|Staff of the Parliamentary Research Branch
(PRB) of the Library of Parliament work exclusively for Parliament conducting research and
providing analysis and policy advice to Members of the Senate and House of Commons and to
parliamentary committees on a non-partisan and confidential basis. The documents on
this site were originally prepared for general distribution to Canadian Parliamentarians
to provide background and analysis of issues that may arise in the course of their
Parliamentary duties. They are made available here as a service to the public. These
studies are not official Parliamentary or Canadian government documents. No legal or other
professional advice is offered by the authors or the Parliamentary Research Branch in
presenting its publications or in maintaining links to other Internet sites.
TABLE OF CONTENTS
In December 1997, the Supreme Court of Canada issued a groundbreaking ruling containing its first definitive statement on the content of Aboriginal title in Canada. The decision in Delgamuukw v. British Columbia(1) also describes the scope of protection afforded Aboriginal title under subsection 35(1) of the Constitution Act, 1982; defines how Aboriginal title may be proved; and outlines the justification test for infringements of Aboriginal title.
This paper provides a summary review of selected noteworthy findings in the Supreme Court decision on Aboriginal title. The review is preceded by background information on common law Aboriginal title and the constitutionalization of Aboriginal rights by subsection 35(1) of the Constitution Act, 1982, concepts that meet in the Delgamuukw ruling. The prior judgments of the British Columbia courts are also briefly canvassed.
British and Canadian courts have sought to define the nature of the legal interest in the land of Canadas Aboriginal peoples for many years. Under now long-established general principles developed in the case law, the Aboriginal interest in land may be surrendered or alienated only to the federal Crown, at which point it passes to the provincial Crown (assuming surrender outside the territories) as an unencumbered Crown title.
Of more immediate relevance, the courts had, by the 1970s, begun to acknowledge the existence of Aboriginal legal rights in the land other than those provided for by treaty or statute. In particular, the 1973 decision of the Supreme Court of Canada (the Court) in Calder v. The Attorney General of British Columbia(2) ruled that "Indian title"(3) was a legal right, independent of any form of enactment, and rooted in Aboriginal peoples historic "occupation, possession and use" of traditional territories. As such, title existed at the time of first contact with Europeans, whether or not it was recognized by them.
Although some subsequent case law provided a certain amount of guidance as to how the existence of this common law Aboriginal title might be established,(4) it was less than fully informative as to the scope or content of title. In the 1984 case Guerin v. The Queen,(5) four members of the Court described it as a unique interest in land "best characterized by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians behalf when the interest is surrendered." In its 1988 decision in Canadian Pacific Ltd. v. Paul,(6) the Court affirmed that its analysis of Aboriginal title to that point led to the "inescapable conclusion that the Indian interest in land is truly sui generis [the only one of its kind]. It is more than the right to enjoyment and occupancy, although, it is difficult to describe what more in traditional property law terminology."
The constitutionalization of Aboriginal rights by subsection 35(1) of the Constitution Act, 1982 created a new legal framework for addressing longstanding Aboriginal claims, including claims to Aboriginal title. Because the provision recognizes and affirms, but does not define, the "existing Aboriginal and treaty rights" of the Aboriginal peoples of Canada, the task of determining the nature and scope of these rights has fallen to the courts.(7)
The Courts section 35 Aboriginal rights decisions prior to Delgamuukw largely involved Aboriginal fishing rights. General interpretive principles stated in the Courts groundbreaking 1990 decision, Sparrow v. R.,(8) and refined in subsequent rulings through 1996(9) include the following:
As outlined below, the land issues raised in the Delgamuukw case provided an opportunity for the Court to apply and adapt these principles to Aboriginal title as a "distinct species" of constitutional Aboriginal right.
In 1984, 35 Gitxsan and 13 Wetsuweten Hereditary Chiefs instituted proceedings against the Province of British Columbia. They claimed, both individually and on behalf of their respective Houses, ownership (unextinguished Aboriginal title) and resulting jurisdiction (entitlement to govern by Aboriginal laws) over separate portions of territory in northwest British Columbia totalling 58,000 square kilometres. The plaintiffs acknowledged the underlying title of the Crown to these lands, but asserted that their claims constituted a burden upon that title. Alternatively, the plaintiffs claimed unspecified Aboriginal rights to use the territory. Compensation for lost lands and resources was also sought.
The province counter-claimed, arguing that the plaintiffs had no right or interest in the land, and that their claim for compensation ought to be against the federal government.
