Thursday, October 01, 2020

Research: Delgamuukw/Gisday'wa

On December 11, 1997 the Supreme Court of Canada released its decision in Delgamuukw v. British Columbia. This decision marked the first time in Canadian legal history, that the Supreme Court of Canada ruled that Aboriginal Title exists in law.

Following the decision, the Delgamuukw/Gisdaywa National Process was created and organizers commissioned leading legal scholars in Canada to prepare these research papers on the critical questions arising from the Delgamuukw decision.

The Extinguishment of Aboriginal Title in Canada

Kent McNeil

Canadian courts have held that Aboriginal title is extinguishable by voluntary agreement, and that it could also have been extinguished unilaterally by legislation prior to receiving constitutional protection in 1982. This paper examines both methods of extinguishment. It suggests that extinguishment by agreement could only occur if that were permissible by the law of the Aboriginal nation in question. Extinguishment by legislation would depend on the legislative body having the constitutional authority to extinguish Aboriginal title. In either case, the intention to extinguish would have to be clear and plain. The paper concludes with detailed analysis and criticism of the Ontario Court of Appeal’s recent decision in the Chippewas of Sarnia case, where the Court relied on judicial discretion to refuse a remedy for wrongful taking of Chippewa lands.


Delgamuukw and Modern Treaties

Gordon Christie

In his brilliant and insightful essay, “Delgamuukw and Modern Treaties,” Professor Gordon Christie of Osgoode Hall Law School, argues that the potential gains arising out of the Delgamuukw judgement must be approached very carefully by Aboriginal peoples, particularly within the context of a situation where the possibilities for reaching a real reconciliation between the Crown and First Nations are quite limited. Christie notes that if “an Aboriginal people feels compelled to participate in the modern treaty process, they must work especially hard to bring into the process those doctrine and principles from Delgamuukw they can properly ‘strategize,’ to drive the governments of Canada into moving––however small the distance––towards respecting the deep connection these peoples have had, and continue to have, to their lands.”


James Douglas Meet Delgamuukw: The Implications of the Delgamuukw Decision on the Douglas Treaties

Robert Morales

Robert Morales in his paper, “James Douglas Meet Delgamuukw: The Implications of the Delgamuukw Decision on the Douglas Treaties,” focuses on the meaning that Delgamuukw can have for the Treaty First Nations of southern Vancouver Island. The Douglas Treaties, Morales notes, like most other First Nation treaties in Canada, have not been honoured by the Crown, even in the light of a narrow reading of their terms. Again, Morales argues that the Delgamuukw decision has strengthened the hand of the Douglas Treaty Nations. When the situation of the Douglas Treaty Nations is considered, not only in the light of Delgamuukw, but also in the light of the Marshall judgements of 1999, it is clear that the Douglas Treaty Nations like other treaty First Nations in Canada are in a very strong legal position. This is one of the implications of the Delgamuukw judgement which the Crown will have to deal with in British Columbia as well as elsewhere in the years to come.


The Effect of Delgamuukw on Treaties in Ontario

Bev Jacobs

In “The Effect of Delgamuukw on Treaties in Ontario,” Bev Jacobs notes that “in Ontario….in every treaty, there are two interpretations of what these treaties intended: the Aboriginal perspective and the Crown’s perspective.” She adds that: “All Aboriginal nations have maintained an oral history of their relationships with the Crown whereas the Crown has maintained a written history and a ‘paper trail’ to confirm their intentions. What is missing in these ‘paper trails’ is the oral agreements and the oral interpretations of the written treaties that were made to Aboriginal nations when these treaties were being negotiated.” On this basis, Jacobs concludes that there is every reason to assume that Treaty First Nations in Ontario have unextinguished Aboriginal title and that the Delgamuukw decision, in this sense, has great meaning for them.


Delgamuukw and the Numbered Treaties

Sheldon Cardinal

A good deal of the research of the Delgamuukw / Gisday’wa National Process has been focussed on treaties and treaty making. Sheldon Cardinal in his research paper on “Delgamuukw: The Implications for Treaty First Nations With Numbered Treaties,” concludes that “the sun has not stopped shining, the rivers have not stopped flowing and the grass has not stopped growing”: the hunting, fishing and trapping rights as well as other rights of treaty First Nations still continue. The federal government, Cardinal asserts, has seriously breached its obligations to Treaty First Nations. Accordingly, he argues, it should provide financial compensation for illegitimately restricting treaty rights.


Delgamuukw and Treaties: An Overview

John Borrows

John Borrows in his Delgamuukw/Gisday’wa research paper, “Delgamuukw and Treaties: An Overview,” looks at many of the issues surrounding Delgamuukw decision and treaty making in Canada. He concludes that the situation is by no means a simple one and that treaty relationships between First Nations and the Crown are being diminished and strengthened simultaneously. First Nations, he argues, must be aware of how Delgamuukw can be used in order to strengthen treaty relations and to build better treaties. They also need to be aware of some of the pitfalls involved in relation to what is fundamentally a colonial legal system.


