Delgamuukw v British Columbia 1997

These appeals involve Aboriginal title where the appellants, all Gitksan or Wet'suwet'en hereditary chiefs, claimed separate portions of 58,000 square kilometres in British Columbia. 

British Columbia counterclaimed for a declaration that the appellants have no right or interest in and to the territory or alternatively, that the appellants' cause of action ought to be for compensation from the Government of Canada.  At trial, the appellants' claim was based on their historical use and "ownership" of one or more of the territories. 

The principal issues on the appeal, some of which raised a number of sub issues, were as follows:  (1) whether the pleadings precluded the Court from entertaining claims for aboriginal title and self government; (2) what was the ability of this Court to interfere with the factual findings made by the trial judge; (3) what is the content of aboriginal title, how is it protected by s. 35(1) of the Constitution Act, 1982, and what is required for its proof; (4) whether the appellants made out a claim to self government; and, (5) whether the province had the power to extinguish aboriginal rights after 1871, either under its own jurisdiction or through the operation of s. 88 of the Indian Act.

The S.C.C. ruled that the appeal should be allowed in part and the cross appeal should be dismissed and order a new trial.  By ordering a new trial it was not necessarily to encourage the parties to proceed to litigation and to settle their dispute through the courts.  As was said in Sparrow, at p. 1105, s. 35(1) "provides a solid constitutional base upon which subsequent negotiations can take place".  Those negotiations should also include other aboriginal nations which have a stake in the territory claimed.  Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Van der Peet, supra, at para. 31, to be a basic purpose of s. 35(1) -- "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown."

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