In March 1991, Chief Justice McEachern of the Supreme Court of British Columbia issued a sweeping and highly controversial ruling(11) dismissing the plaintiffs claims to Aboriginal title, self-government and Aboriginal rights in the territories at issue. Reduced to its essence, the 400-page decision:
Under Chief Justice McEacherns reasoning, the Aboriginal title and Aboriginal right of self-government claimed by the plaintiffs had been erased over a century previously, and as such were precluded from qualifying as "existing" rights under subsection 35(1) of the Constitution Act, 1982. His ruling was seen by many as seriously at odds with Supreme Court of Canada rulings dealing with constitutional Aboriginal and treaty rights, and was also criticized for its apparent bias in both tone and analytic approach.(13)
The scope of the trial courts negative findings was somewhat attenuated by the June 1993 decision of the British Columbia Court of Appeal.(14) In it, the five members of the appellate panel were unanimous in rejecting McEachern J.s finding of "blanket extinguishment" of all the plaintiffs Aboriginal rights by colonial or provincial enactments,(15) but differed as to the merits of other elements of his decision.
In the end, a 3-2 majority of the Court of Appeal allowed the appeal only on the above point, issuing a declaration that the Gitxsan and Wetsuweten "have unextinguished non-exclusive aboriginal rights, other than a right of ownership or a property right," which were protected by the common law and, since 1982, by subsection 35(1) of the Constitution Act, 1982, in a large portion of the area claimed. The precise scope, content and consequences of these rights of use and occupation were not defined by the majority, which referred those issues back to the trial judge for determination, while recommending that the parties resolve their differences through consultation and negotiation. All other aspects of the plaintiffs claim were dismissed. In the view of the dissenting justices, on the other hand, the plaintiffs Aboriginal rights to Aboriginal title or to land and their rights of self-government had not been extinguished by the assertion of either British or Canadian sovereignty. They, too, urged settlement of outstanding issues by negotiation and political accommodation.
In March 1994, the Gitxsan and Wetsuweten and the Province of British Columbia were granted leave to appeal and cross-appeal the decision of the British Columbia Court of Appeal to the Supreme Court of Canada. The parties then requested and obtained an adjournment of proceedings to enable them to seek a negotiated treaty settlement. In February 1996, the Province of British Columbia suspended negotiations with the Gitxsan owing to "fundamental differences ... over aboriginal rights." The provinces Minister of Aboriginal Affairs considered there was "little chance of progress in negotiating with the Gitxsan without further direction from the Supreme Court of Canada."(16) Subsequent to this breakdown, litigation was resumed. Despite some progress in their negotiations with the province to that point, the Wetsuweten remained parties to the proceedings.
The Court heard arguments in the case on 16 and 17 June 1997 and released its decision on 11 December 1997. Although the six members of the Court taking part in the judgment(17) were unanimous in their conclusions, distinct sets of reasons issued by Lamer C.J. (Cory, McLachlin and Major JJ. concurring) and La Forest J. (LHeureux-Dubé J. concurring, with McLachlin J. in substantial agreement) differed somewhat as to the appropriate methodology to be used for proving Aboriginal title. Only the former set of reasons is considered below.
Lamer C.J. considered that the Court was precluded from dealing with the merits of the Gitxsan and Wetsuweten claims for two reasons. First, the individual claims originally brought by each House had been amalgamated into two communal claims, but had not been formally amended. Because this procedural defect was prejudicial to the provinces rights as a litigant, the correct remedy was a new trial.
Second, a new trial was necessary so that the complex and voluminous factual evidence in the case could be assessed in accordance with principles having specific application to Aboriginal claims such as those of the Gitxsan and Wetsuweten.(19) In essence, these principles require trial courts to adapt the rules of evidence in light of difficulties of proof intrinsic to the adjudication of Aboriginal claims,
Lamer C.J. found that the trial judges treatment of the various forms of oral history presented by the plaintiffs to prove traditional occupation and use of the territories claimed had failed to satisfy these principles which, as he noted, had been formulated subsequent to the trial decision.(20)
The Chief Justice disagreed with both parties characterization of Aboriginal title, that of the Gitxsan and Wetsuweten for being too broad, that of the province for being too narrow. In his view, the content of Aboriginal title "lies somewhere in between" (par. 111).
Lamer C.J. identified the sui generis [i.e., unique] nature of Aboriginal title as the unifying principle underlying its various dimensions. These are:
These features cannot be explained fully under either common law rules of real property, or property rules of Aboriginal legal systems.
