Delgamuukw Guide for New Relationship
by Wally Braul - ARC (Victoria)
March 1998
Let us face it, we are all here to stay. With those wise words, the Supreme Court of Canada's Delgamuukw decision sent a clear message to the Crown to embark on new relations with First Nations. The decision is unequivocal. It removes any doubt about the presence and nature of aboriginal title and aboriginal rights. It is equally clear that the reality of aboriginal title should compel new negotiations. The Chief Justice stated that the Crown is under a moral if not a legal duty to enter into and conduct those negotiations in good faith.
The Long Route to Justice
The case history is a lesson in persistence in the face of a seemingly inert legal system. The plaintiffs, the Gitksan and Wesuweten hereditary chiefs of northwestern British Columbia, started their action in the mid-1980s. The trial court heard months of oral evidence about the First Nations government, culture and economy. The chiefs relied on evidence of traditional songs, feasts and legends to demonstrate their connection to the land. This evidence, the chiefs argued, pointed to their unextinguished ownership and jurisdiction over a large tract of land. 
The 1991 MacEachren decision dismissed virtually all of the chiefs' arguments. The trial judge did not accept the oral history B this evidence, the trial judge said, did not meet the common law's notion of objective proof of accuracy. The presumption was that only English-style documentation would suffice. To the extent that self-government and aboriginal title might have existed, the trial judge said, it was extinguished decades ago by colonial legislation.
The chiefs appealed to the British Columbia Court of Appeal, which emphasized that the Crown should consult with First Nations when making resource decisions. This direction was nothing new, as it reflected other decisions that the Crown has a constitutionally based fiduciary duty to deal honestly with First Nations.
The chiefs were not satisfied with the Court of Appeal view that aboriginal rights were limited to the right to be consulted. They appealed to the Supreme Court of Canada, and found a receptive judiciary.
Technically, the Supreme Court of Canada sent the matter for retrial. This part of the decision came about because the chiefs, in the Supreme Court of Canada proceedings, changed their pleadings to focus on aboriginal title and self-government, and departed from their reliance on ownership and jurisdiction used in the lower courts. That is, the evidence has yet to be tried in light of the aboriginal title and self-government arguments. But one must wonder whether there ever will be a new trial. The Court provided considerable guidance for how to determine aboriginal title and self-government B guidance which could serve land claims negotiators well. The Court made it very clear that aboriginal issues are best settled in negotiations, and accordingly provided numerous principles to work with. Some of these principles are discussed below.
Oral Evidence of Traditions Can Establish Aboriginal Title
The Supreme Court of Canada decision soundly rejected the trial judge's approach to attributing little if any weight to the oral evidence of elders. The Court ruled that oral histories can be used to establish aboriginal title, saying that had MacEachren properly considered the oral histories, his conclusions Amight have been different.
As a general principle, the Court stated that aboriginal title encompasses the right to exclusive use and occupation of the land subject to that title. The First Nation may use such lands for a broad variety of purposes, purposes which Aneed not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures. This view allows First Nations to establish aboriginal title on modern and contemporary uses. The Supreme Court of Canada, unlike the trial judge, stated that aboriginal title can be based not only on tradition going back to the time of contact, but also use and occupation in a contemporary sense and incorporates present day needs. In line with this approach, the Court stated that aboriginal title encompasses mineral rights and lands which can be exploited, Aeven if such use is not a traditional one.
Aboriginal Title Is Part of the Common Law
The Court did not invent new concepts, but rather drew its reasoning from Canada's common law and constitutional law traditions. The decision is, on careful review, a logical extension of other aboriginal considerations woven into the fabric of our common law and constitutional system. The common law, according to the Court, recognizes aboriginal occupation as proof of possession and systems of aboriginal law which pre-existed the assertion of British sovereignty. The slogan One Law For All used by groups to resist aboriginal rights now takes on a very different meaning.
