Delgamuukw v British Columbia facts for kids
Quick facts for kids Delgamuukw v British Columbia |
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| Hearing: June 16, 17, 1997 Judgment: December 11, 1997 |
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| Full case name | Delgamuukw, also known as Earl Muldoe, suing on his own behalf and on behalf of all the members of the Houses of Delgamuukw and Haaxw (and others) v Her Majesty The Queen in Right of the Province of British Columbia and The Attorney General of Canada |
| Citations | [1997] 3 SCR 1010 |
| Docket No. | 23799 |
| Ruling | Appeal allowed in part, cross appeal dismissed. |
| Court membership | |
| Chief Justice: Antonio Lamer Puisne Justices: Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major |
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| Reasons given | |
| Majority | Lamer CJ (paras 1-186), joined by Cory and Major JJ |
| Concurrence | McLachlin J (para 209) |
| Concurrence | La Forest J (paras 187-208), joined by L'Heureux-Dubé J |
| Iacobucci, Gonthier, and Sopinka JJ took no part in the consideration or decision of the case. | |
Delgamuukw v British Columbia is a very important decision by the Supreme Court of Canada. It was the first time the Court fully explained what Aboriginal title means in Canada. Aboriginal title is a special kind of right that Indigenous peoples have to their traditional lands.
The Gitxsan and Wet’suwet’en peoples from northwest British Columbia claimed Aboriginal title over a huge area (58,000 square kilometers). They also claimed the right to govern themselves on this land. They lost their case at the first trial. But the Supreme Court of Canada said there were mistakes in how the trial was handled. So, they ordered a new trial.
In this decision, the Court explained what Aboriginal title is and how it is protected under Section 35 of the Constitution Act, 1982. They also set out how Indigenous groups can prove they have Aboriginal title. The decision also made it clear how the government can justify limiting (or "infringing") Aboriginal title. This case is also important because it showed that courts must treat oral histories as important evidence.
Even though a new trial was ordered, the ideas from Delgamuukw are still very important. They were later confirmed in another big case, Tsilhqot'in Nation v British Columbia in 2014. The new trial for Delgamuukw has not happened yet.
Contents
Why Was the Delgamuukw Case Important?
The Delgamuukw case was a major step for Indigenous rights in Canada. It helped define what Aboriginal title means. It also showed how courts should listen to and respect Indigenous oral histories.
What Led to the Delgamuukw Case?
The Gitxsan and Wet’suwet’en peoples had been trying to get their land rights and self-government recognized for a long time. This started when Europeans first settled on their traditional lands in the 1800s.
In 1977, the Gitxsan officially declared their land claim to the Canadian government. But British Columbia refused to join the talks. By 1984, British Columbia started allowing logging on Gitxsan and Wet’suwet’en territory without their permission. Because of this, 35 Gitxsan and 13 Wet’suwet’en hereditary chiefs filed a lawsuit in the British Columbia Supreme Court on October 24, 1984.
How Courts Understood Aboriginal Title Before Delgamuukw
Before Delgamuukw, courts had started to recognize that Indigenous peoples had special rights to their land. These rights were not just from treaties or laws.
In the 1973 case Calder v British Columbia (AG), the Supreme Court said that Aboriginal title came from Indigenous peoples historically living on and using their traditional lands. It did not depend on treaties or government orders.
[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...
In another case, Guerin v The Queen, the Court called Aboriginal title a sui generis right. This means it's a unique type of right, different from other property laws. Before Delgamuukw, no Canadian court had explained in detail what Aboriginal title truly meant.
Who Was Delgamuukw?
The person named 'Delgamuukw' was born Earl Muldoe in 1936. He was a Gitxsan Indigenous rights leader. He was one of the Hereditary Chiefs for the Wet’suwet’en and Gitxsan nations. For the court case, his name was changed to 'Earl Muldoe'. He was also recognized for his art and paintings. Delgamuukw passed away in 2022.
The Case in British Columbia Courts
What Did the Gitxsan and Wet’suwet’en Claim?
In 1984, the Gitxsan and Wet’suwet’en hereditary chiefs claimed Aboriginal title and jurisdiction (the right to govern) over 58,000 square kilometers of land. They also asked for money for land that had already been taken. Delgamuukw (Earl Muldoe) was a Gitxsan claimant, and Gisday’wa (Alfred Joseph) represented the Wet’suwet’en. The idea of claiming jurisdiction was new. If they had won that part, Indigenous laws might have been stronger than provincial laws in some cases.
British Columbia argued that the Indigenous groups had no rights to the land. They said any claim for money should be against the federal government, not the province.
The First Trial and Its Outcome (1991)
The trial was very long, lasting 374 days from 1987 to 1990. It took place in Vancouver and Smithers, British Columbia.
The Gitxsan and Wet’suwet’en used their oral histories as evidence. These stories showed their deep connection to the land over many generations. Sixty-one witnesses shared their knowledge, often in their own languages. Some sang ceremonial songs or described important family histories (adaawḵ) and trails (kungax). This knowledge was even used to create maps.