The Chief Justice cited three grounds for rejecting the provinces restriction of Aboriginal title to the right to use the land only for activities arising from practices or traditions that were integral to the distinctive culture of the group claiming title. First, the Canadian case law in the field made it clear that Aboriginal title is not limited to such uses. Second, legal principles governing the Aboriginal interest in reserve lands and in lands held pursuant to Aboriginal title are the same and, under the Indian Act, the uses and benefits to which reserve lands can be put are very broad, and in no way confined as suggested. Third, the Indian Oil and Gas Act providing for oil and gas exploration on surrendered reserve lands presumes that the Aboriginal interest in land includes mineral rights, which are themselves included in Aboriginal title. Lands held pursuant to Aboriginal title should be capable of the same forms of non-traditional exploitation.
Lamer C.J. described limits on the content of Aboriginal title as reflecting its sui generis nature. In relation to prior occupation as the source of Aboriginal title, the applicable law seeks both to determine historic rights and "to afford legal protection to prior occupation in the present day" in "recognition of the importance of the continuity of the relationship of an aboriginal community to its land over time" (par. 126). Since continuity of relationship also applies to the future, lands subject to Aboriginal title cannot be put to uses that are "irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to aboriginal title in the first place" (par. 128). For example, a group successfully claiming Aboriginal title to land that was occupied as a hunting ground may not use the land in such a way as to destroy its value for hunting.
In the Chief Justices view, these considerations are also relevant to the inalienability of lands held pursuant to Aboriginal title, in that alienation would terminate both entitlement to occupy the land and any special relationship with it. Inalienability suggests that the lands in question are more than a commodity. Rather, they hold inherent value for the community with Aboriginal title and cannot be put to uses by that community that would destroy that value.
Significantly, Lamer C.J. emphasized that this general limitation on the use of lands does not restrict land use to traditional activities, since this would amount to a "legal straitjacket" on those having a "legitimate legal claim to the land." That is, a full range of uses of the land may be undertaken, subject to the "overarching limit" arising from the special nature of the Aboriginal title in the land in question (par.132).
The Chief Justice also noted that nothing in this approach precludes the surrender to the Crown of lands held pursuant to Aboriginal title; in fact, such lands must be surrendered and converted into non-title lands if Aboriginal peoples wish to use them in a manner incompatible with their title.
Delgamuukw confirmed that common law Aboriginal title, recognized as a common law Aboriginal right prior to 1982, was "constitutionalized in its full form" by section 35 of the Constitution Act, 1982 (par. 133).(21)
Lamer C.J. reiterated the Courts previous findings describing Aboriginal title as distinct from other Aboriginal rights under subsection 35(1) "because it arises where the connection of a group with a piece of land was of a central significance to their distinctive culture" (par. 137). The degree of connection with the land is pivotal in determining the scope of constitutional Aboriginal rights claimed. At one end of the spectrum of rights are those practices or traditions integral to a distinctive Aboriginal culture, but where the use and occupation of land on which the activities occur do not support a claim of Aboriginal title. In the middle, such traditional activities may be intimately related to a specific piece of land, so that a group is able to demonstrate a "site-specific" right to engage in those activities, but not to establish title to that land. Both forms of activity are protected by subsection 35(1). Finally,
The Chief Justice noted that assessment of Aboriginal title claims required adaptation of the Courts existing "test" for Aboriginal rights claims relating to activities on the land. Aboriginal title, on the other hand, is a right to the land, which may itself be used for activities that, being "parasitic on the underlying title," need not be individually protected by subsection 35(1) (par. 140). Both tests, however, shared broad similarities.
Lamer J. concluded that the period prior to contact, used in adjudicating Aboriginal rights claims to engage in activities, is an inappropriate time frame in Aboriginal title cases:
Later circumstances may be relevant to title, for instance in cases of dispossession of traditional lands occurring after sovereignty.
To Lamer C.J., both the common law and the Aboriginal perspective on land, including but not limited to Aboriginal legal systems, are relevant for purposes of establishing occupancy. With respect to the former, the fact of physical occupation proves legal possession of the land, which in turn grounds title to it. Such occupation can be established in many ways, including construction, cultivation and resource exploitation; when assessing whether occupation is sufficient to ground title, factors such as the size, manner of life, resources and technological capacity of the claiming group should be considered. Furthermore, since the requirement of pre-sovereignty occupation is sufficient to establish the central significance of the land to the culture of the claiming group, the test for Aboriginal title need not explicitly include the latter element.
