Mar 15/98: Delgamuukw & BCTC-Where are we now?



Steve Rison
March 15, 1998

As posted on warriornet by Ed Deak

Although three months have passed since the Supreme Court of Canada (SCC) handed down its decision in the Delgamuukw v. British Columbia case, there is still considerable debate about its meaning. Over one-hundred hereditary and elected leaders of British Columbia First Nations signed a Statement to Minister Stewart & Minister Cashore in January which articulates their perspective on the Delgamuukw decision, but no direct response from either provincial or federal governments has emerged yet. Needless to say, there are many lawyers pouring over every word of the decision in an attempt to see how it might affect the bargaining positions of all the various players in the treaty process, including municipal governments and third parties. In this article I will attempt to explain in plain language some of the opinions that have been expressed thus far, so that we can evaluate what, if any, impacts or opportunities this landmark decision might hold for the environmental community. In addition, I will also provide a brief summary of the First Nations Statement to Ministers, mentioned above, and a few of the tentative comments coming from government bureaucrats.

The Delgamuukw case has been in the courts since the early 1980s, and was initiated by the Gitksan and Wet'suwet'en peoples with the aim of forcing the BC government to recognize Aboriginal title to their traditional territory, encompassing some 58,000 square kilometers in north-central British Columbia. This Court action was necessary for the Gitksan and Wet'suwet'en because of the provincial government's long-held view that aboriginal rights in BC were extinguished after 1871 and that any legal action should be for compensation from the Government of Canada. The case is remarkable for its length, and especially for the detailed and extensive oral evidence that was presented.

The SCC could not rule on a number of the factual and legal issues specific to the Gitksan and Wet'suwet'en, such as the extent of their territory, their claim for Aboriginal title, and their claim for self-government rights. These will have to be decided in a new trial, or negotiated through treaties. However, the Court made some far-reaching decisions in regard to a number of very important issues of general law. These include the admissibility of aboriginal oral history as evidence, the nature of aboriginal title, the test for proving aboriginal title, infringement of aboriginal title, and extinguishment of aboriginal title.

Before describing each of these issues, it is important to understand the relationship between aboriginal rights and aboriginal title. Existing aboriginal rights were affirmed in Section 35(1) of the Constitution Act, 1982. In Delgamuukw, the SCC says that "aboriginal rights fall along a spectrum with respect to their degree of connection to the land" and that aboriginal title is at one end of that spectrum. At the other end of that spectrum are rights which involve practices, customs, and traditions which are not tied to any specific tract of land, and in the middle are site-specific rights to engage in a particular activity. Thus aboriginal title is a form of aboriginal rights, and is protected by the Constitution.

Oral Evidence

The question surrounding the admissibility of oral history as evidence and the weight it should receive in relation to more conventional forms of evidence was one of the primary reasons for the SCC agreeing to accept the appeal case. In Delgamuukw the Supreme Court asserted that in aboriginal-rights cases oral history must not be systematically rejected nor undervalued as a result of its nature as hearsay evidence. If such a categorical treatment was allowed, this would place an insurmountable obstacle in the way of proving aboriginal title for most aboriginal groups, who did not have written records at the time the Crown asserted its sovereignty over the territory in 1846. Previously, oral histories had only been allowed as evidence to confirm documentary evidence but was not given any independent weight. The Court has decided that the laws of evidence must be adapted in these cases to accommodate oral histories and place them on an equal footing with documentary evidence, as warranted after careful evaluation on a case-by-case basis.

The Nature of Aboriginal Title

This is seen as the most important aspect of the Delgamuukw decision. Previous Court rulings have avoided trying to provide a detailed description of aboriginal title, but in Delgamuukw the SCC put considerable effort and detail into this part of the decision. Aboriginal title is described as a right in land which belongs to a class of its own, and which has three distinctive dimensions.

First, aboriginal title is inalienable to third parties, and "cannot be transferred, sold or surrendered to anyone other than the Crown."

Second, aboriginal title "arises from the prior occupation of Canada by aboriginal peoples," that is, prior to the assertion of British sovereignty. Aboriginal title does not depend for its establishment upon the Royal Proclamation of 1763 nor is it a grant from the Crown. It pre-existed the Crown's interest in the land.

