Celebrating the 25th Anniversary of the Delgamuukw Decision

In making this claim, we would appeal to your sense of justice and right. We would remind you that it is the duty of the Government to uphold the just claims of all peaceable and law-abiding persons such as we have proved ourselves to be. We hold these lands by the best of all titles. We have received them as the gift of the God of Heaven to our forefathers, and we believe that we cannot be deprived of them by anything short of direct injustice.

— Gitwangak Chiefs, October 1884

On December 11, 1997, the Supreme Court of Canada released its judgment in the appeal in Delgmuukw v. British Columbia. The decision marked a watershed moment in Canadian law. The Court held that Aboriginal title is a legal interest in land held by an Indigenous People based on their occupation of what is now Canada in organized societies prior to the arrival of Europeans. The Court also held that Aboriginal title is an Aboriginal right within the meaning of subsection 35(1) of the Constitution Act, 1982, which has not been extinguished in British Columbia.

The twenty-fifth anniversary of the Delgamuukw decision deserves to be celebrated for the advances it made in Canadian law to the benefit of Indigenous people across the country. It must also be remembered as a testament to the realities faced by the Gitxsan and Wet’suwet’en Nations as a result of the federal and provincial governments’ continued refusal to recognize their title to and jurisdiction over their lands.

The Delgamuukw case arose when Gitxsan and Wet’suwet’en Hereditary Chiefs brought a claim in the Supreme Court of British Columbia on their own behalf and on behalf of their Houses seeking ownership of and jurisdiction over 133 territories collectively comprising about 58,000 square kilometres within what is now northwest British Columbia.

The Supreme Court of BC’s 1992 decision dismissing the plaintiffs’ claim became infamous for its treatment of oral histories, its dismissal of testimony of academic experts, and its invocation of Thomas Hobbes when describing “aboriginal life in the territory” before the arrival of European as, “at best, nasty, brutish, and short.”

The plaintiffs appealed that decision, first to the B.C. Court of Appeal, which dismissed the appeal, and then to the Supreme Court of Canada, which allowed the appeal and ordered a new trial because of what the Court considered to be procedural defects. While the Court declined to grant the relief sought by the plaintiffs, in many respects the judgment was an important victory for the plaintiffs and all Indigenous people in Canada. The majority of the Court held that Aboriginal title cannot be confined to a collection of site-specific rights, but “is the right to the land itself.” The Court also held that oral histories must be respected by the courts: “the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with.”

Louise Mandell, a founding partner of Mandell Pinder, served as counsel for the appellant Gitxsan and Wet’suwet’en Houses from the action’s beginning in the Supreme Court of British Columbia, through the B.C. Court of Appeal, and on through to the Supreme Court of Canada. The Union of BC Indian Chiefs has assembled both the physical and digital materials relevant to Louise’s work for the UBCIC and other First Nations in the Louise Mandell Legal Research Collection. The Collection includes contributions from Louise and other legal experts on the Delgamuukw decision’s legacy.

In a legal analysis written in the weeks following the decision, Louise reflected on the work required to implement the decision:

We require a critical shift of focus in order to implement this judgment. We will probably require federal legislation to protect aboriginal title and to prevent unjustified provincial erosion of rights….We will need new initiatives to support aboriginal peoples as they implement and develop living legal systems, and resume, or restore their relationship with parts of their territory. New legal institutions, both within and outside of aboriginal communities, should be developed to address conflicts in oral histories, overlap disputes, as well as aboriginal/crown/third party reconciliation processes, particularly where new interests in land are to be granted.

The real work ahead is to implement the judgment and the promise to aboriginal peoples it contains.

The following year, Louise drafted an opinion on how the Delgamuukw decision should change Canada’s Specific Claims process:

The approach of the Court in Delgamuukw supports estabIishing an independent body which can supervise the specific claims process, to ensure that the review and negotiation of cIaims are in accordance with the high standards suggested in Delgamuukw. The recommendations of the Royal Commission for an independent body to handle specific claims is in keeping with the direction of the Court in Delgamuukw.

Political cartoonist Don Monet and Gitxsan Elder Dimdiigibuu (Skanu’u/Ardythe Wilson) detailed the goings on at the lower court’s trial in their book Colonialism on Trial. Among the striking artwork are images of the plaintiffs and other community members in the courtroom.

While flawed in many respects, the Delgamuukw decision was and is an important achievement for the legal rights of Indigenous Peoples under Canadian law. Twenty-five years after its pronouncement, we at Mandell Pinder wish to express our gratitude to the Gitxsan and Wet’suwet’en people and their allies for their hard work, dedication, and courage in pursuing their claim for justice.

Other Delgamuukw-related resources:

  • Journalist Ian Gill remembers Delgamuukw Earl Muldoe—the first named plaintiff in the court action—who died on January 3, 2022 at the age of 85.
  • In a 1999 article, Professor John Borrows, Canada Research Chair in Indigenous Law at the University of Victoria, looks at how the Supreme Court’s decision upheld colonial views of Crown sovereignty that undermine Aboriginal land rights:

A detailed inspection of the judgment makes it clear that commentators on both sides have misapprehended the depth of the Court’s reliance on assertions of British sovereignty to ground their analysis of Aboriginal title. If Aboriginal title must be established by reference to “the time at which the Crown asserted sovereignty over the land subject to that title,” as the Supreme Court suggests, it is not easy to see how the decision departs from its colonial heritage.