The Implications of Delgamuukw for Economic Development on Aboriginal Title Lands

Kimberly Thomas

Kimberly Thomas, of Aird and Berlis in Toronto, has written an informative and useful essay on “The Implications of Delgamuukw for Economic Development on Aboriginal Title Lands.” Thomas explores a variety of opportunities which Delgamuukw presents for enhancing the economic positions of First Nations peoples.


The Onus of Proof of Aboriginal Title

Kent McNeil

In an innovative and creative essay, “The Onus of Proof of Aboriginal Title,” Professor Kent McNeil of Osgoode Hall Law School takes a look at the ways in which First Nations can engage in on-the-ground activities which put the onus of proof regarding title on the Crown. This essay has already drawn a great deal of attention. It is one that speaks to the minds and hearts of First Nations in their communities and on their territories across the country, and it provides an excellent example of how scholarly research regarding legal matters can be of practical use to First Nations as they seek to achieve their most fundamental goals.


The Proof of Aboriginal Title

Sakej Henderson

Professor Sakej Henderson of the University of Saskatchewan looks more generally at matters surrounding questions regarding the proof of Aboriginal title in the legal system. In a far-ranging D/GNP paper on “The Proof of Aboriginal Title.” Professor Henderson addresses a theme which runs through much of the Delgamuukw / Gisday’wa National Process research: in the implications of the colonial roots of Crown law.


Oral History:Practical Considerations for Communities in Light of the Delgamuukw Decision

Darwin Hanna

Darwin Hanna, in “Oral History: Practical Considerations for Communities in Light of the Delgamuukw Decision,” expands on a number of the issues that Professor Borrows looks at, particularly focussing on the research methods Aboriginal communities may consider using for the documentation of their oral histories. Taken together, Hanna and Borrows’ Delgamuukw / Gisday’wa National Process papers will be enormously helpful to First Nations as they seek to establish their rights in a legal manner.


Listening for Change: The Courts and Oral Tradition

John Borrows

Closely connected to the meaning of Aboriginal title within the context of the Canadian legal and political systems are issues regarding the proof of title in the courts. If First Nations seek to assert Aboriginal title through the courts, on first reading of the Delgamuukw judgement, the onus of proof is on them to establish that title exists. Building on the Van der Peet judgement, Delgamuukw further opens up the possibility that oral evidence regarding tradition and history can help First Nations support their assertions of Aboriginal title in the courts. In “Listening for Change: The Courts and Oral Tradition,” John Borrows explores the issues and difficulties around the use of oral history by First Nations in the court system and points to the kinds of changes which will have to take place to fully facilitate this much needed revolution in Canadian legal procedure.


The Post-Delgamuukw Nature and Content of Aboriginal Title

Kent McNeil

Critical to an appreciation of the Delgamuukw judgement is an understanding of Aboriginal title. Kent McNeil has addressed this important topic in a groundbreaking Delgamuukw / Gisday’wa National Process paper entitled: “The Post-Delgamuukw Nature and Content of Aboriginal Title.” This article explores many aspects of Aboriginal title and, in particular, it identifies the significance of those aspects of Aboriginal title which reflect and can create the possibilities of a greater degree of self-government on the part of First Nations peoples.


Delgamuukw and Compensation Issues

Albert Peeling

When the Crown unjustifiably infringes on Aboriginal title, Aboriginal people have the right, both morally and legally, to expect that the Crown will compensate them for such infringements. Questions with regard to compensation and legal issues relating to it are the subject of Albert Peeling’s paper on “Delgamuukw and Compensation Issues.” This essay will be of a special relevance to First Nations who are seeking to address practical issues regarding the ways in which they can counter the Crown’s failure to respect their constitutionally protected, recognized and affirmed rights to Aboriginal title. The matter of compensation is directly related to the inescapable economic content of Aboriginal title, and the benefits of compensation can be used to enhance the ability of First Nations to properly make use of their Aboriginal title lands.


It’s All a Farce Anyway’: Deconstructing the British Columbia Treaty Process

Taiaiake Alfred

In “‘It’s All a Farce Anyway’: Deconstructing the British Columbia Treaty Process, A First Nations Survival Strategy,” Professor Taiaiake Alfred of the University of Victoria argues that Delgamuukw has many limitations with regard to the way in which it deals with Indigenous title. Even so, he suggests, the judgement has had a telling effect on the British Columbia treaty process. He notes that the judgement could have major practical implications for the process in the sense that it should encourage the parties to engage more readily in useful interim measures and to discard “the land selection model” which is built upon the notion of extinguishment. Taiaiake Alfred is not optimistic that any of these practical possibilities will emerge, and he strongly advises First Nations to abandon the British Columbia treaty process.



The papers below are offered as independent perspectives concerning the Delgamuukw decision and were not commissioned as part of the Delgamuukw / Gisday'wa National Process

Stuart Rush - Rush, Crane, Guenther & Adams | The Fiduciary Obligations in Delgamuukw [DOWNLOAD PDF]

Joanne R Lysysk- Blake Cassels & Graydon | Compensation after Delgamuukw [DOWNLOAD PDF]

Albert C. Peeling - Azevedo & Peeling | Provincial Jurisdiction After Delgamuukw [DOWNLOAD PDF]