THE DELGAMUUKW COURT ACTION
– a brief history

The Delgamuukw court case is an attempt by the Gitxsan and Wet’suwet’en peoples to achieve recognition of ownership, jurisdiction and self-government of their traditional territories from the governments of Canada and B.C.
Hereditary chiefs from the Gitxsan and Wet’suwet’en nations have been willing to negotiate on these topics since Europeans first began settling on their traditional lands a little over 100 years ago. Successive provincial and federal governments rebuked all efforts by the Gitxsan to negotiate on ownership, leaving the hereditary chiefs to come up with strategies to force Crown representatives to the table. In the 18 years since filing of the land title action with the B.C. Supreme Court in 1984, these strategies have included direct action on the land, bilateral negotiations, treaty negotiations and court actions.

The plaintiffs in the Delgamuukw case were 35 Gitxsan and 13 Wet’suwet’en hereditary chiefs. The land title action was the longest running First Nations land claim court case in Canadian history. The trial before the B.C. Supreme Court began in 1987 and was unique in that Gitxsan and Wet’suwet’en elders took the stand to testify in their language about their distinctive culture and relationship to the land. In other similar trials, this evidence was provided secondhand through the eyes of non-Native “experts” such as anthropologists.

In the trial, the chiefs sought recognition of ownership and jurisdiction. B.C. and Canada counterclaimed the Gitxsan had no rights, title or interest in the territory. If there was evidence for a claim, said the province, it should be in the form of compensation from the federal government.

The trial judge, Allan McEachern, released his ruling on March 8, 1991. He dismissed most of the chief’s claims and declared that any aboriginal rights held by the Gitxsan or the Wet’suwet’en were extinguished by the colonial government of B.C. McEachern called the pre-colonization life of the Gitxsan “nasty, brutish, and short” because they had “no written language, no horses or wheeled vehicles...” The decision was widely criticized by First Nation leaders as being culturally biased and a UN report condemned McEachern’s ruling as ethnocentric.

The Gitxsan and Wet’suwet’en took the case to the B.C. Court of Appeal. On June 25, 1993, that court overturned the trial judge on extinguishment and clearly stated consultation with the Gitxsan had to take place before the government approved any activities that may affect Gitxsan aboriginal rights. On ownership and jurisdiction the Court of Appeal sided with the trial judge in a split (3-2) decision.

The Gitxsan appealed the Delgamuukw case to the Supreme Court of Canada in an attempt to wipe Judge McEachern’s racist findings from the record books and also to try to establish a new test by which the courts decide aboriginal title.

The Supreme Court of Canada heard the case June 16-17,1997. B.C. and Canada continued to argue against any form of ownership and still maintained Gitxsan and Wet’suwet’en aboriginal rights were extinguished more than 100 years ago despite the fact that these rights are protected in the 1982 Constitution Act.

The landmark Supreme Court of Canada decision was handed down Dec. 11, 1997. Many of the arguments the Gitxsan made were accepted by the judges, including the fact that the province had no authority to extinguish aboriginal rights and the necessity of creating a new test for aboriginal title (see The Delgamuukw Decision). On the matter of self-government, the SCC stated that so many errors were made by the trial judge that it was impossible to decide on the claim. It is now left up to the Gitxsan to decide whether to pursue the case through retrial, using the new test for aboriginal title set out in the decision. Meanwhile, other First Nations in B.C., across Canada and around the world are using the Delgamuukw decision to seek justice on aboriginal title through the courts and through negotiations.

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