand because the trial judge’s
treatment of the various kinds of oral histories did not satisfy the principles
laid down in R. v. Van der Peet…The trial judge refused to admit
or gave no independent weight to these oral histories and then concluded
that the appellants had not demonstrated the requisite degree of occupation
for “ownership”. Had the oral histories been correctly assessed,
the conclusions on these issues of fact might have been very different.”
This is an important ruling for future Delgamuukw action, and for all First Nations court cases, in that oral history will now be given as much weight as written evidence.
It is also a moral victory for Gitxsan
who revealed their adaawks during the original trial only to have them
swept aside and devalued by Judge Allan McEachern.
Back to top
Aboriginal rights and title
“The
exclusive right to use the land is not restricted to the right to engage
in activities which are aspects of aboriginal practices, customs and traditions
integral to the claimant group’s distinctive aboriginal culture.
Canadian jurisprudence on aboriginal title frames the “right to
occupy and possess” in broad terms and, significantly, is not qualified
by the restriction that use be tied to practice, custom or tradition…Finally,
aboriginal title encompasses mineral rights and land held pursuant to
aboriginal title should be capable of exploitation. Such a use is certainly
not a traditional one.”
The court is saying that when First Nations exert their rights under
aboriginal title on the land, it is not restricted to practices such as
hunting or berry picking, but applies to more modern uses of the resources
on the land like forestry and mining. This means that aboriginal title
is not “frozen in time”, applying only to those rights practiced
at the time of contact. In the past, this narrow definition has been used
to justify infringement on Gitxsan traditional
territories. For instance, the Ministry of Forests might issue a cutting
permit to a forest company on the stipulation that enough trees would
be left behind on a House territory so that animals would be present for
members to exercise their aboriginal right to hunt. Now that cutting permit
approval process may have to consider an aboriginal right to log as well.
Back to top
Extinguishment
“A
provincial law of general application cannot extinguish aboriginal rights…The
province had no authority to extinguish aboriginal rights either under
the Constitution Act, 1867 or by virtue of s. 88 of the Indian Act.”
Back to top
Self-government
“The errors of fact made by the trial judge, and the resultant
need for a new trial, made it impossible for this Court to determine whether
the claim to self-government had been made out.”
Back to top
Test for aboriginal title
“Aboriginal title is a right to the land itself…First, under the test for aboriginal title, the requirement that the land be integral to the distinctive culture of the claimants is subsumed by the requirement of occupancy. Second, whereas the time for the identification of aboriginal rights is the time of first contact, the time for identification of aboriginal title is the time at which the Crown asserted sovereignty over the land…In order to establish a claim to aboriginal title, the aboriginal group asserting the claim must establish that it occupied the lands in question at the time at which the Crown asserted sovereignty over the land subject to the title…Aboriginal title is a burden on the Crown’s underlying title...Under common law, the act of occupation or possession is sufficient to ground aboriginal title and it is not necessary to prove that the land was a distinctive or integral part of the aboriginal society before the arrival of Europeans. Finally, the date of sovereignty is more certain than the date of first contact.
This the “test” which the Supreme Court has laid down for
First Nations who want to prove aboriginal title through legal means.
It is the first time the proof for aboriginal title has been defined by
the highest court in the land. Under the test, the Supreme Court defined
aboriginal title (“right to the land itself”) and described
how First Nations must go about proving they have it. The test has been
made easier for the Gitxsan by this decision
in two ways: firstly, oral histories can be used to prove occupancy of
the land and they will be given as much weight as written records; secondly,
the time for proof of occupancy is when the Crown asserted sovereignty
over Gitxsan territory. Previous to the
decision, it was thought that occupancy might have had to be shown at
the time of first contact. For the Gitxsan,
first contact was in the 1820s, while the Crown asserted sovereignty sometime
in the late 1860s. In the 40 years between these two dates, there is a
wealth of written evidence, such as Hudson’s Bay Trading Company
ledgers, of Gitxsan occupancy of their
territories which will assist in proving aboriginal title.
Back to top
Infringement of aboriginal title
“Constitutionally recognized aboriginal rights are not absolute
and may be infringed by the federal and provincial governments if the
infringement (1) furthers a compelling and substantial legislative objective
and (2) is consistent with the special fiduciary relationship between
the Crown and the aboriginal peoples...In my opinion, 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. Whether a particular
measure or government act can be 
explained
by reference to one of those objectives, however, is ultimately a question
of fact that will have to be examined on a case-by-case basis…these
legislative objectives are subject to accommodation of the aboriginal
people’s interests…One aspect of accommodation of “aboriginal
title” entails notifying and consulting aboriginal peoples with
respect to the development of the affected territory…The nature
and scope of the duty of consultation will vary with the circumstances.
In occasional cases, when the breach is less serious or relatively minor,
it will be no more than a duty to discuss important decisions that will
be taken with respect to lands held pursuant to aboriginal title. Of course,
even in these rare cases when the minimum acceptable standard is consultation,
this consultation must be in good faith, and with the intention of substantially
addressing the concerns of the aboriginal peoples whose lands are at issue.
In most cases, it will be significantly deeper than mere consultation.
Some cases may even require the full consent of an aboriginal nation,
particularly when provinces enact hunting and fishing regulations in relation
to aboriginal lands…And third, lands held pursuant to aboriginal
title have an inescapable economic component which suggests that compensation
is relevant to the question of justification as well. Fair compensation
will ordinarily be required when aboriginal title is infringed…The
amount of compensation payable will vary with the nature of the particular
aboriginal title affected and with the nature and severity of the infringement
and the extent to which aboriginal interests were accommodated.”
The
Supreme Court judges ruled that there are times when aboriginal title
can be infringed upon, in other words ignored, but those cases must satisfy
a number of requirements. This is the part of the ruling that forestry
interests, such as the Council of Forest Industries (COFI), and mining
groups are using to justify further infringement. However, the decision
does say that there must be a “compelling and substantial legislative
objective” before the infringement occurs and the justification
for each infringement must first be examined on a case-by-case basis.
This may mean that a forest license cannot simply be granted to a company
because the province says it needs the stumpage revenue to fulfill legislative
objectives such as creating jobs. Attempting to justify infringement must
be on a case-by-case basis and may mean much more details and specifics
on the legislative objective at stake. If it is deemed that infringement
of an aboriginal title is justified, then consultation must occur with
the First Nation and this will be a huge step up from the consultation
process now practiced by the Ministry of Forests. If there is infringement
then compensation must occur. As the court noted, aboriginal title includes
such practices as forestry, so if plans by the Ministry of Forests include
issuing a forest license or cutting permit on a Gitxsan
House group’s territory, and if B.C. can prove infringement is justified,
then those House group members could be entitled to compensation.
Home •
Treaty Talks • News • Events
Calendar • Delgamuukw
Gitxsan
Businesses • Gitxsan
Chat • Who We Are • Contact
Us
Library • Links
• Site Map • Search
This site designed and produced by
Spark Design