This Day in Supreme Court of Canada History: The 1997 Delgamuukw Case on Aboriginal Title

Today marks the 10th anniversary of the historic Supreme Court of Canada decision on aboriginal rights known as Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

For the first time, the Court directly addressed the issue of aboriginal title.

The Gitxsan Nation and the Wet’suwet’en Nation in British Columbia had started a lawsuit in 1984. Their claim covered 133 individual territories, amounting to 58,000 square kilometres of the northwestern part of their province. They claimed both ownership of the land and jurisdiction.

The Supreme Court did not rule as to whether the Gitxsan and Wet’suwet’en have aboriginal title to the lands they claimed. The court said that this issue could not be decided without a new trial.

But the decision confirmed that aboriginal title is a right to the land itself — not just the right to hunt, fish or gather — and that when dealing with Crown land, the government must consult with and may have to compensate First Nations whose rights are affected. Furthermore, aboriginal title has the additional protection of being a constitutional right.

The Osgoode Hall Law School blog The Court has published an article to mark the case's anniversary. Entitled The Anniversary of Delgamuukw v. The Queen: Two Legacies, it is written by Peter R. Grant, who acted as lead counsel for the Gitxsan and Wet’suwet’en chiefs.

Further analysis of the decision can be found here:

• A Community Guide to Delgamuukw (Delgamuukw Gisday'wa National Process - extensive collection of resources relating to the Delgamuukw decision designed for First Nations): "On December 11, 1997 the Supreme Court of Canada released its decision in Delgamuukw v. British Columbia. The decision marked the first time that the Supreme Court had ruled that the concept of Aboriginal title existed (...) But what was the essence of what the court said? The Supreme Court laid out a number of principles relating to the following issues: Use of oral history to prove Aboriginal title; The test for proving Aboriginal title; The content of Aboriginal title; Government's ability to infringe Aboriginal title; The province's ability to extinguish Aboriginal title; The governments' duty in negotiations. Let's look at these one by one. "
• Aboriginal Title: The Supreme Court of Canada Decision in Delgamuukw v. British Columbia (Library of Parliament, 2000): "In December 1997, the Supreme Court of Canada issued a groundbreaking ruling containing its first definitive statement on the content of Aboriginal title in Canada. The decision in Delgamuukw v. British Columbia also describes the scope of protection afforded Aboriginal title under subsection 35(1) of the Constitution Act, 1982; defines how Aboriginal title may be proved; and outlines the justification test for infringements of Aboriginal title. This paper provides a summary review of selected noteworthy findings in the Supreme Court decision on Aboriginal title. The review is preceded by background information on common law Aboriginal title and the constitutionalization of Aboriginal rights by subsection 35(1) of the Constitution Act, 1982, concepts that meet in the Delgamuukw ruling. The prior judgments of the British Columbia courts are also briefly canvassed."