Aboriginal title at common law, the Court went on to say, was recognized well before 1982 and is accordingly protected in its full form by s. 35(1) of the Constitution Act (which was enacted in 1982). At the same time, the constitutional protection of common law aboriginal rights does not preclude other forms of constitutionally-protected aboriginal rights such as those arising from treaties.
Clarification on Aboriginal Rights and Title
The Court sought to clarify the terms aboriginal rights and aboriginal title. In summary, the Court stated that aboriginal rights fall along a spectrum with respect to their degree of connection with the land. At the one end are those aboriginal rights which are practices, customs and traditions integral to the distinctive aboriginal culture of the group claiming the right but where the use and occupation of the land where the activity is taking place is not sufficient to support a claim of title to the land. In the middle are activities which, out of necessity, take place on land and indeed, might be intimately related to a particular piece of land. Although an aboriginal group may not be able to demonstrate title to the land, it may nevertheless have a site-specific right to engage in a particular activity. At the other end of the spectrum is aboriginal title itself which confers more than the right to engage in site- specific activities which are aspects of the practices, customs and traditions of distinctive aboriginal cultures. Site-specific rights can be made out even if title cannot. Because aboriginal rights can vary with respect to their degree of connection with the land, some aboriginal groups may be unable to make out a claim to title, but will nevertheless possess site-specific aboriginal rights that are recognized and affirmed by the constitution.
The Court also affirmed that non- aboriginal use of lands having aboriginal title are parasitic. Reconciling non-aboriginal uses and aboriginal title is the object of section 35(1) of the Constitution Act B that provision calls for the recognition and affirmation the prior presence of aboriginal peoples on the lands which have aboriginal title, the Court stated. This exercise necessarily requires consideration of the historic aboriginal occupation of land and prior social organization and distinctive cultures aboriginal peoples on that land.
Aboriginal Rights are Contextual
The Court clearly indicated that land rights negotiations should not be subject to one-size fits all approach, as convenient as this might be for the Crown. The Court stated that determining the existence of aboriginal title or rights is highly contextual. Context is important in two ways. First, a First Nation may assert its rights to occupy and possess ancestral lands in a general sense: it may assert a general claim to occupy and possess vast tracts of territory to use the land for a variety of activities related to the aboriginal society's habits and mode of life. Second, a First Nation may assert that it has a discreet right to engage in an aboriginal activity in a particular area, a use, for example, which has continued from pre-contact times of a particular area for a particular purpose. In either case, it is clear that resolution of land rights issues will require a patient deliberation of site-specific history and careful consideration of oral histories. Simplistic formulas for settling land claims will have no place in either judicial or treaty deliberations.
Aboriginal Rights May Be Infringed B But in a Limited Way
The notions of aboriginal rights and title are not absolute. They may be infringed by the Crown. The Court, however, set two preconditions to infringement. The infringement must not only be necessary for a compelling and substantial legislative objective (eg. agriculture, forestry, mining, environmental protection) but also must be consistent with the special fiduciary relationship between the Crown and the aboriginal peoples. That is, as the Court noted, the Crown's right to determine land use does not go so far as to allow it to destroy the ability of the land to sustain future generations of aboriginal peoples. The fiduciary relationship between the Crown and aboriginal peoples calls for involvement of aboriginal peoples in decisions taken with respect to their lands B this involvement appears to require something more than merely the right to be consulted. In fact, the court stated that There is always a duty of consultation and, in most cases, the duty will be significantly deeper than mere consultation. The Court decision arguably calls for the redesign of land use decision-making as an essential first step in a new era of First Nation-Crown relations.
The court went on to suggest that decision-making should include the question of compensation. The court stated that because lands held pursuant to aboriginal title have an inescapable economic component, fair compensation will ordinarily be required when aboriginal title is infringed.
An additional constraint on infringement is that a provincial law of general application cannot extinguish aboriginal rights. The Court cautioned that legislation which purports to extinguish or infringe on aboriginal title or rights can only be effected by specific legislation having the clear and plain intent. Even if it has such intent, the provincial legislation cannot undermine federal jurisdiction under the Constitution Act (notably the federal power respecting matters Indianness under section 91(24)).