Delgamuukw et al. v. British Columbia et al., (1997) 220 N.R. 161 (SCC)

JudgeLamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin and Major, JJ.
CourtSupreme Court (Canada)
Case DateDecember 11, 1997
JurisdictionCanada (Federal)
Citations(1997), 220 N.R. 161 (SCC)

Delgamuukw v. B.C. (1997), 220 N.R. 161 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [1997] N.R. TBEd. DE.001

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 of these reasons) (appellants) v. Her Majesty The Queen in Right of the Province of British Columbia (respondent) and The Attorney General of Canada (intervenor) and The First Nations Summit, The Musqueam Nation et al. (as shown in Schedule 2 of the reasons), The Westbank First Nation, The B.C. Cattlemen's Association et al. (as shown in Schedule 3 of the reasons), Skeena Cellulose Inc., Alcan Aluminum Ltd. (intervenors)

(23799)

Indexed As: Delgamuukw et al. v. British Columbia et al.

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin

and Major, JJ.

December 11, 1997.

Summary:

Fifty-one aboriginal plaintiffs, all heredi­tary chiefs of 71 Houses, individually and on behalf of the members of their Houses, brought an action claiming declarations of "ownership" of, and "jurisdiction" over some 58,000 square kilometres of territory in central British Columbia, as well as damages for wrongful appropriation and use of the territory by the province. Ownership of 133 individual areas was claimed.

The British Columbia Supreme Court, in a judgment reported [1991] 3 W.W.R. 97, dismissed the claims for ownership, jurisdic­tion and damages, but held that the plaintiffs were entitled to aboriginal rights for nonex­clusive sustenance gathering purposes over large portions of the territory; that the plain­tiffs' rights were, however, extinguished by 13 colonial instruments enacted prior to British Columbia's entry into Confederation in 1871; and that the Crown owed a fiduciary duty to permit aboriginals to use unoccupied or vacant Crown land for sus­tenance until that land was dedicated for another purpose. The trial judge dismissed the plaintiffs' action against the federal Crown and the province's counterclaim. The plaintiffs appealed, arguing that the trial judge erred in many of his fact findings. On the appeal the province conceded that there was no "blanket extinguishment" of the plaintiffs' aboriginal rights, but that some aboriginal rights may have been extinguished or impaired as a result of the province exer­cising its rights under s. 109 of the Constitu­tion Act, 1867. The plaintiffs and the prov­ince requested the court to decide some questions now and adjourn the appeal for two years to allow the parties to negotiate other issues, the court retaining jurisdiction over same and, failing settlement, for the court to hear and decide them.

The British Columbia Court of Appeal, Lambert, J.A., dissenting, and Hutcheon, J.A., dissenting in part, in a judgment re­ported 30 B.C.A.C. 1; 49 W.A.C. 1, allowed the appeal by varying the trial judgment. The Court of Appeal affirmed the dismissal of the plaintiffs' claims for ownership, jurisdic­tion and damages, but held that the plain­tiffs' aboriginal rights were not extinguished by the 13 colonial instruments. The prov­ince's cross-appeal against dismissal of its counterclaim against the federal Crown was dismissed as abandoned. The plaintiffs appealed. The province cross-appealed.

The Supreme Court of Canada allowed the appeal, dismissed the cross-appeal and ordered a new trial on procedural grounds. The individual claims made at trial were amalgamated, without any amendment, into two communal claims on appeal, thereby prejudicing parties opposite to the aboriginal parties. Further, the trial judge erred in his factual findings.

Indians, Inuit and Métis - Topic 503

Rights - General - Individuality v. col­lectivity - [See second Indians, Inuit and Métis - Topic 5566 ].

Indians, Inuit and Métis - Topic 506

Rights - General - Constitution Act, 1982, s. 35 - Interpretation - The Supreme Court of Canada stated that "aboriginal title at common law is protected in its full form by s. 35(1)" - Section 35(1) of the Consti­tution Act, 1982, did not create aboriginal rights; it accorded constitutional status to those rights "existing" in 1982 - The court discussed the relationship between "aboriginal title" and "aboriginal rights" protected by s. 35(1) - See paragraphs 133 to 139.

