Cathy Narcisse First Published in Bridge River
Lillooet News Dec 2003
USLCES Home page.
December 11, 2003 marks the sixth year anniversary since the Supreme Court of Canada’s
decision on the continued existence of Aboriginal title in BC. This article will commemorate
the anniversary by providing a broad overview of the Court decision.
The first aboriginal title case in BC, better known as the Calder case, advanced by the
Nisga’a began in 1968 and was eventually dealt with by the Supreme Court of Canada in 1973.
The outcome of the Nisga’a case left the question of aboriginal title open. This, in itself,
was quite a momentous outcome as the government and general population were quite confident
that aboriginal title in BC had been effectively extinguished through colonial and provincial
legislation.
Aboriginal title was raised again through the Supreme Court of Canada with the Delgamuukw
case when the Gitxsan and Wet’suwet’en Hereditary Chiefs filed a lawsuit against the
province of BC in 1984. The case dealt with the ownership and jurisdiction over 58,000
square kilometres in northern BC.
Thirteen years later, on December 11, 1997, the trial ended and the Supreme Court of Canada
unanimously held that aboriginal title continues to exist, that it holds within it the
right to the land itself, the right to exclusively use and occupy the land including the
right to choose how the land can be used, and further, that aboriginal title has an
“inescapable economic component.
The court did not rule specifically on the Gitxsan and Wet’suwet’en title due to an error
by the initial BC trial judge in not accepting the oral history evidence that had been
provided.
Nevertheless, the Court did address a number of issues and clarified important principles that
relate to aboriginal title. These include the significance of oral history as proof for
aboriginal title, as well as a clear definition of what aboriginal title is, the scope of
constitutional protection for aboriginal title and the limitations on the provincial power to
extinguish aboriginal title.
The Court found that provincial governments do not have, nor have they had in the past, the
jurisdiction to enact laws that relate to aboriginal rights such as aboriginal title.
The Court affirmed that aboriginal title is a right entrenched and protected by section 35 of
the Constitution Act, 1982.
In its conclusion, the Court encouraged that the issue of aboriginal title be based upon
balanced negotiation rather than further legal action. The Court stated that, “the Crown is
under a moral, if not legal, duty to enter into and conduct those negotiations in good faith.
When the highest court of the land reaches a decision, the ruling is generally implemented quickly. In the six years since this substantial Supreme Court of Canada ruling, progress in addressing and implementing it has been non-existent.
As a result, on this sixth anniversary of the Delgamuukw decision, a majority of First Nations in BC have file legal writs that could see the issue of aboriginal title back in the courts.
Cathy Narcisse First Published in Bridge River
Lillooet News Dec 2003USLCES Home page.