Delgamuukw v. British Columbia

Delgamuukw v. British Columbia
Supreme Court of Canada
Hearing: June 16, 17, 1997 Judgment: December 11, 1997
Full case name: , 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 S.C.R. 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
Reasons given
Majority by: Lamer C.J. (paras. 1-186) Joined by: Cory and Major J. Concurrence/dissent by: McLachlin J. (para. 209) Concurrence/dissent by: La Forest J. (paras. 187-208) Joined by: L'Heureux-Dube J. Iacobucci, Gonthier, and Sopinka JJ. took no part in the consideration or decision of the case.

Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, also known as Delgamuukw vs. the Queen is a famous leading decision of the Supreme Court of Canada where the Court made its most definitive statement on the nature of aboriginal title in Canada.

Court proceedings

The proceedings were started in 1984 by the catso tu ma ma band and the Wet'suwet'en Nation. They bypassed the slow Federal Land Claims process in which the British Columbia Provincial Government would not participate.

They claimed ownership and legal jurisdiction over 133 individual hereditary territories, a total of 58,000 square kilometres of northwestern British Columbia, an area larger than the province of Nova Scotia.

The Gitksan and Witsuwit'en used their oral histories as principal evidence in the case.

Provincial government position

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.) In his explanation for the ruling, McEachern conceded that he was unwilling to seriously consider evidence from oral tradition, arguing that prior to colonization, aboriginal lives had been "nasty, brutish, and short". Justice McEachern found that the "broad concepts embodied in oral tradition, did not conform to juridical definitions of truth,"^[1] 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."^[2][3] 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.

Supreme Court ruling

The Supreme Court made no decision on the land dispute, insisting that another trial was necessary. For the first time, however, the Court directly addressed the issue of Aboriginal title.

Aboriginal title is different from land usage rights, as it acknowledges Indigenous ownership of the land and the right to use in ways it had not been used traditionally. On the other hand, it is different from common land ownership, in that it is a Constitutional communal right deeply linked to Indigenous culture. Land governed by Aboriginal title can only be sold to the Federal Government, not to private buyers. The ruling also made important statements about the legitimacy of Indigenous oral history ruling that oral histories were just as important as written testimony. ^[4]

Aftermath

The Delgamuukw court case has important implications for the history of Canada and for the idea of history itself. In this case the court gave greater weight to oral history than to written evidence. Of oral histories the court said "they are tangential to the ultimate purpose of the fact-finding process at trial -- the determination of the historical truth."

In A Fair Country, John Ralston 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.

Notes

1. ^ Cruikshank, Julie. The Social Life of Stories: Narrative and Knowledge in the Yukon Territory. (Lincoln: University of Nebraska Press, 1998), 64.
2. ^ Cruikshank, Julie. The Social Life of Stories: Narrative and Knowledge in the Yukon Territory. (Lincoln: University of Nebraska Press, 1998), 64.
3. ^ McEachern, Allan. Reasons for Judgement: Delgamuukw v. B.C. (Smithers: Supreme Court of British Columbia, 1991), 75.
4. ^ http://scc.lexum.umontreal.ca/en/1997/1997scr3-1010/1997scr3-1010.pdf

References

• 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.
• Saul, J.R. (2008. A Fair Country : Telling truths about Canada. Toronto: Viking Canada pages 72-75
• 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

• Full text of Supreme Court of Canada decision at LexUMand CanLII
• Justice Dept. analysis of case
• A Lay Person's Guide to Delgamuukw - BC Treaty Commission PDF
• Archive of Delgamuukw Case - NativeWeb