Indians, Inuit and Métis - Topic 5564

Lands - Land claims - Requirements for claim for ownership - [See Indians, Inuit and Métis - Topic 5568 ].

Indians, Inuit and Métis - Topic 5566

Lands - Land claims - Aboriginal title - Nature of - The Supreme Court of Canada stated that "aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cul­tures of aboriginal societies. Those activi­ties do not constitute the right per se; rather, they are parasitic on the underlying title. However, that range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attach­ment to the land which forms the basis of the particular group's aboriginal title. This inherent limit ... flows from the definition of aboriginal title as a sui generis interest in land, and is one way in which aboriginal title is distinct from a fee simple." - See paragraphs 111, 116 to 132.

Indians, Inuit and Métis - Topic 5566

Lands - Land claims - Aboriginal title - Nature of - The Supreme Court of Canada stated that "the idea that aboriginal title is sui generis is the unifying principle under­lying the various dimensions of that title. One dimension is its inalienability . Lands held pursuant to aboriginal title cannot be transferred, sold or surrendered to anyone other than the Crown and, as a result, is inalienable to third parties. This court has taken pains to clarify that aboriginal title is only 'personal' in this sense, and does not mean that aboriginal title is a non-pro­prietary interest which amounts to no more than a licence to use and occupy the land and cannot compete on an equal footing with other proprietary interests. ... it is now clear that although aboriginal title was recognized by the [Royal] Proclamation [1763], it arises from the prior occupation of Canada by aboriginal peoples. ... What makes aboriginal title sui generis is that it arises from possession before the assertion of British sovereignty, whereas normal estates, like fee simple, arise afterward. ... aboriginal title ... is held communally . Aboriginal title cannot be held by indi­vidual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation." - See paragraphs 113 to 115.

Indians, Inuit and Métis - Topic 5567

Lands - Land claims - Aboriginal title - Use limitations - The Supreme Court of Canada stated that aboriginal title was subject to use limitations so as not to threaten the continuity of the relationship of an aboriginal community to its land over time - As examples, the court stated that "if occupation is established with reference to the use of the land as a hunt­ing ground, then the group that successful­ly claims aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e.g., by strip mining it). Similarly, if a group claims a special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship (e.g., by develop­ing it in such a way that the bond is destroyed, perhaps by turning it into a parking lot). ... The land has an inherent and unique value in itself, which is enjoyed by the community with aboriginal title to it. The community cannot put the land to uses which would destroy that value. ... If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit, then they must surrender those lands and convert them into non-title lands to do so." - See paragraphs 125 to 132.

Indians, Inuit and Métis - Topic 5568

Lands - Land claims - Aboriginal title - Evidence and proof - The Supreme Court of Canada stated that "in order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the fol­lowing criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive" - The court discussed each of the three components of the test - See paragraphs 140 to 159.

Indians, Inuit and Métis - Topic 5569

Lands - Land claims - Aboriginal title - Infringement - Justification - The Supreme Court of Canada stated that aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982, were not absolute - The rights could be infringed by the provincial or federal governments if the infringements passed the test of justifi­cation - First, the infringement of the aboriginal right must be in furtherance of a compelling and substantial legislative objective - The second part of the test required an assessment of whether the infringement was consistent with the special fiduciary relationship between the Crown and aboriginal peoples - The court discussed the differences between justified infringements of aboriginal rights such as the right to fish or hunt and infringement of aboriginal title - The court stated that "fair compensation will ordinarily be required when aboriginal title is infringed" - See paragraphs 160 to 169.

Indians, Inuit and Métis - Topic 6003

Aboriginal rights - General - Protection of - [See Indians, Inuit and Métis - Topic 506 ].

