## Facts

- Gitksan and Wet’suwet’en hereditary chiefs claimed Aboriginal title and related authority over about 58,000 square kilometres in northwestern British Columbia.
- The claimed area included traditional territories, overlapping Indigenous claims, and substantial non-Indigenous settlement.
- British Columbia had generally not entered treaties covering most of the province, and much of the territory remained unceded.
- After negotiations failed and the province authorized extensive logging without consent, the chiefs sued seeking recognition of “ownership and jurisdiction” and declarations tied to self-government.
- At trial, the plaintiffs relied heavily on oral histories (adaawk and kungax), cultural evidence, and evidence of Indigenous legal and political orders to show longstanding occupation and governance.
- The trial judge gave little weight to oral history evidence, rejected the claim as not establishing common-law “ownership,” and found any rights were extinguished by Crown grants and other measures.

## Issues

1. Whether the courts below mischaracterized the claim and improperly limited consideration of Aboriginal title and related rights because of pleadings.
2. Whether Aboriginal title is a distinct Aboriginal right protected by s. 35(1) of the Constitution Act, 1982, and what its content is.
3. What legal test governs proof of Aboriginal title, including the meaning of pre-sovereignty occupation, continuity, and exclusivity.
4. How courts must treat oral history and other Indigenous evidence when adjudicating Aboriginal title claims.
5. Whether British Columbia had constitutional authority after Confederation to extinguish Aboriginal rights, and what “clear and plain intention” requires.
6. How the Sparrow framework applies to infringements of Aboriginal title, including consultation and compensation.
7. Whether the record permitted recognition of a freestanding Aboriginal right of self-government.

## Decision

- The Supreme Court allowed the appeal in part, dismissed British Columbia’s cross-appeal, and ordered a new trial.
- The Court declined to make a final declaration of Aboriginal title because the trial process contained serious legal and evidentiary errors.
- The Court held Aboriginal title is a constitutionally protected right in land, conferring communal exclusive use and occupation, subject to the Crown’s underlying title.
- The Court held the trial judge improperly discounted oral histories and failed to apply evidentiary rules in a way that fairly accommodates Aboriginal claims.
- The Court held British Columbia lacked authority after 1871 to extinguish Aboriginal rights; extinguishment requires a clear and plain intention by the competent Crown actor, which was not shown.
- The Court declined to resolve a freestanding self-government right on the pleadings and record presented.

## Legal Principles

- Aboriginal title is a sui generis right in land grounded in Indigenous occupation prior to the Crown’s assertion of sovereignty and protected by s. 35(1).
- The content of Aboriginal title includes the right to exclusive use and occupation of land for a broad range of purposes, including modern uses, subject to the limit that uses cannot be irreconcilable with the group’s special relationship to the land.
- Aboriginal title is inalienable except to the Crown; it cannot be transferred to third parties but can be surrendered to the Crown.
- Proof of Aboriginal title requires: (1) pre-sovereignty occupation, (2) continuity where present occupation is used to infer prior occupation, and (3) exclusivity at sovereignty, assessed using both common-law and Indigenous viewpoints.
- Courts must treat oral history evidence as potentially essential proof of pre-sovereignty occupation and apply evidentiary rules flexibly to avoid systematic disadvantage to Indigenous claimants.
- Extinguishment of Aboriginal rights requires a clear and plain intention by the competent authority; provincial land grants may infringe title but do not, without more, establish extinguishment.
- Infringements of Aboriginal title are analyzed under Sparrow: a claimant shows prima facie infringement; the Crown must justify by a compelling and substantial objective and compliance with fiduciary obligations, which may require consultation and, in some circumstances, compensation.

## Conclusion

The Court ordered a new trial while establishing a controlling framework for the nature, proof, evidentiary treatment, and constitutional protection of Aboriginal title, limiting provincial extinguishment power and setting justification requirements for governmental infringements, including consultation and potential compensation.


Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (Can.)