1. Delgamuukw v. British Columbia, 1997

2. Background Claims to Aboriginal title and self-government over 58, 000 km 2 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

3. Unresolved Issues Land titles claim at issue was not resolved in this case (new trial required). Claim of self-government not resolved by ruling.

4. 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.

5. 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).

6. 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 pre- sovereignty occupation) 3.Occupation must have been exclusive at sovereignty

7. 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.

8. 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?