Indians, Inuit and Métis - Topic 6005

Aboriginal rights - General - Nature of - [See both Indians, Inuit and Métis - Topic 5566 ].

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - General - Proof of - The Supreme Court of Canada stated that in determining historical facts respecting aboriginal claims the trial judge must treat evidence in a unique manner which accords due weight to the perspective of aboriginal peoples: "trial courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims, and ... trial courts must interpret that evidence in the same spirit" - The court stated that courts must "adapt the laws of evidence so that the aboriginal perspective on their prac­tices, customs and traditions and on their relationship with the land, are given due weight by the courts. In practical terms, this requires the courts to come to terms with the oral histories of aboriginal societies, which, for many aboriginal nations, are the only record of their past. Given that the aboriginal rights recognized and affirmed by s. 35(1) are defined by reference to pre-contact practices or, ... , in the case of title, pre-sovereignty occu­pation, those histories play a crucial role in the litigation of aboriginal rights. ... Not­withstanding the challenges created by the use of oral histories as proof of historical facts, 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, which largely consists of historical documents." - See paragraphs 78 to 88.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - General - Proof of - Aboriginal peoples claimed that the trial judge erred in the way he treated oral histories as proof of historical facts respecting the use and occupation of lands to which aboriginal rights were claimed - The Supreme Court of Canada stated that "the trial judge gave no independent weight to these special oral histories because they did not accurately convey historical truth, because knowledge about those oral histories was confined to the communities whose histories they were and because those oral histories were insuf­ficiently detailed. ... these are features, to a greater or lesser extent, of all oral his­tories ... The implication of the trial judge's reasoning is that oral histories should never be given any independent weight and are only useful as confirmatory evidence in aboriginal rights litigation. I fear that if this reasoning were followed, the oral histories of aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system, in contradiction of the express instruction to the contrary in Van Der Peet that trial courts interpret the evidence of aboriginal peoples in light of the difficulties inherent in adjudicating aboriginal claims." - See paragraphs 89 to 108.

Indians, Inuit and Métis - Topic 6017

Aboriginal rights - General - Infringement - [See Indians, Inuit and Métis - Topic 5569 ].

Indians, Inuit and Métis - Topic 6018

Aboriginal rights - General - Ex­tinguishment - The Supreme Court of Canada held that the province of British Columbia, between the time of entering Confederation (1871) and entrenchment of s. 35(1) of the Constitution Act (1982), had no jurisdiction to extinguish aboriginal rights, including aboriginal title - Section 91(24) of the Constitution Act, 1867, gave the federal government exclusive jurisdic­tion to legislate and extinguish aboriginal title - Further, the federal government had exclusive jurisdiction to legislate respecting any aboriginal rights in relation to land falling short of title - Although provincial laws of general application applied to Indians and Indian lands, such laws could not extinguish aboriginal rights - Further, s. 88 of the Indian Act, which "extends the effect of provincial laws of general appli­cation which cannot apply to Indians and Indian lands because they touch on the Indianness at the core of s. 91(24)" did not permit provincial laws to extinguish aboriginal rights - See paragraphs 172 to 183.

Indians, Inuit and Métis - Topic 6328

Government of Indians - Self-government - Claim for - At issue at trial and before the British Columbia Court of Appeal was whether s. 35(1) of the Constitution Act, 1982, could protect a right to aboriginal self-government and, if so, the scope and nature of that right - The Supreme Court of Canada stated that given factual errors and the need for a new trial, it was impos­sible to determine whether the claim for self-government was made out - The court stated that the right to self-government, if it exists, cannot be framed in excessively general terms - The issue of self-govern­ment had to be resolved at the new trial - See paragraphs 170 to 171.

