[1997] 3 S.C.R. Delgamuukw v. British Columbia 1010
Delgamuukw, also known as Earl Muldoe, suing on his own behalf
and on behalf of all the members of the Houses of Delgamuukw and
Haaxw (and others suing on their own behalf and on behalf
of thirty-eight Gitksan Houses and twelve
Wet'suwet'en Houses as shown in Schedule 1) Appellants/ Respondents on the cross-
appeal
v.
Her Majesty The Queen in Right of
the Province of British Columbia Respondent/ Appellant on the cross-appeal
and
The Attorney General of Canada Respondent
and
The First Nations Summit,
the Musqueam Nation et al. (as shown in Schedule 2),
the Westbank First Nation,
the B.C. Cattlemen's Association et al. (as shown in Schedule 3),
Skeena Cellulose Inc.,
Alcan Aluminum Ltd. Interveners
Indexed as: Delgamuukw v. British Columbia
File No.: 23799.
1997: June 16, 17; 1997: December 11.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, 1 Cory, McLachlin and
Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Aboriginal rights -- Aboriginal land title -- Claim made for large
tract -- Content of aboriginal title -- How aboriginal title protected by s. 35(1) of
Constitution Act, 1982 -- What required to prove aboriginal title -- Whether claim to self-
government made out -- Whether province could extinguish aboriginal rights after 1871,
either under own jurisdiction or through the operation of s. 88 of the Indian Act
(incorporating provincial laws of general application by reference) -- Constitution Act,
1982, s. 35(1) -- Indian Act, R.S.C., 1985, c. I-5, s. 88.
Constitutional law -- Aboriginal rights -- Aboriginal land title -- Evidence -- Oral history
and native law and tradition -- Weight to be given evidence -- Ability of Court to
interfere with trial judge's factual findings.
Courts -- Procedure -- Land claims -- Aboriginal title and self-government -- Claim
altered but no formal amendments to pleadings made -- Whether pleadings precluded the
Court from entertaining claims.
The appellants, all Gitksan or Wet'suwet'en hereditary chiefs, both individually and on
SNIPPETS:
Delgamuukw, also known as Earl Muldoe, suing on his own behalf and on behalf of all the
the B.C. Cattlemen's Association et al., Skeena Cellulose Inc., Alcan Aluminum Ltd.
Constitutional law -- Aboriginal rights -- Aboriginal land title -- Claim made for large
35of Constitution Act, 1982 -- What required to prove aboriginal title -- Whether claim to
88 of the Indian Act (incorporating provincial laws of general application by reference) --
Constitutional law -- Aboriginal rights -- Aboriginal land title -- Evidence -- Oral history
Courts -- Procedure -- Land claims -- Aboriginal title and self-government -- Claim altered
The appellants, all Gitksan or Wet'suwet'en hereditary chiefs, both individually and on
Their claim was originally for "ownership" of the territory and "jurisdiction" over it.
British Columbia counterclaimed for a declaration that the appellants have no right or
the appellants' claim was based on their historical use and "ownership" of one or more of the
The trial judge did not accept the appellants' evidence of oral history of attachment to the
He dismissed the action against Canada, dismissed the plaintiffs' claims for ownership and
The oral histories were used in an attempt to establish occupation and use of the disputed
Another dimension of aboriginal title is its sources: its recognition by the Royal
The exclusive right to use the land is not restricted to the right to engage in activities
If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit,
The only limitation on this principle might be that the land not be used in ways which are
"First Nations Self-Government and the Borders of the Canadian Legal Imagination",
Arthur Pape, Harry A. Slade, Peter Hogg and Jean Teillet, for the intervener the First
Since aboriginal title was not being claimed in those earlier appeals, it was unnecessary to
the Gitksan and Wet'suwet'en are not the only people living in the claimed territory.
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