by Blake, Cassels & Graydon
1. On Thursday December 11th, 1997, the Supreme Court of Canada rendered its decision in the case of Delgamuukw v. British Columbia. The following provides a summary of the decision and highlights the significant issues addressed by the Court.
2. This action was originally commenced by the hereditary chiefs of the Gitksan and Wet’suwet’en Nations ("Hereditary Chiefs") for ownership and jurisdiction of 58,000 square kilometres in northern British Columbia. The action was later transformed into a claim for aboriginal title over the land in question. The province of British Columbia counterclaimed for a declaration that the Hereditary Chiefs have no right or interest in the territory.
3. In the result, the Supreme Court of Canada unanimously held that aboriginal title consists of the right to exclusively use and occupy the land including the right to choose how the land can be used, reasoning that aboriginal title has an "inescapable economic component." The Court allowed the appeal, in part, because the trial judge had not afforded the oral history evidence called at the trial appropriate weight, and therefore, his treatment of the oral history did not conform to evidentiary principles applicable in aboriginal rights cases as enunciated in the Supreme Court of Canada’s decision in R v. Van der Peet. The Court ordered a new trial.
4. The Supreme Court addressed a number of substantive issues and enunciated important principles relating to: the significance of oral history, aboriginal title, the test for proving aboriginal title, the scope of constitutional protection to be afforded to aboriginal title, and limitations on the provincial power to extinguish aboriginal title.
5. The Court acknowledged the conventional evidentiary difficulties posed by the use of oral history; however, it accentuated its importance in the adjudication of aboriginal rights and held:
Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents (para. 87).
6. In essence, the Court re-affirmed the special evidentiary principles regarding judicial treatment of oral history which were set out in its decision in Van der Peet. Trial courts must accord independent weight to oral history, while recognizing the evidentiary difficulties inherent in adjudicating First Nations claims:
[T]he trial judge gave no independent weight to these special oral histories because they did not accurately convey historical truth, because knowledge about those oral histories was confined to the communities whose histories they were and because those oral histories were insufficiently detailed….The implication of the trial judge’s reasoning is that oral histories should never be given any independent weight and are only useful as confirmatory evidence in aboriginal rights litigation. I fear that if this reasoning were followed, the oral histories of aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system.…" (emphasis added, at para. 98)
7. As such, oral history need not provide definitive and precise evidence of pre-sovereignty First Nation occupation on the territory in question, but may demonstrate that current occupation has its origins prior to sovereignty. Further, the interpretation of the evidence must give due weight to the First Nations perspective regarding practices, customs, traditions and their relationship with the land.
B. The Content of Aboriginal Title
8. The Court rejected the Provincial Crown’s "bundle of rights" argument which characterized aboriginal title as a collection of site specific, activity based rights:
Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights (para. 111).
What aboriginal title confers is the right to the land itself (para. 138).
aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and…that those protected uses must not be irreconcilable with the nature of the group’s attachment to that land (para. 117).
9. The Court further stated that "aboriginal title encompasses within it a right to choose to what end a piece of land can be put" (para. 168), subject to an inherent limitation apparent in the preceding quote, and that it has an "inescapable economic component" (para. 166). Based on this definition of aboriginal title, the Court specifically included mineral rights and their exploitation within the ambit of aboriginal title:
On the basis of Guerin, aboriginal title also encompasses mineral rights, and lands held pursuant to aboriginal title should be capable of exploitation in the same way, which is certainly not a traditional use for those lands (para. 122).
10. The limitation, however, is that the uses to which the lands are put must not be irreconcilable with the nature of the group’s attachment to those lands (para. 125). By way of illustration, if hunting practices were used to demonstrate occupation of, or attachment to territory claimed as aboriginal title lands, the First Nation cannot strip mine the territory. Such use, according to this reasoning, would destroy the future value of hunting practices and, thus, be inconsistent with the First Nation’s attachment to the land in question. In keeping with the sui generis, or unique, quality of aboriginal title, the Court supported its conclusion with the following reasoning:
What the inalienability of lands held pursuant to aboriginal title suggests is that those lands are more than a fungible commodity. The relationship between an aboriginal community and the land over which it has aboriginal title has an important non-economic component. The land has an inherent and unique value in itself, which is enjoyed by the community with aboriginal title to it. The community cannot put the land to uses which would destroy that value (para. 130).
11. Accordingly, the Court held that those uses that threaten the nature of the prior occupation of the lands and the future relationship between the First Nations and the lands are excluded from the content of aboriginal title. However, it must be noted that:
This is not, I must emphasize, a limitation that restricts the use of the land to those activities that have traditionally been carried out on it (para. 132).
