Delgamuukw v British Columbia

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Delgamuukw v British Columbia
Supreme Court of Canada
Hearing: June 16, 17, 1997
Judgment: December 11, 1997
Full case nameDelgamuukw, 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
RulingAppeal 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
Reasons given
MajorityLamer CJ (paras 1-186), joined by Cory and Major J.
Concur/dissentMcLachlin J (para 209)
Concur/dissentLa 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, [1997] 3 SCR 1010, also known as Delgamuukw v The Queen is a ruling by the Supreme Court of Canada that contains its "first definitive statement on the content of Aboriginal title in Canada." The ruling also described the "scope of protection afforded Aboriginal title under the Constitution Act, 1982", defined how a claimant can prove Aboriginal title, and clarified how the justification test from Sparrow applies when Aboriginal title is infringed.

The case is also important for its treatment of oral testimony as evidence of historic occupation.[1]


The Gitxsan and Wet'suwet'en land claim was the "longest running First Nations land claim court case in Canadian history".[2] Hereditary chiefs from the Gitxsan and Wet'suwet'en Hereditary Chiefs attempted to negotiate jurisdiction, recognition of ownership, and self-government since Europeans first began settling on their traditional lands in the 1800s. The Canadian federal government and the British Columbia provincial government "rebuked all efforts by the Gitxsan to negotiate on ownership."[2] In 1984, 35 Gitxsan and 13 Wet'suwet'en hereditary chiefs filed the land title action with the British Columbia Supreme Court. Since then, they used strategies including "direct action on the land, bilateral negotiations, treaty negotiations and court actions."[2]

Pre-Delgamuukw Definitions of Aboriginal Title[edit]

By the 1970s, the courts had "begun to acknowledge the existence of Aboriginal legal rights in the land other than those provided for by treaty or statute."[3] In 1973, when Frank Arthur Calder and the Nisga'a Nation Tribal Council with Thomas Berger as their counsel, won the landmark case, in which the Supreme Court of Canada in Calder v. British Columbia (Attorney General), it was the first time that Canadian law acknowledged that aboriginal title to land existed prior to the colonization of the continent and was not merely derived from statutory law.[4] The Calder 1973 decision, "ruled that ‘Indian title’ was a legal right, independent of any form of enactment, and rooted in Aboriginal peoples' historic ‘occupation, possession and use’ of traditional territories. As such, title existed at the time of first contact with Europeans, whether or not it was recognized by them."[3] In the SCC landmark case in 1984 Guerin v The Queen, the Court first stated that the government had a fiduciary duty towards the First Nations of Canada and establishing that Aboriginal title was a sui generis right.[5] In Canadian Pacific Ltd. v. Paul (1988) the SCC reiterated the "inescapable conclusion … that the Indian interest in land is truly sui generis [the only one of its kind]. It is more than the right to enjoyment and occupancy, although, … it is difficult to describe what more in traditional property law terminology."[3]

Constitution Act, 1982[edit]

Subsection 35 of the Constitution Act, 1982 "created a new legal framework for addressing longstanding Aboriginal claims, including claims to Aboriginal title." It was the responsibility of the courts to "determining the nature and scope" of Aboriginal rights.[3]

The British Columbia courts[edit]

The claim[edit]

In 1984, Gitksan and Wet'suwet'en hereditary chiefs claimed unextinguished Aboriginal title over territory in northwest British Columbia totalling 58,000 square kilometres.[3] BC argued that the "plaintiffs had no right or interest in the land, and that their claim for compensation ought to be against the federal government."[3] The Gitksan and Wet'suwet'en used their oral histories as principal evidence in the case.