Practice - Topic 2150

Pleadings - Amendment of pleadings - Necessary amendment not made - In the pleadings at trial 51 Chiefs, representing most of the houses of two nations, advanced 51 individual claims for "owner­ship" and "jurisdiction" over land - On appeal, the claims were replaced by claims for aboriginal title and self-government - Also, the individual claims were amal­gamated into two communal claims, one for each nation - The pleadings were never formally amended - The Supreme Court of Canada stated that the trial judge permitted a de facto amendment to permit a claim for aboriginal rights other than ownership and jurisdiction - That ruling had not been appealed - Further, given the legal uncer­tainty respecting aboriginal rights, the court would not order a new trial for want of a formal amendment - However, the individual claims at trial were converted into communal claims on appeal without any amendment - The communal claims were not in issue at trial and the province was prejudiced - The court, for this and other reasons, ordered a new trial - See paragraphs 73 to 77.

Practice - Topic 8800

Appeals - Duty of appellate court re­garding findings of fact by a trial judge - The Supreme Court of Canada restated the general rule that an appellate court should not interfere with a trial judge's fact find­ings absent "palpable and overriding error" - However, in cases involving the deter­mination of aboriginal rights, the court stated that appellate intervention was war­ranted where the trial judge failed "to appreciate the evidentiary difficulties inherent in adjudicating aboriginal claims when, first, applying the rules of evidence and, second, interpreting the evidence before it" - Aboriginal rights were truly sui generis and required a unique approach to the treatment of evidence which accords due weight to the perspective of the aboriginal peoples - See paragraphs 78 to 82.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See Practice - Topic 2150 ].

Practice - Topic 9224

Appeals - New trials - Grounds - General -[See Practice - Topic 2150 ].

Cases Noticed:

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, consd. [para. 1].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, consd. [para. 1].

R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; 200 N.R. 321; 80 B.C.A.C. 269; 130 W.A.C. 269, consd. [para. 1].

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, consd. [para. 1].

R. v. Pamajewon (H.) et al., [1996] 2 S.C.R. 821; 199 N.R. 321; 92 O.A.C. 241, consd. [para. 1].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89, consd. [para. 1].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, consd. [para. 1].

St. Catherine's Milling & Lumber Co. v. R. (1887), 13 S.C.R. 577, consd. [para. 15].

Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, consd. [para. 15].

Baker Lake (Hamlet) v. Canada (Minister of Indian Affairs and Northern Develop­ment), [1980] 1 F.C. 518, consd. [para. 15].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 15].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 15].

Mabo v. Queensland (1992), 107 A.L.R. 1 (H. Ct.), refd to. [para. 31].

Four B Manufacturing Ltd. v. United Garment Workers of America and Ontario Labour Relations Board and Brant et al., [1980] 1 S.C.R. 1031; 30 N.R. 421, refd to. [para. 37].

Natural Parents v. Superintendent of Child Welfare et al., [1976] 2 S.C.R. 751; 6 N.R. 491, refd to. [para. 37].

R. v. Dick, [1985] 2 S.C.R. 309; 62 N.R. 1, refd to. [para. 37].

Stein Estate et al. v. Ship Kathy K et al., [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 78].

N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; 76 N.R. 212, refd to. [para. 78].

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 79].

Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474; 27 N.R. 1, refd to. [para. 80].

R. v. Kruger and Manuel, [1978] 1 S.C.R. 104; 15 N.R. 495, refd to. [para. 86].

R. v. Taylor (1981), 62 C.C.C.(2d) 227 (Ont. C.A.), refd to. [para. 87].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, refd to. [para. 87].

Delgamuukw v. British Columbia, [1987] 6 W.W.R. 155 (B.C.S.C.), refd to. [para. 95].

Uukw v. R. - see Delgamuukw v. British Columbia.

St. Catherine's Milling and Lumber Co. v. R. (1888), 14 App. Cas. 46 (P.C.), refd to. [para. 112].

Canadian Pacific Ltd. v. Paul et al., [1988] 2 S.C.R. 654; 89 N.R. 325; 91 N.B.R.(2d) 43; 232 A.P.R. 43, refd to. [para. 113].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [1989] 1 S.C.R. 322; 92 N.R. 241, refd to. [para. 114].