In recognition of the potential scarcity of conclusive evidence of pre-sovereignty occupation, the Chief Justice stipulated that a group claiming Aboriginal title may prove such occupation through evidence of present occupation, supplemented by evidence of continuity. The claiming group need not establish "an unbroken chain of continuity," but rather "substantial maintenance of (their) connection" with the land (par. 153). Provided this substantial connection has been maintained, a claim to Aboriginal title need not be precluded by alterations in the nature of the occupation between sovereignty and the present.
Lamer C.J. noted that this requirement, like occupation, is proved with reference to both common law and Aboriginal perspectives. Thus, notwithstanding the common law principle of exclusivity linked to fee simple ownership, the test for exclusive occupation in Aboriginal title claims must consider the context of the Aboriginal society in question at sovereignty. In this light, exclusive occupation can be demonstrated, depending on the circumstances, even if other Aboriginal groups were present on or frequented the lands claimed. In addition, the exclusivity requirement need not preclude the possibility of joint title shared between two or more Aboriginal nations, for instance where more than one group shared a particular piece of land, recognizing each others entitlement to the exclusion of others. Moreover, evidence of non-exclusive occupation may still establish shared, site-specific Aboriginal rights short of title, for example on lands adjacent to those subject to a title claim and shared for hunting by a number of groups.
The Chief Justice reiterated his view that substantial legislative objectives are those directed at the purposes underlying the constitutionalization of Aboriginal rights, i.e., recognition of Aboriginal peoples prior occupation of North America, and reconciliation of that occupation with the Crowns assertion of sovereignty. The latter purpose is particularly relevant at the justification stage: because Aboriginal societies are part of a broader community over which the Crown is sovereign, limitations on Aboriginal rights will sometimes be justified in the pursuit of objectives of importance to the community as a whole, and are a necessary part of the reconciliation of Aboriginal societies with the broader community.
The nature of the Crowns fiduciary duty toward Aboriginal peoples depends, in Lamer C.J.s view, on the legal and factual context at issue. While that duty may sometimes demand that Aboriginal interests be given priority, in other contexts it may involve further questions such as whether the infringement is minimal, whether fair compensation is available, and whether the Aboriginal group has been consulted. The degree of scrutiny of infringing measures required by the fiduciary duty will also vary depending on the nature of the Aboriginal right at issue.
Lamer C.J. held that most of these objectives relate to reconciling Aboriginal peoples prior occupation with the assertion of Crown sovereignty, and thus, to the situation of Aboriginal societies within the broader Canadian community:
The question of whether an infringing measure is related to such objectives will require assessment on a case by case basis.
The Chief Justice pinpointed three aspects of Aboriginal title as relevant in this respect. First, the right to exclusive occupation and use of the land influences the degree of scrutiny of infringing actions. For instance, a fiduciary duty requiring that Aboriginal title be given priority does not entail an absolute requirement, but rather a government demonstration that the process of resource allocation and the actual allocation reflect the prior interest of the holders of Aboriginal title. Examples of such a demonstration include accommodating Aboriginal participation in resource development, conferral of fee simple or resource exploitation authorizations that reflect prior occupation, reduction of economic barriers to Aboriginal uses of their lands, and so forth. This issue may involve an assessment of the various interests at stake in the resources; difficulties in determining the value of the Aboriginal interest in the land may also be expected.
Second, the fact that Aboriginal title includes the right to choose the uses of land suggests that the fiduciary relationship may be satisfied by involving Aboriginal titleholders in decisions respecting their lands. While the Crown always has a duty of consultation, the nature and scope of that duty vary with the circumstances. Lamer C.J. stressed that even in rare cases of minor infringement, "when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation" (par. 168).
Third, as a result of the "inescapably economic aspect" of Aboriginal title, fair compensation will ordinarily be required to fulfil the Crowns fiduciary duty when Aboriginal title is infringed. The amount of compensation will vary according to the nature of the Aboriginal title in question, the severity of the infringement, and the extent to which Aboriginal interests are accommodated.
The Chief Justice observed that the need for a new trial precluded the Court from dealing with this aspect of the plaintiffs claim. Furthermore, under the Courts previous case law, self-government claims "cannot be framed in excessively general terms" as had been done in the present case (par. 170).