The trial court: Justice McEachern's decision (1991)[edit]

During the trial elders testified in their own languages "about their distinctive culture and relationship to the land."[2] Previously, anthropologists or other expert witnesses had been called on behalf of Aboriginals.[2]

In his March 1991 "sweeping and highly controversial" ruling, Chief Justice McEachern of the Supreme Court of British Columbia "dismissing the plaintiffs' claims to Aboriginal title, self-government and Aboriginal rights in the territories at issue."[3] Justice Allan McEachern published his Reasons for Judgement in his 1991 394-page publication.[6]

Justice McEachern described 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.[2] He said that the "broad concepts embodied in oral tradition, did not conform to juridical definitions of truth,"[7] stating: "I am unable to accept adaawk, kungax and oral traditions as reliable bases for detailed history but they could confirm findings based on other admissible evidence."[7][8] Although these courtroom proceedings established the precedent of First Nations presenting their claims to land through the use of oral tradition, Justice McEachern ruled that oral tradition could not stand on its own as historical evidence. In order to bear an impact on the proceedings it must be supported by forms of evidence recognized by the court.[citation needed]

The Court held at paragraphs 74, 75 and 77 that, [74] "I reject the submission with respect to the substitution of aboriginal title and self-government for the original claims of ownership and jurisdiction … [75] The content of common law aboriginal title, for example, has not been authoritatively determined by this Court … [77] This defect in the pleadings prevents this Court from considering the merits of this appeal."[citation needed]

The relevance of the case for Aboriginal title derives from what the Chief Justice Lamer ruled in a dialogue from the Bench with counsel Bruce Clark appearing on a preliminary objection to the Court's territorial jurisdiction based upon the First Nation's unsurrendered territorial sovereignty. The Court Transcript finds the Chief Justice saying, "If you had decided to initiate or if you decide tomorrow morning to initiate in the Supreme Court of British Columbia an action for declaratory relief saying that the British Columbia courts have no jurisdiction, that is a different matter and you could be arguing to the judge that, well, this is an issue that has never been tried.… There is no doubt that it is a constitutional issue. … Is that all you have to say on the constitutional question?"[9]

The Crown of British Columbia insisted that all First Nations land rights in British Columbia were extinguished by the colonial government before it became part of Canada in 1871. Moreover, Chief Justice Allan McEachern ruled that Aboriginal rights in general existed at the "pleasure of the crown" and could thus be extinguished "whenever the intention of the Crown to do so is clear and plain." (In the Court of Appeal, the Province changed its position to argue that Aboriginal land rights had not been extinguished.) Under his reasoning, the Aboriginal title and Aboriginal right of self-government claimed by the plaintiffs had been erased over a century previously, and as such were precluded from qualifying as "existing" rights under subsection 35(1) of the Constitution Act, 1982. His ruling was seen by many as seriously at odds with Supreme Court of Canada rulings dealing with constitutional Aboriginal and treaty rights, and was also criticized for its apparent bias in both tone and analytic approach.[3]

Court of Appeal (1993)[edit]

In June 1993, five members of the British Columbia Court of Appeal unanimously rejected Justice McEachern's ruling of "blanket extinguishment" of all the plaintiffs' Aboriginal rights".[3]

An attempt to negotiate a treaty (1994–1996)[edit]

In March 1994, the Gitxsan and Wet'suwet'en and the Province of British Columbia were granted leave to appeal to the Supreme Court of Canada. However, they obtained an adjournment in order to pursue a treaty settlement instead. The province suspended those negotiations in February 1996 and the parties revived their litigation.[3]

Supreme Court of Canada[edit]

The appeal was heard at the Supreme Court of Canada on June 16 and 17, 1997. The six justices announced their unanimous decision on December 11, 1997.[3]

Chief Justice Lamer ordered a new trial while dismissing the province's cross-appeal.[3] He discouraged litigation and recommended negotiated settlements that "should also include other aboriginal nations which have a stake in the territory claimed."[3] He added that, "the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith."[3] These "[n]egotiated settlements "with good faith and give and take on all sides" would "achieve the reconciliation purpose of subsection 35"[3] of the Constitution Act, 1982.

The Library of Parliament's 1998 report described the decision in Delgamuukw v. British Columbia by the Supreme Court of Canada as a "groundbreaking ruling containing its first definitive statement on the content of Aboriginal title in Canada."[3] The ruling also described the "scope of protection afforded Aboriginal title under the Constitution Act, 1982" as well as defining "how Aboriginal title may be proved." It also outlined the "justification test for infringements of Aboriginal title."[3] [Notes 1][Notes 2]

The ruling also made important statements about the legitimacy of Indigenous oral history ruling.[10]:1069[11][Notes 3]

Subsequent influence and treatment[edit]