Roberts v. Canada - see Wewayakum Indian Band v. Canada and Wewayakai Indian Band

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Develop­ment), [1995] 4 S.C.R. 344; 190 N.R. 89; 130 D.L.R.(4th) 193, refd to. [para. 122].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81, refd to. [para. 129].

St. Mary's Indian Band v. Cranbrook (City), [1997] 2 S.C.R. 657; 213 N.R. 290; 92 B.C.A.C. 161; 150 W.A.C. 161, refd to. [para. 130].

United States v. Sante Fe Pacific Railroad Co. (1941), 314 U.S. 339, refd to. [para. 158].

R. v. Sutherland and Wilson et al. and Canada (Attorney General), [1980] 2 S.C.R. 451; 35 N.R. 361; 7 Man.R.(2d) 359, refd to. [para. 179].

R. v. Francis, [1988] 1 S.C.R. 1025; 85 N.R. 3; 85 N.B.R.(2d) 243; 217 A.P.R. 243, refd to. [para. 179].

Derrickson v. Derrickson, [1986] 1 S.C.R. 285; 65 N.R. 278, refd to. [para. 182].

R. v. Wesley, [1932] 4 D.L.R. 774 (Alta. C.A.), refd to. [para. 200].

R. v. Sikyea (1964), 43 D.L.R.(2d) 150 (N.W.T.C.A.), affd. [1964] S.C.R. 642, refd to. [para. 200].

Statutes Noticed:

Constitution Act, 1867, sect. 91(24) [para. 37]; sect. 109 [para. 175].

Constitution Act, 1982, sect. 35(1) [para. 133].

Indian Act, R.S.C. 1985, c. I-5, sect. 6(2) [para. 122]; sect. 18 [para. 121]; sect. 88 [para. 183].

Authors and Works Noticed:

Canada, Royal Commission on Aboriginal Peoples Report, Looking Forward, Look­ing Back (1996), vol. 1, p. 33 [para. 85].

Canada, Royal Commision on Aboriginal Peoples Report, Restructuring the Re­lationship (1996), vol. 2, pp. 561 [paras. 123, 207]; 562 [para. 207].

Cheshire and Burn, E.H., Modern Law of Real Property (14th Ed. 1988), pp. 28 [para. 149]; 264 [para. 130].

Gagne, Jocelyn, The Content of Aboriginal Title at Common Law: A Look at the Nishga Claim (1982-83), 47 Sask. Law Rev. 309, pp. 336, 337 [para. 123].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992), p. 676 [para. 182].

Howard, Michael Newman, Crane, Peter, Hochberg, Daniel A., Phipson on Evi­dence (14th Ed. 1990), p. 736 [para. 95].

Macklem, Patrick, First Nations Self-Gov­ernment and the Borders of the Canadian Legal Imagination (1991), 36 McGill L.J. 382, pp. 447, 448 [para. 135].

McLeod, Clay, The Oral Histories of Canada's Northern People, Anglo-Ca­nadian Evidence Law, and Canada's Fiduciary Duty to First Nations: Break­ing Down the Barriers of the Past (1992), 30 Alta. L. Rev. 1276, p. 1279 [para. 86].

McNeil, Kent, The Constitutional Rights of the Aboriginal Peoples of Canada (1982), 4 Sup. Ct. L. Rev. 255, pp. 256, 257 [para. 135].

McNeil, Kent, The Meaning of Aboriginal Title, Aboriginal and Treaty Rights in Canada (1997), pp. 135 [para. 114]; 143 to 150 [para. 123]; 144 [paras. 114, 123].

McNeil, Kent, Common Law Aboriginal Title, pp. 73 [para. 149]; 196 [para. 145]; 201, 202 [para. 149]; 204 [para. 156]; 242 [para. 123].

Megarry, Robert E., and Wade, H.W.R., The Law of Real Property (4th Ed. 1975), pp. 105 [para. 130]; 1006 [para. 149].