Lamer C.J. rejected the provinces claim that it had enjoyed the power to extinguish Aboriginal rights, including Aboriginal title, from the time it joined Confederation in 1871 until the entrenchment of subsection 35(1) in the Constitution. His reasons include findings that:
Lamer C.J. allowed the appeal in part, dismissed the provinces cross-appeal, and ordered a new trial. He explicitly did not encourage a resumption of litigation, however, advising the parties to settle their dispute through negotiations instead. In the Chief Justices view, "[t]hose 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." Negotiated settlements "with good faith and give and take on all sides" would, he concluded, achieve the reconciliation purpose of subsection 35(1) (par. 186).
The Supreme Court of Canadas Delgamuukw decision was expected to have significant, if undetermined, repercussions on the future negotiation and settlement of comprehensive land claims based on Aboriginal title, land use policy and Aboriginal title litigation in those regions of the country where traditional Aboriginal lands have not been ceded by treaty. These include not only most of British Columbia, but also, for example, parts of Quebec and Atlantic Canada.
Delgamuukw continues to represent a momentous affirmation of the existence and constitutionally protected status of Aboriginal title in Canada. It seems important, however, to underscore the fact that the Court did not rule on the merits of the Gitxsan and Wetsuweten Aboriginal title claim. The effects of its decision are therefore more directive than conclusive. Delgamuukw provided government, Aboriginal claimants, and the lower courts with comprehensive new guidelines for the future settlement or litigation of the Gitxsan and Wetsuweten and other comprehensive land claims.
In practical terms, the various parties responses to the Delgamuukw decision remain to be fully played out in terms of policy developments, negotiation processes and the frequency of recourse to the judicial system. Given the history of land claim negotiations, the fact that the Court recommended that ongoing land claim disputes be resolved through negotiation offers no assurance that its guidelines will in fact facilitate the negotiation process or preclude litigation in relation to individual claims. On the other hand, the Delgamuukw ruling provided a compelling impulse to the parties to reaffirm the treaty process through negotiation.
In short, the Delgamuukw decision established an unprecedented theoretical framework that represents the basis for developing the law of Aboriginal title in Canada, rather than the culmination of the laws development. The law of Aboriginal title will continue to evolve as principles of the Delgamuukw framework are implemented.
The concluding portion of this document lists some noteworthy post-December 1997 developments that are related, directly or indirectly, to the Supreme Court of Canadas Delgamuukw ruling.
(1)  3 S.C.R. 1010.
(2)  S.C.R. 313.
(3) It is only relatively recently that the courts ceased using the term "Indian" - appearing in subsection 91(24) of the Constitution Act, 1867 and the Indian Act - as both subject and descriptor, in favour of the more inclusive "Aboriginal people(s)" and "Aboriginal." The term "Aboriginal" refers to the original inhabitants of a territory. Section 35 of the Constitution Act, 1982, defines the "Aboriginal peoples of Canada" to include Indian, Inuit and Métis.
(4) See, in particular, the Federal Court of Canada (Trial Division) decision in Hamlet of Baker Lake v. Minister of Indian Affairs, which set out cumulative criteria relating to Aboriginal title:  1 F.C. 518, additional reasons at  1 F.C. 266.
(5)  2 S.C.R. 335.
(6)  2 S.C.R. 654.
(7) Parliamentary Research Branch publications providing a more comprehensive review of Aboriginal rights issues are Aboriginal Rights by Jane May Allain, Current Issue Review 89-11E, Aboriginal Fishing Rights: Supreme Court Decisions by Jane May Allain, Background Paper 428E, October 1996.
(8)  1 S.C.R. 1075.
(9) These include, notably, the "trilogy" of B.C. commercial fishing rights decisions (R. v. Van der Peet,  2 S.C.R. 507; R. v. N.T.C. Smokehouse Ltd.,  2 S.C.R. 672; R. v. Gladstone,  2 S.C.R. 723) as well as Quebec fishing rights cases (R. v. Côté,  3 S.C.R. 139, R. v. Adams,  3 S.C.R. 101).
(10) See R. v. Pamajewon,  2 S.C.R. 821, a case raising self-government issues in relation to high-stakes gambling.
(11) (1991), 79 D.L.R. (4th) 185.
(12) The action against the federal Crown, which had been joined as a defendant for procedural reasons, was also dismissed.
(13) For a more exhaustive review of the reasons for decision of the B.C. Supreme Court, see the Parliamentary Research Branch publication prepared by Wendy Moss and entitled B.C. Aboriginal Title Case (Delgamuukw v. The Queen), Background Paper 258E, May 1991.
