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Canadian Supreme Court: Delgamuukw V. British Columbia
Published online by Cambridge University Press: 27 February 2017
Extract
Delgamuukw v. B.C. is a pivotal decision in the evolution of Canadian law on Aboriginal rights.Numerous meetings, round-tables, workshops and conferences have been held to discuss its potential impact on litigation and negotiation.1 Delgamuukw has also served as a vehicle for discussion of more fundamental issues such as the appropriateness of selecting the judicial forum to resolve Aboriginal title claims and the role of legal reasoning in furthering the process of colonization.2 Given the influence of British colonial law on the development of Aboriginal rights jurisprudence in former British colonies and the restrictions placed by evidentiary presumptions originating in English courts, Delgamuukw may also have persuasive precedential value outside of Canada. In particular, the Supreme Court's elaboration of the concept of Aboriginal rights and its discussion of the weight to be given to oral histories may influence other commonwealth courts which face the demanding task of accommodating the rights of colonized peoples within a contemporary political and legal rights regime.3
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- Case Report
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- Copyright © American Society of International Law 1998
References
* [This text was reproduced and reformatted from the text at the Web site maintained by the Supreme Court of Canada and LexUM at <http://www.driot.umontreal.ca/doc/csc-scc/en/rec/html/delgamuu.en.htrnl>(visited on 12/19/97).The text is offered by LexUM and the Supreme Court of Canada for research and public information purposes. The official version of the text is available at [1998] 1 C.N.L.R. 14.
[This Introductory Note was provided by Catherine Bell, Associate Professor of Law, Faculty of Law, University of Alberta, Edmonton, Alberta, Canada.]
1 See e.g. F. Cassidy, ed.Aboriginal Title in British Columbia: Delgamuukw v. the Queen, Conference Proceedings (Oolichan Books and the Institute for Research on Public Policy, 1992). More recent conferences have been held by organizations such as the Legal Education Society of British Columbia and the Native Investment Trade Association.
2 Ibid. See also Asch, M. and Bell, C., “Definition and Interpretation of Fact in Aboriginal Title Litigation” (1994) 19(2) Queen's Law Journal 503.Google Scholar
3 See e.g. Mabou et. al v. State of Queensland (1988), 83 ALR 14 which relied extensively on Canadian law to determine the survival of Aboriginal title in Australia.
4 [1990] 3 C.N.L.R. 177.
5 [1996] 4 C.N.L.R. 177.
6 Supra, note one at 66.
7 R. V. Gladstone [1996] 4 C.N.L.R. 65.
8 Supra, note 1 at 80.
9 Ibid.
10 Ibid, at 62.
11 Ibid, at 63.
12 Supra, note 1 at 41 quoting his reasoning in Van der Peet, supra, note 6.
13 Ibid, at 48.
14 Delgamuukw v.B.C. (1991) 79 D.L.R. 185 (B.C.S.C.) at 452.
15 Section 35(1) of the Constitution Act, 1982, being schedule B of the Constitution Act, 1982 (U.K.), 1982 c.ll provides that the “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.“
1 Sopinka J. took no part in the judgment