O'Reilly, James, La Loi constitutionnelle de 1982 droit des autochtones (1984), 25 C. De D. 125, p. 137 [para. 135].

Pentney, William, The Rights of the Aboriginal Peoples of Canada in the Constitution Act, 1982 Part II - Section 35: The Substantive Guarantee (1988), 22 U.B.C. Law Rev. 207, pp. 220 [para. 135]; 221 [paras. 123, 135].

Phipson on Evidence (14th Ed. 1990), p. 736 [para. 95].

Sanders, Douglas, Pre-Existing Rights: The Aboriginal Peoples of Canada, The Ca­nadian Charter of Rights and Freedoms (2nd Ed. 1989), pp. 731, 732 [para. 135].

Sanders, Douglas, The Rights of the Aboriginal Peoples of Canada (1983), 61 Can. Bar Rev. 314, p. 329 [para. 135].

Slattery, Brian, The Constitutional Guaran­tee of Aboriginal and Treaty Rights (1982-83), 8 Queen's L.J. 232, pp. 254 [para. 135]; 268, 269 [para. 123].

Slattery, Brian, Ancestral Lands, Alien Laws: Judicial Perspectives on Aborigi­nal Title (1983), pp. 34 [para. 123]; 45 [para. 135].

Slattery, Brian, Understanding Aboriginal Rights (1987), 66 Can. Bar Rev. 727, pp. 742 [para. 145]; 746, 747, 748 [para. 123]; 751, 752 [para. 203]; 758 [para. 149]; 759 [para. 198].

Counsel:

Stuart Rush, Q.C., Peter Grant, Michael Jackson, Louise Mandell and David Paterson, for the appellants and re­spondents on the cross-appeal, the Gitksan Hereditary Chiefs et al.;

Marvin R.V. Storrow, Q.C., Joanne R. Lysyk and Joseph C. McArthur, for the appellants and respondents on the cross-appeal, the Wet'suwet'en Hereditary Chiefs et al.;

Joseph J. Arvay, Q.C., Mark G. Underhill and Brenda Edwards, for the respondent and appellant on the cross-appeal, Her Majesty the Queen in Right of the Prov­ince of British Columbia;

Graham Garton, Q.C., Judith Bowers, Q.C., Murray T. Wolf and Geoffrey S. Lester, for the respondent the Attorney General of Canada;

Arthur Pape, Harry A. Slade, Peter Hogg and Jean Teillet, for the intervener the First Nations Summit;

Jack Woodward and Albert C. Peeling, for the intervener the Westbank First Nation;

Marvin R.V. Storrow, Q.C., Joanne R. Lysyk and Joseph C. McArthur, for the interveners the Musqueam Nation et al.;

J. Keith Lowes, for the interveners, the B.C. Cattlemen's Association et al.;

Charles F. Willms, for the intervener, Skeena Cellulose Inc.;

J. Edward Gouge, Q.C., and Jill M. Marks, for the intervener Alcan Aluminum Ltd.

Solicitors of Record:

Rush, Crane, Guenther & Adams, Vancouver, British Columbia, for the appellants and respondents on the cross-appeal, the Gitksan Hereditary Chiefs et al.;

Blake, Cassels & Graydon, Vancouver, British Columbia, for the appellants and respondents on the cross-appeal, the Wet'suwet'en Hereditary Chiefs et al.;

Arvay, Finlay, Victoria, British Columbia, for the respondent and appellant on the cross-appeal, Her Majesty the Queen in Right of the Province of British Columbia;

The Attorney General of Canada, Ottawa, Ontario, for the respondent, the Attorney General of Canada;

Ratcliff & Company, North Vancouver, British Columbia, for the intervener, the First Nations Summit;

Woodward and Company, Victoria, British Columbia, for the intervener, the West­bank First Nation;

Blake, Cassels & Graydon, Vancouver, British Columbia, for the interveners, the Musqueam Nation et al.;

J. Keith Lowes, Vancouver, British Columbia, for the interveners, the B.C. Cattlemen's Association et al.;

Russell & DuMoulin, Vancouver, British Columbia, for the intervener, Skeena Cellulose Inc.;

Lawson, Lundell, Lawson & McIntosh, Vancouver, British Columbia, for the intervener, Alcan Aluminum Ltd.

