Delgamuukw v British Columbia

Delgamuukw articulated the content of Aboriginal title and the role of oral histories in proving it. Title is sui generis, includes the right to exclusive use and occupation for a variety of purposes, but cannot be used in ways inconsistent with the group's attachment to the land.

The Gitksan and Wet'suwet'en peoples claimed Aboriginal title and self-government over 58,000 sq km of northwestern BC. The trial judge had largely dismissed the claim; the BC Court of Appeal varied.

(1) What is the content of Aboriginal title? (2) How is it proved? (3) What weight should oral histories carry?

New trial ordered. Framework articulated.

Aboriginal title: (a) is sui generis — distinct from common-law fee simple; (b) includes the right to exclusive use and occupation for a variety of purposes; (c) is collective, held by the community; (d) is alienable only to the Crown; (e) is subject to an inherent limit — uses must not be irreconcilable with the group's attachment to the land. Test for proof: (1) the land must have been occupied prior to sovereignty; (2) there must be continuity between present and pre-sovereignty occupation (where occupation is presently asserted); (3) occupation must have been exclusive at sovereignty.

Lamer CJ held that oral histories must be placed on equal footing with documentary historical evidence. Trial courts must adapt evidentiary rules to admit and weigh Indigenous oral evidence. Infringement of title is justifiable on the Sparrow framework, with consultation as a key element.

The constitutional architecture of Aboriginal title. Set up the Tsilhqot'in declaration. Validated oral history as evidence — a major procedural development. Cemented the inherent limit doctrine.

Delgamuukw v British Columbia, [1997] 3 SCR 1010, 1997 CanLII 302 (SCC).

Lamer CJ, La Forest J, L'Heureux-Dubé J, Sopinka J, Cory J, McLachlin J, Major J