by Isabel Heaman
A speaker from the Department of Justice gave an overview of the Delgamuukw decision, handed down in the Supreme Court of Canada, Dec. 11, 1997, in a document summarizing the main points in an easy-to-read format.
The case itself was not decided but sent back for retrial in a lower court. Negotiation was urged in preference to litigation to resolve outstanding issues Aboriginal title was defined as the right to exclusive use and occupation of the land by a community, if certain conditions are met. Guidance was given on various constitutional implications such as extinguishment and infringement.
Aboriginal title can be invoked in areas of non-traditional use such as oil and gas leases, though with some restrictions. For example, if aboriginal title is established on the basis that the land was traditionally used for hunting, the land cannot be strip-mined or paved over.
Oral history: The provincial court judge had erred in not considering it in his judgment.
Extinguishment: The province does not have the jurisdiction to extinguish title. The BNA Act in Section 91 gave the federal parliament exclusive legislative jurisdiction for Indians and land reserved for Indians, which includes lands burdened by aboriginal title.
Aboriginal title can only be transferred, sold or surrendered to the crown. To establish aboriginal title, the land must have been occupied prior to British sovereignty in 1846, and continuity of occupation is an important factor.
Aboriginal rights may be infringed with justification to further the objectives of conservation and public safety.
The decision that land reserved for Indians includes not just reserves but land where aboriginal title exists leaves open what provincial laws apply. Not all provincial laws apply on reserves. In general, the solution is to adopt Section 88 which makes these laws generally applicable.