Download Colleen Noble Presentation on Delgamuukw v. B.C., 1997

Delgamuukw v. British Columbia,
1997
Background
•
Claims to Aboriginal title and self-government
over 58, 000 km2 in BC interior brought by
Delgamuukw and hereditary chiefs of the
Gitksan and Wet’suwet’en.
•
SCC’s first definitive statement on the content
of Aboriginal title:
1. Defines how Aboriginal title may be proved;
2. Describes the scope of protection afforded
Aboriginal title under s. 35(1) of the CA, 1982 and;
3. Outlines the justification tests for infringing upon
Aboriginal title
Unresolved Issues
• Land titles claim at issue was not resolved in
this case (new trial required).
• Claim of self-government not resolved by
ruling.
Scope of Aboriginal Title
• Aboriginal title is a “collective right” and cannot
be held by individuals.
• Aboriginal title is inalienable except to the
federal Crown (cannot be sold to third parties).
• Unfreezing of title from strictly traditional uses:
– Holders of native title have rights beyond traditional
uses,
– “Inherent limit” – land cannot be used in a manner
that is irreconcilable with the nature of the claimants’
attachment to the land.
Proving Aboriginal Title
•
Use of oral tradition evidence in Aboriginal rights claim
cases determined to be acceptable.
•
The origin of Aboriginal rights originate not from any grant
or recognition by the Crown but rather from the historic
occupation and possession of the land by Aboriginals
groups [Calder v. B.C. (A.G.), 1973].
•
In previous cases courts ruled that when claiming rights to
engage in particular activities (e.g. fishing) Aboriginal rights
must go back to time of first contact with Europeans.
–
However, relevant time period for assertion of land title is time at
which the Crown asserted sovereignty (at odds with earlier
suggestion that title is a sub-category of rights).
Proving Aboriginal Title
1. Proof of occupation prior to sovereignty. Therefore
Aboriginals must establish that they already
occupied the land for which they are claiming title
at the time of assertion of British sovereignty.
2. Evidence of occupation (present and presovereignty occupation)
3. Occupation must have been exclusive at
sovereignty
Justification for Infringing Aboriginal
Rights
• Province cannot extinguish Aboriginal title, only the
federal Parliament can under s. 91(24).
• Aboriginal title not absolute - the Crown must have
compelling & substantial legislative objectives for
infringing these rights:
– Development of agriculture, forestry & mining
– Infringement is required to be as minimal as possible
– Government required to give real weight and priority to
Aboriginal interests in development on their land.
– Minimum duty to consult, and in some circumstances, full
consent by entire nation and financial compensation is
required.
Questions
• Does the acceptance of Crown sovereignty in Delgamuukw
place Aboriginal title in a subordinate position relative to
other legal rights?
• Does the legal framework established by the ruling undermine
Aboriginal land rights?
• Given the “inherent limit” on uses of land, (i.e. land cannot be
used in a manner that is irreconcilable with the nature of the
claimants’ attachment to the land), how far does this really
extend Aboriginal land rights beyond traditional uses?