Aboriginal Title in the Canadian Legal System: The Story of <i>Delgamuukw v. British Columbia</i>

Aboriginal Title in the Canadian Legal System: The Story of Delgamuukw v. British Columbia

Robert T. Anderson, University of Washington School of Law


Canada is grappling with legal issues surrounding indigenous property rights on a scale not seen in the United States since the mid-nineteenth century. Fundamental questions of fairness and justice related to indigenous peoples‘ property rights are in flux in the province of British Columbia–an area the size of the states of California, Oregon, and Washington combined. The recognition of aboriginal rights in the Canadian Constitution in 1982 and recent judicial developments made it clear to the provincial government that nearly the entire province may be subject to aboriginal title claims. Consequently, the aboriginal nations and B.C. government have embarked on a treaty process to resolve conflicting interests, but not in the fashion utilized in the United States. In the U.S., treaties and agreements with Indian tribes generally resulted in the extinguishment of all indigenous property rights in sweeping terms. In addition, payment of compensation pursuant to the Indian Claims Commission process extinguished legal claims to lands taken previously without payment of compensation. To be sure, most of the roughly three hundred tribes in the contiguous forty-eight states reserved homelands, or were moved to other areas set aside for their use and occupancy, and some retained extensive rights to access off-reservation wildlife resources. In British Columbia, however, no earlier treaties ceded aboriginal lands, and the provincial government has recognized that the extinguishment of aboriginal title is unacceptable to aboriginal nations. There are over sixty aboriginal nations engaged in forty-nine sets of negotiations with a stated goal of reconciling aboriginal rights and title with the fact the non-aboriginal people and governments are in Canada to stay.

This chapter explores the foundation beneath the current negotiations. Delgamuukw v. British Columbia [[1997] 3 S.C.R. 1010 (Can.)] is the Canadian equivalent to the seminal cases decided by the United Supreme Court in the early 19th Century regarding indigenous property rights and sovereignty. Delgamuukw required the Court to grapple directly with property rights and the political sovereignty of aboriginal peoples occupying British Columbia at the time the British Crown unilaterally asserted control. The dispute first begs the question of the location of the right and power of the colonial government to assert control over the area and the people within it. The fact that the case was litigated in the Canadian court system answers that question in the sense that it is the colonial power that makes up the common law rules of aboriginal title, and controls interpretation of the aboriginal rights and title provisions in section 35 of the Canadian Constitution Act of 1982. As demonstrated below, the Canadian Supreme Court‘s decision in this case created an atmosphere of respect for aboriginal nations and their pre-existing rights that has the potential to support development of land claims settlement regimes that do not depend on vanquishing the rights of the indigenous population. At the same time, recent history indicates a lack of progress in negotiated settlements that may be due at least in part to rigid approaches set forth by the provincial and federal governments.