December 11, 2003 marks the sixth year anniversary since the Supreme Court of Canada’s
decision on the continued existence of Aboriginal title in BC. This article will commemorate
the anniversary by providing a broad overview of the Court decision.
The first aboriginal title case in BC, better known as the Calder case, advanced by the Nisga’a began in 1968 and was eventually dealt with by the Supreme Court of Canada in 1973. The outcome of the Nisga’a case left the question of aboriginal title open. This, in itself, was quite a momentous outcome as the government and general population were quite confident that aboriginal title in BC had been effectively extinguished through colonial and provincial legislation.
Aboriginal title was raised again through the Supreme Court of Canada with the Delgamuukw case when the Gitxsan and Wet’suwet’en Hereditary Chiefs filed a lawsuit against the province of BC in 1984. The case dealt with the ownership and jurisdiction over 58,000 square kilometres in northern BC.
Thirteen years later, on December 11, 1997, the trial ended and the Supreme Court of Canada unanimously held that aboriginal title continues to exist, that it holds within it the right to the land itself, the right to exclusively use and occupy the land including the right to choose how the land can be used, and further, that aboriginal title has an “inescapable economic component.
The court did not rule specifically on the Gitxsan and Wet’suwet’en title due to an error by the initial BC trial judge in not accepting the oral history evidence that had been provided.
Nevertheless, the Court did address a number of issues and clarified important principles that relate to aboriginal title. These include the significance of oral history as proof for aboriginal title, as well as a clear definition of what aboriginal title is, the scope of constitutional protection for aboriginal title and the limitations on the provincial power to extinguish aboriginal title.
The Court found that provincial governments do not have, nor have they had in the past, the jurisdiction to enact laws that relate to aboriginal rights such as aboriginal title. The Court affirmed that aboriginal title is a right entrenched and protected by section 35 of the Constitution Act, 1982. In its conclusion, the Court encouraged that the issue of aboriginal title be based upon balanced negotiation rather than further legal action. The Court stated that, “the Crown is under a moral, if not legal, duty to enter into and conduct those negotiations in good faith.
When the highest court of the land reaches a decision, the ruling is generally implemented quickly. In the six years since this substantial Supreme Court of Canada ruling, progress in addressing and implementing it has been non-existent. As a result, on this sixth anniversary of the Delgamuukw decision, a majority of First Nations in BC have file legal writs that could see the issue of aboriginal title back in the courts.