The Research Guide for Aboriginal Law in Canada at the University of Toronto described it as "the most definitive statement on the nature of aboriginal title in Canada."[12]

In Bruce Clark's 1999 publication, Justice in Paradise, he said that the case was improperly framed by the lawyers who filed the case and it decided nothing nor could it have decided anything.[13]

In A Fair Country, John Ralston Saul, philosopher, novelist and essayist, discussed the way in which First Nations' oral accounts of history related to the rights to property. Saul writes about the broader significance of the court's recognition of oral evidence as carrying as much or greater weight as written evidence, on Canadian society.[14]:72–75 Folkloric oral stories are being "wielded with all the bludgeoning force of competing written histories."[15]

The only legal difficulty with Saul's perception is that oral history is not relevant to the definition of the Aboriginal constitutional interest, that being determined by the paramountcy clause section 109 of the Constitution Act, 1867, as settled by the precedents St Catherine's Milling and Lumber Co. v. The Queen,[16] and Attorney General of Canada v. Attorney General of Ontario: In re Indian Claims,[17] Those cases held the Aboriginal constitutional "Interest" is paramount over the Crown's constitutional "Interest" until surrendered by treaty, that being the legal consequence of the treaty process in Canada.[citation needed]

In 2017, the twentieth anniversary of the case, CBC reported that this case set a precedent for "how treaty rights are understood in Canadian courts, affirming the recognition of oral testimony from Indigenous people."[1]


  1. ^ The Supreme Court made no decision on the land dispute, insisting that another trial was necessary. Specifically, [at paragraph 74 of the Court's decision] the Court held, "I reject the submission with respect to the substitution of aboriginal title and the self-government for the original claims of ownership and jurisdiction....[paragraph 75] The content of common law aboriginal title, for example, has not been authoritatively determined by this Court...[paragraph 77] This defect in the pleadings prevents this Court from considering the merits of this appeal."citation needed|date=February 2018
  2. ^ The legal significance of those passages is that the Aboriginal "Interest" within the meaning of section 109 of the Constitution Act, 1867, was not involved in the appeal. Section 109 is the section that says the Crown's Constitutional "Interest" is subject to the Aboriginal Constitutional "Interest" so long as the Aboriginal "Interest" has not been sold to the Crown by a valid treaty. It confirms that Aboriginal sovereignty, i.e., exclusive jurisdiction and sole possession, is the supreme law of the land pending treaty and, correspondingly, establishes the utter irrelevance of Crown Parliamentary legislation and Crown court recent inventions based upon the "common law". citation needed February 2018
  3. ^ The precedent value of the Delgamuukw decision is that the constitutional question of the paramount over a Crown Government and Court's jurisdiction of a First Nation's territorial sovereignty pending proof of a surrender, by treaty, is a legitimate and outstanding constitutional question that this Court has never decided, because it has never been tried. Aside from that, the Court expressly and explicitly refused to decide anything of precedent value regarding the Aboriginal constitutional interest. citation needed February 2018


