Paper: Defining Aboriginal Title in the 90's: Has the Supreme Court Finally got it Right?

Kent McNeil

March 25, 1998


The full lecture is available by downloading the pdf at the bottom of this page.

The arrival of Europeans in North America had a profound impact on the Aboriginal peoples who had been living here for thousands of years. Virtually everything changed: unfamiliar diseases like smallpox ravished the population; the fur trade and European settlement and resource use decimated the wildlife; new technology such as firearms altered Aboriginal economies and tribal relations; Christian evangelism affected spiritual beliefs and values; European imposition of sovereignty and governmental structures weakened, and in some cases replaced, Aboriginal forms of government; and so on.1 But more than anything else, the taking of Aboriginal lands by Europeans has probably had the greatest long-term impact on the Aboriginal peoples.

In some areas of Canada, a degree of consent to this taking was obtained in the form of treaties.2 Elsewhere - especially east of Ontario and in British Columbia - Aboriginal lands were simply seized for incoming settlers.3 These discrepancies reveal both doubt (transparently self-serving) among Europeans about whether the Aboriginal peoples had legal rights to their traditional lands, and unevenness in the way Aboriginal land claims were actually dealt with. But from the beginning of European colonization, there was always some recognition of Aboriginal use and occupation of land. While French acknowledgement of this undeniable reality tended to be revealed more in dayto- day relations with the Aboriginal peoples,4 Britain formally recognized Aboriginal land rights in the Royal Proclamation of 1763.5 That document specifically reserved unceded Aboriginal lands for Aboriginal occupation and use, and stipulated that those lands could only be acquired by the Crown at an
assembly of the Aboriginal people concerned.

While the Royal Proclamation provided a legal basis for the land surrender treaties that followed, the issue of the nature of Aboriginal land rights remained unsettled. Amazingly, that issue was not judicially resolved until December, 1997, when the Supreme Court of Canada. finally produced a legal definition of Aboriginal title in its landmark decision in Delgamuukw v British Columbia.6 That case involved claims by the Gitxsan (also spelled Gitksan) and Wet'suwet'en Nations to ownership and jurisdiction over their traditional territories. encompassing 58,000 square kilometres - an area almost the size of New Brunswick - in northern British Columbia (see the map of the claim area at page ).7 The case resulted in one of the longest and most complex trials in Canadian history, taking 318 days for presentation of the evidence and a further 56 days for legal argument. The trial was conducted in the British Columbia Supreme Court before Chief Justice McEachern, who produced a book-length judgment dismissing the claims.8 The British Columbia Court of Appeal modified some aspects of that decision, and affirmed others.9 On further appeal, the Supreme Court of Canada set aside the Court of Appeal's decision, and ordered a new trial.

Antonio Lamer, the Chief Justice of Canada, delivered the leading judgment.10 While avoiding any decision on the merits of the case, he did outline some important principles to be applied in Aboriginal title litigation. First of all, he specified the title's content, and explained how it can be proved. He then looked at the test for determining when a legislative infringement of Aboriginal title can be justified. Finally, he examined the issue of whether the provinces have authority under the Constitution to extinguish Aboriginal title. But even though self-government was a vital part of the Gitxsan and Wet'suwet'en claims, he refused to address that issue directly. However, there is some indication in his judgment that the Court might look favourably on a claim of self-government in an appropriate future case.

In this lecture, I will examine the principles the Chief Justice laid down in relation to Aboriginal title, and assess the possible impact of his decision on Aboriginal land claims and resource development in Canada. We will see that the decision has far-reaching implications that could lead to the economic and political empowerment of Aboriginal peoples and to a radical restructuring of Canadian federalism.


1. See generally J.R. Miller, Skyscrapers Hide the Heavens.- A History of Indian-White Relations in Canada, rev'd ed. (Toronto: University of Toronto Press, 1989); Olive Patricia Dickason, Canada's First Nations: A History of Founding Peoples from Earliest Years (Toronto: McClelland and Stewart, 1992); Robin Fisher, Contact and Conflict: Indian- European Relations in British Columbia, 1774-1890, 2nd ed. (Vancouver: University of
British Columbia Press, 1992).

2. See Darlene Johnston, The Taking of Indian Lands in Canada.- Consent or Coercion? (Saskatoon: University of Saskatchewan Native Law Centre, 1989); Report of the Royal Commission on Aboriginal Peoples (hereinafter RCAP Report), Vol. 1, Looking Forward, Looking Back (Ottawa: Supply and Services Canada, 1996), 119-79.

3. E.g. see Leslie F.S. Upton, Micmacs and Colonists., Indian- White Relations in the Maritimes, 1713-1867 (Vancouver: University of British Columbia Press, 1979); Paul Tennant, Aboriginal Peoples and Politics., The Indian Land Question in British Columbia, 1849-1989 (Vancouver: University of British Columbia Press, 1990).

4. See Brian Slattery, "French Claims in North America 1500-59" (1978) 59 Canadian Historical Review 139; W.J. Eccles, "Sovereignty-Association, 1500-1783" (1984) 65 Canadian Historical Review 475; Cornelius J. Jaenen, "French Sovereignty and Native Nationhood During the French Regime", in J.R. Miller, ed. Sweet Promises. A Reader on Indian-White Relations in Canada (Toronto: University of Toronto Press, 1991), 19.

5. R.S.C. 1985, App. IL No. 1. See Brian Slattery, The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown's Acquisition of Their Territories (Saskatoon: University of Saskatchewan Native Law Centre, 1979); Jack Stagg, Anglo-Indian Relations in North America to 1763 and an Analysis of the Royal Proclamation of 7 October 1763 (Ottawa: Research Branch, Indian and Northern Affairs Canada, 1981); John Borrows, "Constitutional Law from a First Nation Perspective: Self-Government and the Royal Proclamation" (1994) 28 University of British Columbia Law Review 1.

6. [1998]1 C.N.L.R. 14 (hereinafter Delgamuukw).

7. On appeal, the claimants modified their claim from ownership and jurisdiction to Aboriginal title and self-government: see ibid., at 44-45 (para. 73).

8. Delgamuukw v. British Columbia (1991), 79 D.L.R. (4th) 185.

9. Delgamuukw v. British Columbia (1993), 104 D.L.R. (4th) 470.

10. Cory and Major JJ. concurred with Lamer C.J. La Forest J., L'Heureux-Dube J. concurring, wrote a separate judgment arriving at the same result, but differing somewhat on content and proof of Aboriginal title. McLachlin J. concurred with the Chief Justice, and added that she was "also in substantial agreement with the comments of Justice La Forest": Delgamuukw, supra note 6, at 94 (para. 209). Given that Lamer C.J.'s judgment was concurred in by a majority of the Court, I am going to confine my discussion to his decision.