12. If First Nations intend to use their lands in a restricted way, e.g. strip mining a hunting ground, they must surrender those lands to the Crown and convert them into "non-title lands" (para. 131). The exact nature of "non-title lands" was not addressed by the Court.
13. In order to make out a claim for aboriginal title, the First Nation asserting title must satisfy the following criteria:
(i) the land must have been occupied prior to European sovereignty (in British Columbia, 1846);
(ii) if present occupation is relied on as proof of occupation pre-sovereignty, then there must be a continuity between present and pre-sovereignty occupation; and
(iii) at sovereignty, that occupation must have been exclusive (para. 143).
14. Establishment of occupation of the land requires a court to take into account both the common-law and the aboriginal perspective regarding the land in question, including aboriginal systems of law (para. 147). "Occupancy is determined by reference to the activities that have taken place on the land and the uses to which the land has been put by the particular group" (para. 128), and may be established, for example, by proof of houses or dwellings situated on the land, cultivation, enclosure of fields and regular use of definite tracts of land for exploiting resources (para. 149).
15. Proof of continuity between present and pre-sovereignty occupation need not constitute "an unbroken chain of continuity" (para. 153, quoting from Van der Peet):
The occupation and use of lands may have been disrupted for a time, perhaps as a result of the unwillingness of European colonizers to recognize aboriginal title. To impose the requirement of continuity too strictly would risk "undermining the very purpose of s. 35(1) by perpetuating the historical injustice suffered by aboriginal peoples at the hands of colonizers who failed to respect" aboriginal rights to land (para. 54, quoting in part from R. v. Cote).
Rather, evidence of substantial maintenance of the connection between the people and the land is sufficient to establish continuity, even if the nature of the occupation has changed over time (para. 154).
16. With respect to the requirement of exclusive occupation, the Court reasoned that "[t]he proof of title must, in this respect, mirror the content of the right" (para. 155). Such proof must also rely on both the common law and the aboriginal perspective. The Court cautioned against strict adherence to the requirement of exclusive occupation when determining whether aboriginal title exists:
…the test required to establish exclusive occupation must take into account the context of the aboriginal society at the time of sovereignty. For example, it is important to note that exclusive occupation can be demonstrated even if other aboriginal groups were present, or frequented the claimed lands…Thus an act of trespass, if isolated, would not undermine a general finding of exclusivity, if aboriginal groups intended to and attempted to enforce their exclusive occupation (para. 156).
Hence, actual exclusivity is not required as exclusive occupation may be demonstrated by the "intention and capacity to retain exclusive control" (para. 156 quoting McNeil, Common Law Aboriginal Title (1989) at 204).
17. It is important to note that the Court recognized the possibility of shared exclusivity between two First Nations, resulting in joint title:
I would suggest that the requirement of exclusive occupancy and the possibility of joint title could be reconciled by recognizing that joint title could arise from shared exclusivity (para. 158).
18. Aboriginal title is recognized and affirmed as an "existing aboriginal right" in section 35 of the Constitution Act, 1982 and confers a right in land:
[A]boriginal title is "simply one manifestation of a broader-based conception of aboriginal rights". Thus, although aboriginal title is a species of aboriginal rights recognized and affirmed by s. 35(1), it is distinct from other aboriginal rights because it arises where the connection of a group with a piece of land "was of a central significance to their distinctive culture" (para. 137, citing in part R. v. Adams).
19. However, the protection of aboriginal title is not absolute, as the right may be infringed by both federal and provincial governments. Such infringements may be justified pursuant to the test set out in R. v. Gladstone:
(i) the infringement of the aboriginal right must be in furtherance of a compelling and substantial legislative objective; and
(ii) the infringement must be consistent with the special fiduciary relationship between the Crown and First Nations.
20. In Gladstone, the Court set out the reasoning for the limitations placed on aboriginal rights by reference to a "compelling and substantial legislative objective":
Because…distinctive aboriginal societies exist within, and are part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to that community as a whole (taking into account the fact that aboriginal societies are part of that community), some limitation of those rights will be justifiable. Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part: limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation (emphasis in original, para. 161).
21. When infringement of an aboriginal right is necessary, the Crown must adhere to its fiduciary duty towards First Nations. The scope of the fiduciary duty is determined according to the nature of the aboriginal right at issue and according to the legal and factual context of the appeal. The Court reiterated its position in Gladstone which altered the notion of priority that was first articulated in Sparrow. The theory underlying the principle of priority is that the fiduciary relationship between the Crown and aboriginal peoples demands that aboriginal interests be placed first. The Crown might take into account the existence and importance of aboriginal rights in allocation resources (para. 162).