(14) (1993), 104 D.L.R. (4th) 470.
(15) It is worth noting that the blanket extinguishment argument advanced before the trial judge on behalf of the Social Credit administration was abandoned on appeal by the newly elected government of the New Democratic Party.
(16) Ministry of Aboriginal Affairs, News Release, "Province Suspends Treaty Negotiations with Gitxsan [sic]," 1 February 1996.
(17) Sopinka J. heard arguments in the case but did not take part in the judgment.
(18) Par. 1 through 72 introduce the claim, provide a summary historical overview of the Gitxsan and Wetsuweten people, and review the judgments of the B.C. courts.
(19) See heading "Section 35 Interpretation" (p. 2).
(20) For instance, the implications of the trial judges failure to give one form of oral history any independent weight, or of casting doubt on its authenticity, would be that such histories "would be consistently and systematically undervalued by the Canadian legal system, in contradiction of the [Courts] express instruction to the contrary" (par. 98). Similarly, his expectation that a second form would furnish conclusive or precise evidence of pre-contact Aboriginal activities would "be almost an impossible burden to meet" (par. 101). Finally, the effect of the trial judges rationale for excluding a third form of evidence based on oral history "may be that a society with such an oral tradition would never be able to establish a historical claim through the use of oral history" (par. 106).
(21) The Chief Justice further noted that constitutionalization of common law Aboriginal rights does not signify that these rights exhaust the content of subsection 35(1) (par. 136).
(22) In B.C., the treaty-making process and governing principles for negotiations were set out in the BC Claims Task Force Report of 1991 and incorporated in the tripartite Treaty Commission Agreement of 1992. In accordance with the terms of the Agreement, federal and provincial statutes were enacted to establish the British Columbia Treaty Commission. The BCTC is responsible for facilitating treaty negotiations in the province, not including the recently concluded Nisgaa negotiations. It accepts First Nations into the treaty making process; assesses when the parties are ready to start negotiations; allocates funding, primarily in the form of loans, to First Nations; monitors and reports on the progress of negotiations; identifies problems and offers advice; and assists the parties in resolving disputes. Two of the BCTCs five Commissioners are appointed by the First Nations Summit, while Canada and British Columbia each appoints one. The Chief Commissioner is appointed by agreement among the parties. The present Chief Commissioner, Miles Richardson, began a three-year term in November 1998.
(23) British Columbia Treaty Commission, News Release, "Treaty Commission Urges Changes to Safeguard Treaty Process," Vancouver, 28 January 1998.
(24) British Columbia Treaty Commission, Newsletters, "Supreme Court Decision Underlines Need for Negotiation," Vancouver, February 1998.
(25) Government of Canada, Government of British Columbia, First Nations Summit, News Release, "Canada, British Columbia and First Nations Agree to a Joint Review of the B.C. Treaty Process," Vancouver, 13 March 1998.
(27) Department of Indian Affairs and Northern Development (DIAND), Backgrounder, "Increased Federal Government Support for British Columbia Treaty Negotiations," 7 July 1998. The text of this and other documents issued by DIAND are available online at http://www.inac.gc.ca.
(28) Federal Treaty Negotiation Office,
"Business Opportunities Abound in Post-Delgamuukw Environment," Treaty
News, June 1998, available online at
(29) Office of the Leader of the Opposition, News Release, "Time to Legislate an End to Delgamuukw Uncertainty," Ottawa, 8 June 1998.
(30) British Columbia Treaty Commission, Annual Report 1998¸ "Challenges - Delgamuukw Decision Defining Event of 1997," Vancouver, June 1998.
(31) Kitkatla Band v. British Columbia (Minister of Forests),  2 C.N.L.R. 170. See text under June 1999 heading and associated footnote.
(32) Department of Indian Affairs and Northern Development, News Release, "Canada Demonstrates Commitment to Revitalizing Treaty Process," Vancouver, 7 July 1998.
(33) Backgrounder, note 27.
(35) Government of British Columbia, Ministry of Aboriginal Affairs, News Release, "Agreement Reinvigorates Treaty Discussions with Wetsuweten," Smithers, B.C., 14 September 1998. The text of this and other documents issued by the provincial Ministry are available online.
(36) Government of British Columbia, Ministry of Aboriginal Affairs, News Release, "Agreement Renews Treaty Discussions with Gitxsan First Nation," Hazelton, B.C., 15 September 1998.