Third, aboriginal title is held communally and cannot be held by individual aboriginal persons. It is a collective right held by all members of an aboriginal nation, and any decisions made with respect to that land must be made by that community. Several ramifications may arise from this. The characteristic of communal decision making may cast doubt on the validity of historic transfers of land where those signing the treaties may not have had the consent of the whole community to do so. Communal decision making in regard to the land may also provide an internal structure upon which to build the broader organization of aboriginal self-government.

The nature of aboriginal title, then, consists in its inalienability to anyone but the Crown, its source based on historic occupation, and its right as a collective or communal interest. The SCC elaborates even further on aboriginal title by defining what it consists of. It includes the right to exclusive use and occupation of the land for a variety of purposes (both traditional and modern), and those uses must not be irreconcilable with the nature of the group's attachment to the land.

This characterization of aboriginal title goes beyond all previous Court decisions on this subject, which generally limited aboriginal interest in land to a right to use it for traditional cultural practices. Courts did not go so far as to include any right of ownership of the land, and did not allow for non-traditional or commercial exploitation. The SCC in its Delgamuukw decision not only declared aboriginal title to be a form of communal ownership of the land with a right to exclude other users, but also stated that this title includes mineral rights and the right to engage in modern commercial exploitation of the natural resources on that land. The one limitation to this range of uses is that any such activity or use must not prevent the continuity of the relationship of an aboriginal community with its land.

For example, aboriginal-title land that was traditionally occupied as a hunting ground could not be converted into a strip mine, which would destroy its value for such a use, nor could special ceremonial or cultural sites be converted into parking lots. The values for which land receives the status of aboriginal title must not be destroyed through its use.

Finally, if an aboriginal group wishes to use some of its lands in a way which aboriginal title does not permit, then the land must be surrendered to the Crown in order to remove aboriginal title on the land before such a use can occur.

The Test for Proving Aboriginal Title

The test for proving that aboriginal title exists contains three elements which revolve around occupation and use. It is in this context that the admissibility of oral history as evidence becomes so important, since archaeological evidence is scanty or non-existent in many cases and documentary records were unknown before contact.

First, the aboriginal group asserting a claim to aboriginal title must show that they occupied the land in question prior to the date on which the Crown asserted sovereignty over that land. In British Columbia this date is the year 1846, and is more recent than the time of first contact. This distinction is important because the time for determining aboriginal rights is the time of first contact, while the time for identifying aboriginal title is the time at which the Crown asserted sovereignty.

Second, if present occupation of the land is relied upon as the basis for proving that the land was occupied before 1846, then there must be continuity in that occupation between pre-sovereignty and the present. There is some flexibility in the continuity requirement, with the intent being that the connection between the people and the land has been substantially maintained. This leaves some room for justifiable gaps in occupation, such as might have occurred as a result of the encroachments of colonizers.

Third, at the time of sovereignty the aboriginal occupation must have been exclusive. This flows from the nature of aboriginal title which involves the exclusive use and occupation of the land. The SCC also allowed room for overlapping claims, in the form of shared exclusivity, where two neighbouring aboriginal groups may have jointly occupied some land, but excluded all others.

The Infringement of Aboriginal Title

While the SCC defined the nature and content of aboriginal title in Delgamuukw, it also affirmed that aboriginal title is not absolute, and thus may be infringed by both the federal and provincial governments. However, any infringement of aboriginal title must pass a test of justification, in two parts.

First, the infringement "must be in furtherance of a legislative objective that is compelling and substantial." Although we are familiar with the common objectives of conservation and environmental protection, the SCC expanded this list of examples to include the development of agriculture, forestry, mining, hydroelectric power, infrastructure, general economic development of the interior of BC, and the settlement of foreign populations to support these aims. These kinds of objectives may in general justify infringement of aboriginal title, but particular measures or government acts would have to be examined on a case-by-case basis.

Second, the infringement must be consistent with the special fiduciary relationship between the Crown and aboriginal peoples. This may take the form of giving first priority to aboriginal interests, or accommodating the participation of aboriginal people in the exploitation of a resource, or lowering barriers to participation by aboriginal people in the exploitation of a resource. In addition, there is a duty of meaningful consultation with, and in some cases (such as hunting and fishing regulations) consent of, aboriginal groups whose rights under title are being infringed. That consultation must be in good faith and must intend to substantially address their concerns. The economic aspect of aboriginal title means that fair compensation will be required when aboriginal title is infringed.