22. In the context of aboriginal title, the Court held that justifiable limits on aboriginal rights are a question of fact determinable on a case by case basis, but include the following:
[T]he development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims…(para. 165).
23. The execution of the Crown’s fiduciary duty, specifically with respect to aboriginal title, must be consistent with the elements of aboriginal title – the "exclusive" use and occupation of land, "the right to choose" how the land can be used, subject to the limitation described above, and the "inescapable economic component" of aboriginal title (para. 166). With respect to the exclusivity aspect of aboriginal title, the notion of priority entails:
that governments accommodate the participation of aboriginal peoples in the development of the resources of British Columbia, that the conferral of fee simples for agriculture, and of leases and licences for forestry and mining reflect the prior occupation of aboriginal title lands, that economic barriers to aboriginal uses of their lands (e.g. licensing fees) be somewhat reduced (para. 167).
24. Because aboriginal title entails the right of the First Nation to choose the uses of its land, the Court added that any infringement of aboriginal title, at minimum, requires consultation:
[T]he fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified…The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title….the minimum acceptable standard is consultation, [which] must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands (emphasis added, para. 168).
25. The Court further added that the economic aspect of aboriginal title requires compensation as justification of an infringement:
In keeping with the duty of honor and good faith of the Crown, fair compensation will ordinarily be required when aboriginal title is infringed. The amount of compensation payable will vary with the nature of the particular aboriginal title affected and with the nature and severity of the infringement and the extent to which aboriginal interests were accommodated (para. 169).
26. The Court’s judgment in Delgamuukw makes it clear that justification will always require consultation and, ordinarily, compensation for any infringement of an aboriginal right.
E. Provincial Extinguishment Prior to 1982
27. This judgment puts to rest the issue of the ability of the provinces to extinguish aboriginal rights prior to the Constitution Act, 1982, when section 35 constitutionalized "aboriginal and treaty rights" in Canada. The Court held that from Confederation to April 17, 1982, only the federal government retained jurisdiction to extinguish aboriginal rights through section 91(24) of the British North America Act, which grants the federal government jurisdiction to legislate in relation to "Indians and Lands Reserved for Indians". As such, the provinces have not possessed the jurisdiction to extinguish aboriginal rights held by First Nations:
[A]lthough on surrender of aboriginal title, the province would take absolute title, jurisdiction to accept surrenders lies with the federal government. The same can be said of extinguishment – although on extinguishment of aboriginal title, the province would take complete title to the land, the jurisdiction to extinguish lies with the federal government (emphasis added; para. 175).
28. Further, the Court found that provincial governments do not have the jurisdiction to enact laws specifically in relation to aboriginal rights, including aboriginal title.
F. The Crown’s Duty in Negotiations
29. In its conclusion, the Court encouraged balanced negotiation as a mode of settling the issue of aboriginal title. Moreover, the Court placed a positive duty upon the Crown with respect to negotiating settlements:
the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith (para. 186).
30. The Delgamuukw case has enunciated essential first principles relating to aboriginal jurisprudence. The Court placed oral history on an equal footing with historical documentation and underscored the value of oral history as an independent source of proof. Further, the Court affirmed that aboriginal title is a general interest in land beyond site specific, activity based rights. Aboriginal title has an economic dimension which includes mineral and other resource interests. Proof of aboriginal title will be based on occupation of traditional territory prior to the assertion of European sovereignty (in British Columbia, 1846) and involves exclusive occupation, although such exclusive occupation may be shared with other aboriginal people.
31. The Court affirmed categorically that aboriginal title is a right entrenched and protected by s. 35 of the Constitution Act, 1982. Further, it reasoned that infringement of aboriginal title might be justified according to the tests set out in Sparrow, as modified in Gladstone. However, the Court stated that the execution of the Crown’s fiduciary duty with respect to aboriginal title must recognize its "inescapable economic component" and requires that the Crown accommodate the participation of aboriginal peoples in the development of resources in British Columbia. The Court also affirmed the Crown’s obligation to consult aboriginal peoples with respect to their lands, reasoning that in some cases full consent of aboriginal peoples will be required in relation to resource use on traditional lands. In addition to the requirements of consultation and, in some cases, consent, the Court underscored that in keeping with the Crown’s duty of honour and good faith, fair compensation to First Nations whose rights have been infringed will ordinarily be required.
32. Finally, the Court found that provincial laws of general application cannot extinguish aboriginal rights. The Province does not have the constitutional capacity or jurisdiction to legislate specifically in relation to aboriginal title or other aboriginal rights.