(37) Government of British Columbia, Ministry of Aboriginal Affairs, News Release, "Province Releases First Nations Consultation Guidelines for Government Staff," Victoria, 29 September 1998. See Consultation Guidelines at Ministry website under Delgamuukw heading.
(38) British Columbia Treaty Commission, Newsletter, "Interim Measures Keep Peace," Vancouver, October 1998.
(39) Ibid., "Overlap Agreements A Must in Treaty Negotiations."
(40) Ibid., "Commissioners Respond to Questions About Treaty Process."
(41) Resolution 72/98 of 9 December 1998.
(42) The Post-Delgamuukw Capacity Panel Final Report is available online via the DIAND website.
(43) Ibid., Executive Summary.
(44) Ian Dutton, "B.C. Ignoring Court, Natives Say: Negotiators Dont Recognize Title Despite Delgamuukw, Leader Charges," Victoria Times Colonist, 19 February 1999, p. A3.
(45) "Delgamuukw National Process," Backgrounder, undated, available online via the AFN web site under "Links."
(46) The Gitanyow are culturally Gitxsan.
(47) The Gitanyow sought declarations (1) that in undertaking to negotiate a treaty with the Gitanyow, and in proceeding with those treaty negotiations, the federal and provincial Crowns are obliged to negotiate in good faith and to make every reasonable effort to conclude and sign a treaty with the Gitanyow, and (2) that for the federal and provincial Crowns to conclude a treaty with the Nisgaa "or to allow the designation for any purpose related to the Nisgaa Treaty over lands and resources in respect of which Gitanyow, Canada and British Columbia are involved in a treaty process until treaty negotiations with the Gitanyow are concluded" would be contrary to the Crowns duty to negotiate in good faith, significantly undermine the Gitanyow claim to "overlapping" territory in the Nass Valley and nullify the Gitanyow treaty process. The Gitxsan and Tahltan First Nations also claim territory in the Nass watershed.
(48) Gitanyow First Nation v. Canada,  3 C.N.L.R. 89, par. 70-75.
(49) Department of Indian Affairs and Northern Development, News Release, "Canada Invests $15 Million to Enhance First Nations Capacity to Participate in Land and Resource Negotiations and Consultations," Vancouver, 15 April 1999; Backgrounder, "British Columbia Capacity Initiative," 15 April 1999; Federal Treaty Negotiation Office, "$15 million invested in B.C. Capacity Initiative," Treaty News, June 1999, available online .
(50) A summary of the Sechelt AIP is available online via the DIAND or provincial Ministry website.
(52) Peter ONeil, "Delgamuukw Decision to Have Wide Fallout on Native Claims: The Ruling on a B.C. Aboriginal Land Action Is Strengthening Rights Elsewhere, Experts Say," Vancouver Sun, 27 May 1999, p. A4; "Delgamuukw Decision an Unworkable Regime: A B.C. Liberal MLA Says the Ruling Has Created a Flawed System in Trying to Reconcile Aboriginal Rights and Economic Projects," Vancouver Sun, 28 May 1999, p. A6.
(53) Subsequent developments are outlined under November 1999.
(54) The scope of the Delgamuukw consultation requirement has been and continues to be raised in numerous court cases; see, for example, Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture),  1 C.N.L.R. 72 (B.C.S.C.), in which the Court found the duty to consult had not been met, reversed on other grounds in Kitkatla Band v. British Columbia (Small Business, Tourism and Culture), File Nos. VO3364 and V03385, 19 January 2000 (B.C.C.A.); Chief Councillor Alice Munro v. British Columbia (Minister of Forests) et al., File No. A981672, 9 July 1998 (B.C.S.C.); Halfway River First Nation v. British Columbia (Ministry of Forests), File Nos. CA023526 and CA023539, 12 August 1999 (B.C.C.A.), affirming  4 C.N.L.R 45 (B.C.S.C.).
(55) British Columbia Treaty Commission, Annual Report 1999, "The Legal and Political Landscape after Delgamuukw," Vancouver, June 1999.
(57) British Columbia Treaty Commission, News Release, "Several Treaties with First Nations within Reach, Says Treaty Commission Annual Report Card," Vancouver, 24 June 1999.
(58) British Columbia Treaty Commission, Annual Report 1999, "Negotiation Funding Inadequate."
(59) Ibid., "First Nations in Stage 4."
(60) "First Nations Summit Urges Governments to Implement Recommendations Contained within the 1999 BC Treaty Commission Annual Report," Canada News-Wire, Vancouver, 25 June 1999.
