Delgamuukw Decision of the Supreme Court of Canada, 1997

… a core concept in Governance and Institutions and Atlas100

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Concept description

The Delgamuukw Decision of the Supreme Court of Canada (1997, reference below, link to decision on right) deals with the definition, the content, and the extent, of Aboriginal title.

Gérald Beaudoin (reference below) summarizes the case as follows:

“The Delgamuukw case (1997) concerned the definition, the content and the extent of aboriginal title. The Supreme Court observed that aboriginal title constituted an ancestral right protected by Section 35(1) of the Constitution Act, 1982. Aboriginal title is a right relating to land sui generis, held communally and distinct from other ancestral rights. Aboriginal title is, therefore, in substance, a right to territory and encompasses exclusive use and occupation. The native people concerned must tender evidence of the existence of aboriginal title in respect of the following requirements: “(i) they must have occupied the territory before the declaration of sovereignty; (ii) if present occupation is invoked as evidence of occupation before sovereignty, there must be a continuity between present occupation and occupation before the declaration of sovereignty; (iii) at the time of declaration of sovereignty, this occupation must have been exclusive.” It is not necessary to prove a perfect continuity; the demonstration of a substantial maintenance of the bond between the people concerned and the territory is sufficient. In this respect the Supreme Court held that oral evidence could be admitted as proof. The court also ruled that aboriginal lands could not be used in a manner that was inconsistent with aboriginal title: if aboriginals wished to use the lands in ways that aboriginal title did not permit, then the lands must be surrendered. Aboriginal title cannot be transferred to anyone other than the Crown.”

Sources

Supreme Court of Canada, Delgamuukw v. British Columbia, Supreme Court Judgments, at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1569/index.do, accessed 2 October 2016.

Gérald Beaudoin (2013), Delgamuukw Case, Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/delgamuukw-case/, accessed 2 October 2016.

Topic, subject and Atlas course

Indigenous Governance in Governance and Institutions and Atlas100.

Page created by: Ian Clark, last modified 2 October 2016.

Image: Supreme Court of Canada, Delgamuukw v. British Columbia, Supreme Court Judgments, at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1569/index.do, accessed 2 October 2016.