Delgamuukw v. British Columbia

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Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, also known as Delgamuukw vs. the Queen is a famous leading decision of the Supreme Court of Canada where the Court made its most definitive statement on the nature of aboriginal title in Canada.

The proceedings were started in 1984 by the Gitxsan Nation and the Wet'suwet'en Nation. They bypassed the slow Federal Land Claims process in which the British Columbia Provincial Government would not participate.

They claimed ownership and legal jurisdiction over 133 individual hereditary territories, a total of 58,000 square kilometres of northwestern British Columbia, an area larger than the province of Nova Scotia.

The Gitksan and Witsuwit'en used their oral histories as principal evidence in the case.

The Province insisted that all First Nations land rights in British Columbia were extinguished by the colonial government before it became part of Canada in 1871. Moreover, Chief Justice Allan McEachern ruled that aboriginal rights in general existed at the "pleasure of the crown" and could thus be extinguished "whenever the intention of the Crown to do so is clear and plain." (In the Court of Appeal, the Province changed its position to argue that aboriginal land rights had not been extinguished.) In his explanation for the ruling, McEachern conceded that he was unwilling to seriously consider evidence from oral history, arguing that prior to colonization, aboriginal lives had been "nasty, brutish, and short".

The Supreme Court made no decision on the land dispute, insisting that another trial was necessary. For the first time, however, the Court directly addressed the issue of Aboriginal title.

Aboriginal title is different from land usage rights, as it acknowledges Indigenous ownership of the land and the right to use in ways it had not been used traditionally. On the other hand, it is different from common land ownership, in that it is a Constitutional communal right deeply linked to Indigenous culture. Land governed by Aboriginal title can only be sold to the Federal Government, not to private buyers. The ruling also made important statements about the legitimacy of Indigenous oral history ruling that oral histories were just as important as written testimony.

The Delgamuukw court case has important implications for the history of Canada and for the idea of history itself. In this case the court gave greater weight to oral history than to written evidence. Of oral histories the court said "they are tangential to the ultimate purpose of the fact-finding process at trial -- the determination of the historical truth."

In A Fair Country, John Ralston Saul writes about the broader significance of the court's recognition of oral evidence as carrying as much or greater weight as written evidence, on Canadian society.
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