(61) "Smooth Road Expected for Aboriginal Treaties," Regina Leader-Post, 25 June 1999, p. C9. The positions of the UBCIC on Aboriginal Title and Rights and related issues are available online.
(62) Federal Treaty Negotiation Office, "First Nations Receive Funds to Improve Lands and Resources Capacity," Treaty News, November 1999.
(63) Resolution 5/99, 22 July 1999.
(64) Kim Pemberton, "Immediate Benefits Planned for Natives," Vancouver Sun, 16 September 1999, p. A10.
(65) For example, it was also reported that the Gitxsan, likening their situation to that of the Westbank, planned to go to court to argue their right to cut timber, based on Delgamuukw principles. In March 1999, the Forest Appeals Board had ruled, in relation to a 1995 charge of trespassing on Crown land to log and a substantial fine, that the Forests Ministry had failed to take into account the rights of the Gitxsan: "Gitxsan to Court in Dispute on Logging," Vancouver Province, 10 September 1999, p. A29.
(66) "First Nations Summit Passes Unanimous Resolution in Support of Westbank First Nation," Canada News-Wire, 15 September 1999.
(67) Prominent among these was the Carrier Sekani Tribal Council, whose Chiefs were engaged in seeking to prevent major forestry companies from transferring into their traditional territory in the absence of interim forestry measures that would protect their interests prior to an eventual treaty settlement. In their view, Delgamuukw confirmed their title to the forest resource, and "they will not sit by while their members remain unemployed and they go into debt negotiating for empty lands": Carrier Sekani Tribal Council, News Release, "CSTC Supports Westbank First Nations Title to Their Forests," Prince George, 29 September 1999.
(68) Chuck Poulsen, "Both Sides in Logging Dispute Hope for Solution," Kelowna Daily Courier, 22 September 1999; "Court Weighs Logging Dispute," Brantford Expositor, 24 September 1999, p. A9; Kim Pemberton, "Court Turns Down Victoria Bid to Stop Westbank Logging," Vancouver Sun, 28 September 1999, p. A4; Suzanne Fournier, "Westbank Nation Logs Key Victory: Judge Refuses to Halt Timber Cutting on Land in Dispute," Vancouver Province, 28 September 1999, p. A11; "Westbank Band Scores Court Victory," Victoria Times Colonist, 28 September 1999, p. A1; Kim Pemberton, "Province Appeals Logging-Ban Ruling: A Judge Refuses to Grant a Request to Force an End to Cutting, but the Westbank Band Stops Voluntarily," Vancouver Sun, 29 September 1999, p. B8.
(69) Government of British Columbia, Ministry of Aboriginal Affairs, News Release, "Cabinet Approves Measures to Revitalize Treaty Negotiations," Victoria, 29 September 1999.
(70) Suzanne Fournier, "B.C. Resources Overture Brushed Off by Natives," Vancouver Province, 1 October 1999, p. A44.
(71) "B.C. Chiefs Seek Lumber Boycott Abroad: Leaders of Three Interior Bands Are Going to Washington, New York and Geneva in a Bid Launch an International Campaign against the Purchase of B.C. Wood...," Vancouver Sun, 21 October 1999, p. B7.
(72) British Columbia Treaty Commission, Newsletter, "Changes to Treaty Process May Spur Negotiations," Vancouver, November 1999.
(73) Government of British Columbia, Ministry of Aboriginal Affairs, News Release, "Treaty Measures Offer Resource Opportunities for First Nations," North Vancouver, 29 October 1999.
(74) Honourable Dale Lovick, Speech to First Nations Summit, North Vancouver, 29 October 1999.
(75) The First Nations Summit has identified compensation as a key issue in treaty negotiations, and has cited governments lack of willingness to discuss it as a negotiation item as one of the reasons underlying the lack of progress in the treaty process: see British Columbia Treaty Commission, Newsletter, "Compensation a Key Issue in Negotiations," Vancouver, November 1999.
(76) British Columbia Treaty Commission, Newsletter, note 72.
(77) British Columbia (Minister of Forests) v. Okanagan Indian Band,  B.C.J. No. 2545 (Q.L.), 12 November 1999.
(78) British Columbia (Minister of Forests) v. Westbank First Nation, File No. 46440, 12 November 1999.
(79) British Columbia Treaty Commission, "The Treaty Commissions Role in the Review," After Delgamuukw: The Legal and Political Landscape, Vancouver, November 1999.