Delgamuukw v. British Columbia
Encyclopedia
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.
. 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.
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," 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." 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.
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.
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.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
, also known as Delgamuukw vs. the Queen is a famous leading decision of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
where the Court made its most definitive statement on the nature of aboriginal title
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
in Canada.
Court proceedings
The proceedings were started in 1984 by the catso tu ma ma band and the Wet'suwet'en NationWet'suwet'en
Wet'suwet'en are a First Nations people who live on the Bulkley River and around Broman Lake and Francois Lake in the northwestern Central Interior of British Columbia...
. They bypassed the slow Federal Land Claims process in which the British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
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
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
, an area larger than the province of Nova Scotia
Nova Scotia
Nova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...
.
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 NationsFirst Nations
First Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...
land rights in British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
were extinguished by the colonial government
Colony of British Columbia
The Colony of British Columbia was a crown colony in British North America from 1858 until 1866. At its creation, it physically constituted approximately half the present day Canadian province of British Columbia, since it did not include the Colony of Vancouver Island, the vast and still largely...
before it became part of Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
in 1871. Moreover, Chief Justice Allan McEachern
Allan McEachern
Allan McEachern, BA, LL.B, LL.D was a Canadian lawyer, a judge, and a Chancellor of the University of British Columbia.-Career:...
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
Oral tradition
Oral tradition and oral lore is cultural material and traditions transmitted orally from one generation to another. The messages or testimony are verbally transmitted in speech or song and may take the form, for example, of folktales, sayings, ballads, songs, or chants...
, arguing that prior to colonization, aboriginal lives had been "nasty, brutish, and short
Leviathan (book)
Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil — commonly called simply Leviathan — is a book written by Thomas Hobbes and published in 1651. Its name derives from the biblical Leviathan...
". Justice McEachern found that the "broad concepts embodied in oral tradition
Oral tradition
Oral tradition and oral lore is cultural material and traditions transmitted orally from one generation to another. The messages or testimony are verbally transmitted in speech or song and may take the form, for example, of folktales, sayings, ballads, songs, or chants...
, did not conform to juridical definitions of truth," stating: "I am unable to accept adaawk, kungax and oral traditions
Oral tradition
Oral tradition and oral lore is cultural material and traditions transmitted orally from one generation to another. The messages or testimony are verbally transmitted in speech or song and may take the form, for example, of folktales, sayings, ballads, songs, or chants...
as reliable bases for detailed history but they could confirm findings based on other admissible evidence." Although these courtroom proceedings established the precedent of First Nations presenting their claims to land through the use of oral tradition
Oral tradition
Oral tradition and oral lore is cultural material and traditions transmitted orally from one generation to another. The messages or testimony are verbally transmitted in speech or song and may take the form, for example, of folktales, sayings, ballads, songs, or chants...
, Justice McEachern ruled that oral tradition
Oral tradition
Oral tradition and oral lore is cultural material and traditions transmitted orally from one generation to another. The messages or testimony are verbally transmitted in speech or song and may take the form, for example, of folktales, sayings, ballads, songs, or chants...
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 CourtSupreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
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
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
, in that it is a Constitutional
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
communal
Communalism
Communalism is a term with three distinct meanings according to the Random House Unabridged Dictionary'.'These include "a theory of government or a system of government in which independent communes participate in a federation". "the principles and practice of communal ownership"...
right deeply linked to Indigenous
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
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
Oral history
Oral history is the collection and study of historical information about individuals, families, important events, or everyday life using audiotapes, videotapes, or transcriptions of planned interviews...
ruling that oral histories were just as important as written testimony.
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 historyOral history
Oral history is the collection and study of historical information about individuals, families, important events, or everyday life using audiotapes, videotapes, or transcriptions of planned interviews...
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
John Ralston Saul
John Ralston Saul, CC is a Canadian author, essayist, and President of International PEN.As an essayist, Saul is particularly known for his commentaries on the nature of individualism, citizenship and the public good; the failures of manager-, or more precisely technocrat-, led societies; the...
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.
External links
- Justice Dept. analysis of case
- A Lay Person's Guide to Delgamuukw - BC Treaty Commission PDF
- Archive of Delgamuukw Case - NativeWeb