This appeal and cross-appeal were heard on June 16-17, 1997, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin and Major, JJ., of the Supreme Court of Canada.

On December 11, 1997, the judgment of the Supreme Court was delivered in both official languages and the following opinions were filed:

Lamer, C.J.C. (Cory and Major, JJ., concurring) - see paragraphs 1 to 186;

La Forest, J. (L'Heureux-Dubé, J., con­curring) - see paragraphs 187 to 208;

McLachlin, J. - see paragraph 209.

Sopinka, J., did not participate in the judg­ment.

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    • Canada (Federal) Federal Court (Canada)
    • July 9, 2015
    ...393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [para. 57]. Delgumuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 57]. Miller Estate, Re (1987), 26 E.T.R. 1888 (Surr. Ct.), refd to. [para. 60]. Cowan v. Sc......
  • Brill v. Nova Scotia (Attorney General), 2010 NSCA 69
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • May 31, 2010
    ...(1975), 20 N.S.R.(2d) 500; 27 A.P.R. 500 (T.D.), refd to. [para. 149]. Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. R. v. Marshall (S.F.) et al.; R. v. Bernard (J.) (2003), 218 N.S.R.(2d) 78; 687 A.P.R. 78......
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251 cases
  • NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, (2010) 294 B.C.A.C. 1 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • December 8, 2009
    ...55]. R. v. Dick, [1985] 2 S.C.R. 309; 62 N.R. 1, refd to. [para. 55]. Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. Shubenacadie Indian Band v. Canadian Human Rights Commission et al. (2000), 256 N.R. 109; ......
  • R. v. Marshall (D.J.), Jr., (1999) 246 N.R. 83 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • September 17, 1999
    ...Williams (1981), 62 C.C.C.(2d) 227 (Ont. C.A.), refd to. [para. 10]. Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 11]. R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 11]. Gu......
  • Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2015] F.T.R. TBEd. JL.031
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • July 9, 2015
    ...393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [para. 57]. Delgumuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 57]. Miller Estate, Re (1987), 26 E.T.R. 1888 (Surr. Ct.), refd to. [para. 60]. Cowan v. Sc......
  • Little Salmon/Carmacks First Nation et al. v. Beckman et al., (2010) 408 N.R. 281 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • November 12, 2009
    ...196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161, refd to. [para. 42]. Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [paras. 42, Rio Tinto Alcan v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. B......
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2 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Alternative Dispute Resolution. Skills, Science, and the Law
    • June 15, 2000
    ...Ltd.) (1990), 102 Sask. R. 78 (Q.B.).............. 319 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 193, 220 N.R. 161, var’g [1993] 5 W.W.R. 97, 104 D.L.R. (4th) 470, 30 B.C.A.C. 1 (C.A.), var’g [1991] 3 W.W.R. 97, 79 D.L.R. (4th) 185 (B.C.S.C.)..........................
  • PRIVATIZING UNCERTAINTY AND SOCIALIZING RISK: INDIGENOUS LEGAL AND ECONOMIC LEVERAGE IN THE FEDERAL TRANS MOUNTAIN BUY-OUT.
    • Canada
    • University of New Brunswick Law Journal No. 70, January 2019
    • January 1, 2019
    ...739. (4) Tsilhqot 'in Nation v British Columbia, 2014 SCC 44 [Tsilhqot 'in]. (5) Delgamuukw v British Columbia, [1997] 3 SCR 1010 , 220 NR 161 [Delgamuukw cited to (6) British Columbia, Indigenous Relations and Reconciliation 1RR-2018-80628 (17 July 2018), online: (pdf) ; British Columbi......

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