  1. ^ a b Kurjata, Andrew (December 11, 2017). "20 years ago, this court case changed the way Canadians understood Indigenous rights". CBC News. Retrieved February 19, 2018. Delgamuukw set a precedent for Indigenous rights and the use of oral testimony in Canadian courts
  2. ^ a b c d e f "The Delgamuukw Court Action". Gitxsan. nd. Retrieved February 19, 2018.
  3. ^ a b c d e f g h i j k l m n o p q Hurley, Mary (Feb 2000). "Aboriginal Title: The Supreme Court of Canada Decision in Delgamuukw v. BC". Library of Parliament. Retrieved 2019-02-18.
  4. ^ "Calder v British Columbia (AG)". Supreme Court of Canada (SCC=1970-1973). January 31, 1973. Frank Calder et al., suing on their own behalf and on behalf of All Other Members of the Nishga Tribal Council, and James Gosnell et al., suing on their own behalf and on behalf of All Other Members of the Gitlakdamix Indian Band, and Maurice Nyce et al., suing on their own behalf and on behalf of All Other Members of the Canyon City Indian Band, and W.D. McKay et al., suing on their own behalf and on behalf of All Other Members of the Greenville Indian Band, and Anthony Robinson et al., suing on their own behalf and on behalf of All Other Members of the Kincolith Indian Band v. Attorney-General of British Columbia Missing or empty |url= (help)
  5. ^ "Guerin v The Queen". Act of 1984.
  6. ^ McEachern, Allan (1991). Reasons for Judgement of the Honourable Chief Justice Allan McEachern [in the Gitksan-Wet'suwet'en Land Claims Case]. Indians of North America. Criminal Court Registry Office. p. 394.
  7. ^ a b Cruikshank, Julie. The Social Life of Stories: Narrative and Knowledge in the Yukon Territory. (Lincoln: University of Nebraska Press, 1998), 64.
  8. ^ McEachern, Allan. Reasons for Judgement: Delgamuukw v. B.C. (Smithers: Supreme Court of British Columbia, 1991), 75.
  9. ^ Delgamuukw v. AGBC, supra, Transcript of the Proceeding on a Preliminary Jurisdictional Motion 12 September 1995, quoted in Bruce Clark, Justice in Paradise, McGill-Queen's University Press, Montreal and Kingston, 1999, pp. 365, 366, 367.
  10. ^ Delgamuukw v. British Columbia, {{{year}}}, c. Judges: Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Cory, Peter deCarteret; McLachlin, Beverley; Major, John C.
  11. ^ John Bird, Lorraine Land and Murray Macadam (Eds.). Nation to Nation: Aboriginal Sovereignty and the Future of Canada. Toronto: Irwin Publishing.
  12. ^ "Notable Cases in Aboriginal Law". Research guides: Aboriginal Law in Canada. University of Toronto. nd. Retrieved February 19, 2018.
  13. ^ Bruce Clark, Justice in Paradise, McGill-Queens University Press, Montreal and Kingston, 1999.
  14. ^ Saul, J.R. (2008). A Fair Country : Telling truths about Canada. Toronto: Viking Canada. p. 338. ISBN 9780143168423.
  15. ^ Richler, Noah (September 27, 2008). "Original - and aboriginal". The Globe and Mail.
  16. ^ (1888) 14 Appeal Cases 46 (PC)
  17. ^ [1897] Appeal Cases 199 (PC).

Further reading[edit]

  • Culhane, Dara (1998) The Pleasure of the Crown: Anthropology, Law, and First Nations. Burnaby, British Columbia: Talonbooks.
  • Daly, Richard (2005) Our Box Was Full: An Ethnography for the Delgamuukw Plaintiffs. Vancouver: UBC Press. page xviii
  • Fisher, Robin (1992) "Judging History: Reflections on the Reasons for Judgment in Delgamuukw vs. B.C." B.C. Studies, vol. 95, no. 43-54.
  • Gisday Wa and Delgam Uukw (1992) The Spirit in the Land: The Opening Statement of the Gitksan and Wet'suwet'en Hereditary Chiefs in the Supreme Court of British Columbia, 1987-1990. Gabriola, B.C.: Reflections.
  • Glavin, Terry (1990) A Death Feast in Dimlahamid. Vancouver: New Star Books.
  • Mills, Antonia C. (1994) Eagle Down Is Our Law: Witsuwit'en Law, Feasts, and Land Claims. Vancouver: University of British Columbia Press.
  • Mills, A. (2005) Hang on to these words' : Johnny David's Delgamuukw evidence. Toronto : University of Toronto Press pages 13–14
  • Monet, Don, and Ardythe Wilson (1992) Colonialism on Trial: Indigenous Land Rights and the Gitksan and Wet'suwet'en Sovereignty Case. Philadelphia: New Society Publishers.
  • Persky,S. (1998). Delgamuukw : the Supreme Court of Canada decision on Aboriginal title Vancouver: Greystone Books. pages 75-77
  • Roth, Christopher F. (2002) "Without Treaty, without Conquest: Indigenous Sovereignty in Post-Delgamuukw British Columbia." Wicazo Sa Review, vol. 17, no. 2, pp. 143–165.
  • Sterritt, Neil, et al. (1998) Tribal Boundaries in the Nass Watershed. Vancouver: U.B.C. Press.
  • McEachern, Allan. (1991) "Reasons for Judgement: Delgamuukw v. B.C." Smithers: Supreme Court of British Columbia.

External links[edit]