The Extinguishment of Aboriginal Title

Aboriginal title is now protected under Section 35(1) of the Constitution Act of 1982, and extinguishment of aboriginal title is considered to be a form of infringement of that title. Therefore, extinguishment of aboriginal title by a legislative act of the federal government would have to meet the test for infringement described above; it would require the consent of the aboriginal group, and fair compensation would have to be part of the deliberations. The Court also made it clear that provincial laws cannot now and never could extinguish aboriginal rights or title.

To summarize the importance of the Delgamuukw case the following points can be made:

* In aboriginal-rights cases, oral history must not be systematically devalued.

* Aboriginal title is a right in the land itself although not an absolute right, and includes the right to exclusive use and occupation, derives from pre-sovereignty occupation, is a collective right, and is inalienable except to the Crown.

* Aboriginal title includes the right of use for a variety of both traditional and modern purposes, includes mineral rights, and its use must not be irreconcilable with the aboriginal people's attachment to the land.

* Proof of aboriginal title requires exclusive, pre-sovereignty occupation and continuity of occupation between pre-sovereignty and the present.

* Infringement of aboriginal title may occur by both federal and provincial governments, but must be for a compelling and substantive legislative objective, must be consistent with the special fiduciary relationship between the Crown and aboriginal peoples, and must include meaningful consultation with aboriginal people.

* Extinguishment of aboriginal title can only take place as a result of federal legislation, it must have the consent of the aboriginal people, and fair compensation must be included.

Now that we have a general understanding of the Delgamuukw case, we can have a more informed look at the BC First Nations Statement to Ministers. The following are asserted to be the fundamental principles for a new relationship between FNs and the Crown.
* Aboriginal title applies to all of BC, as confirmed by the Delgamuukw decision.

* Aboriginal rights on the land approximate the equivalent of jurisdiction.

* There will be NO EXTINGUISHMENT of aboriginal title or rights.

* Government alienation of lands and resources must be suspended until informed consent of FNs is obtained.

* Province-wide, legally binding Interim Measures must be agreed upon until treaties are negotiated.

* The continuation of their relationship to their lands is the only acceptable limit to FNs' use of their lands and resources.

* Infringement on aboriginal rights and title requires fair compensation (past, present, & future).

* Want fair agreements to remove uncertainty for neighbours and business community.

* Want good-faith negotiations about sharing and coexistence.

The First Nations state that it is not their intention to destroy the provincial economy but rather to assume their rightful place as full participants in the economy and future of the province. Perhaps the issue of most immediate concern to governments and third parties in this Statement is the call for an interim freeze on any further alienation of Crown land and resources until province-wide interim-measures agreements can be negotiated. Resource industries would view this as a direct threat to their viability, and the provincial government would consequently view it as a threat to industry employment.

Rather than being presented for an assessment of its merits, the FNs Statement to Ministers is included here to show their perspective on the meaning of the Delgamuukw decision. No such comprehensive statement has been issued by either the provincial or federal governments, although a few general comments have been made. The provincial government:

- Has indicated that it will obey the law, although the interpretation and application of the law have yet to be determined.

- Prefers negotiation to litigation, but will not negotiate with an aboriginal group which chooses to litigate.

- Will make an effort to redesign the negotiation process to simplify and streamline some of the regulatory environment and some of the consultation so that economic development can continue.

- Will examine staffing levels and financial resources committed to the process with a view to increasing them.

- Will back decisions made by line ministries.

- Has most recently redoubled its efforts to reach a timely conclusion in the negotiations for a treaty with the Nisga'a Nation.

Some non-governmental opinions have been expressed. One such opinion has come from a Vancouver-based legal firm which deals particularly with forest-sector clients. In regard to forest operations, the following points were noted:
* Aboriginal title, while confirmed in principle, must still be proven in Court by each aboriginal group; not a very likely scenario.

* Forestry is a justifiable infringement of aboriginal title.

* There is no set standard of consultation; this will require further case law.

* Aboriginal consent is not specifically required for forestry operations to proceed.

* Many difficult questions remain unanswered, and await further litigation. These include the nature of the rights held, the degree of consultation required to infringe, and the amount of compensation required.

* Cumbersome forestry approval processes will likely slow down even more.

* While full consultation with aboriginal groups when infringing any aboriginal rights would be prudent, few cases would require consent for timber-cutting permits.

* No change in the ability of an aboriginal group to obtain an injunction to stop development on its traditional territory.