Chief Justice Allan McEachern made his decision on March 8, 1991. He rejected the claims for Aboriginal title, jurisdiction, and Aboriginal rights. He said that any Aboriginal rights had been "extinguished" (meaning they no longer existed). However, he did say that the government had a duty to allow Indigenous people to use unoccupied Crown land for survival. He also rejected British Columbia's counterclaims.
This decision was criticized for how it treated the oral evidence and for its tone. Chief Justice McEachern described the pre-contact life of the Gitxsan and Wet’suwet’en as "nasty, brutish, and short." He did not fully accept their oral traditions as reliable history. The Canadian Anthropology Society said his judgment showed "ethnocentric bias" and a belief that white society was superior. The Supreme Court later said that courts must not undervalue Indigenous evidence just because it doesn't fit typical court standards.
The British Columbia Court of Appeal (1993)
The Gitxsan and Wet’suwet’en appealed the decision. By this time, the British Columbia government had changed. The new government no longer argued that Aboriginal rights had been extinguished.
On June 25, 1993, the British Columbia Court of Appeal unanimously disagreed with Justice McEachern. They said that the plaintiffs' Aboriginal rights had not been extinguished. The Court of Appeal sent the case back to trial to figure out what those Aboriginal rights meant.
The Supreme Court of Canada Decision
In 1994, both sides asked the Supreme Court of Canada to hear the case. They paused the case to try to reach a treaty agreement, but negotiations failed. So, the lawsuit continued.
The Supreme Court heard the appeal on June 16 and 17, 1997. They announced their decision on December 11, 1997. Chief Justice Antonio Lamer wrote the main opinion, which most judges agreed with.
The Court decided that the first trial judge made a mistake by combining all the individual claims into just two group claims. This mistake was big enough to require a new trial. Even though much of the decision was technically "obiter dicta" (meaning it wasn't strictly necessary for the ruling), its ideas are still very important. They were later confirmed in the Tsilhqot'in Nation case.
The Supreme Court also found that the trial judge's findings were wrong because he did not properly consider the oral histories.
The laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.
This means courts must treat oral histories with the same respect as written documents.
What is Aboriginal Title?
Chief Justice Lamer explained what Aboriginal title means. He said it includes:
- The right to use and live on the land exclusively for many different purposes. These uses don't have to be part of old traditions.
- But, these uses must not go against the group's connection to the land. For example, if a group's connection to the land is based on hunting, they shouldn't destroy all the hunting grounds.
The Court said Aboriginal title is a unique right that comes from Indigenous peoples living on the land before Canada was formed. It's not the same as regular land ownership. The main idea is to keep the special relationship between an Indigenous community and their land, both now and in the future.
The Court also explained how to prove Aboriginal title:
- The land must have been occupied before the government claimed ownership.
- If current occupation is used as proof, there must be a clear link between past and present occupation.
- At the time the government claimed ownership, the occupation must have been exclusive (meaning the group controlled the land).
When Can Aboriginal Title Be Limited?
Like other Aboriginal rights, Aboriginal title can sometimes be limited by the government. The Court explained how to decide if such a limit is fair.
The government can limit Aboriginal title for "compelling and substantial" reasons. These reasons can include:
- Developing farming, forestry, mining, and hydroelectric power.
- General economic development.
- Protecting the environment or endangered species.
- Building roads and other important structures.
- Settling new populations.
If the government limits Aboriginal title, it must also meet two conditions:
- It has a duty to consult with the Indigenous group. The more serious the impact, the more consultation is needed.
- It must provide fair compensation to the Indigenous group.
Self-Government and Provincial Power
The Court said there wasn't enough evidence in the trial to decide on the right to self-government.
The Court also ruled that provinces do not have the power to extinguish (end) Aboriginal rights. This is because the federal government, not the provinces, is responsible for Indigenous affairs.
Encouragement to Negotiate
Both the majority and concurring judges ended their decisions by encouraging all parties to negotiate agreements. They said that the government has a moral duty to negotiate in good faith. The goal is to bring together the long history of Indigenous societies with the authority of the Canadian government.
What Happened After Delgamuukw?
The ideas from Delgamuukw were later confirmed and explained further in the Tsilhqot'in Nation case in 2014. In that case, the Court said that land with Aboriginal title cannot be sold except to the Crown. It also cannot be used in ways that would prevent future generations from benefiting from it.
The new trial ordered in Delgamuukw has never happened, so the original land claim is still not fully settled. After the decision, British Columbia started some temporary measures to share economic benefits from resource development in land-claim areas.
Delgamuukw has also been part of discussions around recent events, like the 2020 Canadian pipeline and railway protests. These protests supported Wet’suwet’en hereditary chiefs who opposed a pipeline being built through their traditional territory.
See Also
