Aboriginal Title Affirmed: Delgamuukw

On December 11, 1997, the Supreme Court of Canada issued its landmark decision in Delgamuukw v. British Columbia. The critical issue was whether the Gitksan and Wet'suwet'en people had aboriginal title to vast tracts of land comprising their territory.

In the end, the Supreme Court of Canada did not decide that issue. It decided that, because of evidentiary problems in the trial decision, a new trial would be required. The Supreme Court noted that this mater might be resolved by negotiations instead of a new trial. The most important part of the decision was some very valuable guidance given by the Supreme Court of Canada on the nature and proof of aboriginal rights and aboriginal title.

The Meaning of Aboriginal Title

The aboriginal litigants in Delgamuukw did not establish aboriginal title to any part of their territory. The Supreme Court of Canada, however, acknowledged the possibility of aboriginal title at law and discussed, in detail, the nature and content of this title.

Aboriginal title, the Supreme Court of Canada said, was not a right similar to "an inalienable fee simple" (the term that describes full ownership at common law). Neither was it, as the Crown had argued, simply a bundle of aboriginal rights to use land for traditional purposes. "Aboriginal title", the Supreme Court said, "is a right in land and, as such, is more than the right to engage in specific activities which may themselves be aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies".

The Court went on to make the following specific points about aboriginal title:

It is inalienable - it can't be transferred except to the Crown.
It flows from the "physical fact" of prior occupation of Canada by aboriginal peoples.
It is held communally - it cannot be held by an individual aboriginal person. It is held by the aboriginal nation on behalf of all of its members.
Aboriginal title lands, like reserve lands, are capable of being used for a wide range of activities needed for the general welfare of the aboriginal nation.
Aboriginal title lands can be surrendered by an aboriginal nation to the Crown in exchange for money or other consideration.

Limits on Aboriginal Title

A fundamental limit on aboriginal title is that the aboriginal title land may not be used in a way that destroys the value that created the aboriginal title. The Court gave the examples of lands that were exclusively occupied as a ceremonial or cultural site. These cannot be used in a way that destroys the aboriginal relationship with the land - for example by turning the lands into a parking lot. The Court makes it clear that this limit is not meant to put a "legal straitjacket on aboriginal peoples who have a legitimate legal claim to the land". The Court appears to leave open for First Nations to use aboriginal title for modern economic purposes - so long as these purposes do not constitute "extravagant acts of destruction". The first step, however, will be the First Nation establishing that it has aboriginal title to the land in question.

Constitutional Protection of Aboriginal Title

The key holding of the Court was that while the Crown owns public lands in Canada, these lands can be subject to aboriginal title. If aboriginal title is proved, this title is constitutionally protected under s.35(1) of the Constitution Act, 1982. This protection means that the Crown can only infringe aboriginal title in a way that is justified.

Infringement of Aboriginal Title and Justification

The test for justification has two parts. First, in order to be justified, the Crown's infringement must be for a compelling and substantial legislative objective. The Court set out a fairly wide variety of Crown conduct that could be justified under this part of the test.

The second part of the justification test, however, is much more difficult for the Crown to meet. The Crown's conduct must be consistent with the "special fiduciary relationship between the Crown and aboriginal peoples" (page 84). The Court emphasized that when assessing whether or not this test has been met, the Court must remember that aboriginal title encompasses the right to "exclusive use and occupation of land". The Court went on to explicitly note that "lands held pursuant to aboriginal title have an inescapable economic aspect".

Justification, therefore, will include, but not be limited to the following aspects:

There is always a duty of consultation - even with respect to relatively minor infringements.
This consultation must always be done "in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue".
In most cases, something "significantly deeper than mere consultation" will be required.
"Fair compensation" will ordinarily be required when aboriginal title is infringed.

The Court did not address the issue of how compensation would be calculated - leaving this complicated and important question for another day.

Proving Aboriginal Title

The Court set out the following test for proving aboriginal title:

In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria:

the land must have been occupied prior to sovereignty;
if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignly occupation; and
at sovereignty, that occupation must have been exclusive.

The Court made some additional important points in order to define the meaning of this test:

Aboriginal title depends on exclusive occupancy of land by the aboriginal group at the time that the Crown asserted sovereignty over the land subject to the title. Aboriginal rights, therefore, depend on the circumstances at the time of European contact while aboriginal title depends on the circumstances at the time of the assertion of sovereignty, which is understood to be 1846.
With respect to exclusive occupancy, the Court should look to more than just the physical occupation of land. The Court should look at the aboriginal perspective on the occupation of land. The aboriginal system of land tenure and laws governing land use may be relevant to establishing exclusive occupation.
The requirement of exclusive occupation does not mean that the aboriginal nation must prove that it was the only one using the lands in question. In fact, the use of the land by other aboriginal groups or individuals, with the permission of the aboriginal nation asserting title, is good evidence of exclusive control.
The Supreme Court of Canada restated its position that the Court must take into account the perspective of aboriginal peoples claiming rights, while at the same time, taking into account the perspective of the common law. Aboriginal rights and title depend on evidence of practices at an early date. Evidence of later-day practices are admissible to prove what happened in those earlier times. Otherwise, it would be unduly difficult to prove a claim based on aboriginal title.
The Court stated that independent weight must be placed on the oral history of the aboriginal litigants. The oral evidence could be of central significance to the issue of the occupation of the lands in question. The history is, therefore, relevant to the proof of aboriginal title.

The Delgamuukw decision has profound implications for the Treaty negotiation process in British Columbia. It provides a viable alternative to that process - litigation. While aboriginal title litigation is complex, time-consuming and expensive, it may be viewed as the preferred route if British Columbia and Canada do not change their Treaty negotiation mandates so as to reflect the new legal reality.