As the Supreme Court of Canada hears the arguments in the Tsilhqot’in case regarding Aboriginal title, we decided to look back at one of the major, watershed moments in Aboriginal legal history, the SCC’s ruling in Delgamuukw v. British Columbia [1997]. This ruling defined Aboriginal title and helped further the common law development of the duty to consult and accommodate.

In Delgamuukw, the SCC found that British Columbia had not extinguished Aboriginal title upon declaring sovereignty over the land and that Aboriginal groups still held title to undefined areas of the province.

The case itself was launched by the Gitxsan and Wet’suwet’en Nations occupying lands in northwestern B.C. The trial court lasted from 1987-1991 and $25 million in public funds were used by the end. Both the B.C. Supreme Court and the B.C. Court of Appeal ruled against the Gitxsan and Wet’suwet’en, stating that these societies were too primitive to have property laws and thus no Aboriginal right to the land existed.

The SCC overruled the lower courts and stated that Aboriginal title did in fact exist in B.C. It defined Aboriginal title as follows:

• Aboriginal title is a specific type of Aboriginal right that encompasses “the right to use the land held pursuant to that title for a variety of purposes.”
• Aboriginal title has an inherent economic aspect to it that must be acknowledged: that is, the Aboriginal group that holds title has the right to sustain their economy off of the land.
• Aboriginal title does not imply fee-simple ownership.
• Aboriginal title is a sui generis interest in the land. It is communally held and can only be surrendered to the Crown, not to any other interests.
• The Crown, through either provincial or federal governments, does have the right to infringe upon Aboriginal title for the purpose of economic development, as long as the Crown consults, and where necessary, accommodates the holders of Aboriginal title for the infringements.
• The Crown can infringe upon Aboriginal title in allowing and permitting resource development.

The ruling in Delgamuukw made clear that Aboriginal title is not an absolute right. That means that as long as there is adequate justification to do so, the government can infringe upon Aboriginal title, as long as the Aboriginal group in question is adequately consulted. The Crown, according to the SCC, must have a valid objective to legitimately infringe upon Aboriginal rights or title. Possible valid objectives include:

• Development of agriculture, forestry, mining and hydroelectric power
• The general economic development of the interior of B.C.
• Protection of the environment or endangered species
• The building of infrastructure
• The settlement of foreign populations to support these aims

Aboriginal groups in B.C. heralded this ruling as a victory; finally the courts in Canada recognized their title to land. However, governments and industry also saw this ruling as a victory. Yes, title was found to exist which opposed their original argument, but with the ruling they received a clear roadmap on how they could legally infringe upon Aboriginal rights and title in carrying out their duties.

It was not until the joint ruling on the Haida/Taku cases in 2004 that the SCC clarified the duties associated with Crown infringements on Aboriginal rights and title. Haida/Taku set out the initial rules for the Crown’s duty to consult and accommodate – a topic that will be discussed next in this blog series.

- Jessica Davies, Intermediate Advisor, Aboriginal and Stakeholder Engagement, Communica Vancouver

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