Another, rather alarmist, interpretation of Delgamuukw was delivered to the Vancouver Board of Trade, where the decision of the SCC was characterized as creating the most serious state of crisis in the province's history in regard to provincial sovereignty, as lacking in proper legal foundation, and as ruining the provincial land claims process. The speaker's points included these grim assessments:
- Crown ownership of the land mass of BC has been drastically undermined.

- Province's ability to make land resource decisions has been seriously hamstrung.

-Aboriginal groups have been given special status in legal proceedings in regard to rules of evidence and aboriginal perspective.

- Aboriginal title has been made superior to other forms of land tenure, and can only be infringed when rigid test conditions are met and compensation is paid.

- The SCC failed to confirm that lawmaking authority rests solely with Parliament or provincial legislatures.

The speaker's proposed remedies for all these defects are:
- To immediately replace the BC treaty process with a legislated solution, such as was recently done in Australia with regard to its Aborigines. The proposed federal statute would automatically extinguish aboriginal title on all alienated (tenured) Crown land, past, present, and future, and would pay compensation based on statutory criteria. There would be no limit or hindrance on the province's authority to continue to infringe on the remaining aboriginal-title lands.

- That compensation would be the sole responsibility of the federal government.

Such a radical "final solution" would hold an appeal to certain segments of our population, but the current political and social climate in Canada would seem to preclude the possibility of its success.

The primary significance of the Delgamuukw decision appears to be in its treatment of the nature and content of aboriginal title, how it is proved, how it can be infringed, and how it can be extinguished. Translating this decision into practical and specific situations has yet to be accomplished, and, as shown by this brief review, there is a wide diversity of opinion in this regard. Even so, is there anything which the environmental community can take from this very important Court case? Yes, I think there is.

Most importantly for us is the stated intention of many of the First Nations to continue to negotiate rather than return to the Courts. When the litigation route is chosen, we are essentially frozen out of the process, and have no opportunity to affect the outcome. The legal route is a bit of a crap shoot, since there is usually a winner and a loser, and there is no way of knowing ahead of time which way the decision will go. The Delgamuukw decision took nearly a quarter of a century to make its way through three levels of the legal system. Can our natural environment survive another quarter century in tact while further legal cases wind their way through these complex maneuvers? I fear not. As long as negotiations are proceeding, we will have an opportunity to be involved, and we will have an opportunity to build better relationships with the First Nations communities.

Another important aspect for us is the apparent boost in the strength of the bargaining position of First Nations in their attempts to gain more control over their lives, including their cultures, their traditional lands, and their aspirations for the future. There is already a strong aboriginal cultural revival happening in BC, and some aboriginal groups have never lost their cultural traditions and pride but only recently have been able to show them in a public way after decades of repression. The Delgamuukw decision should help to support this process. With a strengthened aboriginal hand at the negotiating table, governments and corporations will be trying harder to reach settlements which truly recognize and accommodate First Nations interests, which in many ways we share.

Some perceive a threat to the natural environment in having control of some land-use decision making pass into the hands of First Nations from the authority of provincial ministries and their corporate clients. Some aboriginal groups do not currently appear to have the capacity to take on such responsibilities. Well, judging by the past and present record of government / industry performance in "managing for all values" and protecting ecosystem integrity, perhaps it is time to cooperate and work with First Nations in order to achieve the healthy environment and healthy communities that we all desire.

Finally, what we can take from Delgamuukw is some satisfaction and confidence that we are still a just society, that our highest Court in the land recognizes that we the people want done what is right. We want equity and fairness, especially for those who have been the undeserving victims for over a century, of injustice, of might-makes-right politics, of double-dealing and deceit and outright theft, even if the price may be great. We have to be willing to pay it, or we do not deserve to be called an honourable people.


Davis & Company Barristers & Solicitors - Forestry Bulletin, February 1998

First Nations Summit - Statement to Ministers, January 31, 1998

Melvin Smith, QC - speech to Vancouver Board of Trade, Feb. 10, 1998

Pacific Business and Law Institute conference, Feb. 12-13, 1998: Papers 
 	Graham Garton, QC - Delgamuukw: The Supreme Court Makes Oral History
 	Brian Slattery - The Definition and Proof of Aboriginal Title
 	Denis de Keruzec - The SCC Decision in Delgamuukw
 	Louise Mandell, QC - The Delgamuukw Decision
Pape & Salter Barristers & Solicitors - Delgamuukw Summary, January 09, 1998

Premier Clark & Minister Cashore addressing TNAC, Feb. 02, 1998

SCC Delgamuukw v. British Columbia, December 11, 1997

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