Delgamuukw and Others v. The Queen in Right of British Columbia and Others; First Nations Summit and Others, Interveners

Abstract

Human rights — Property rights — Recognition of indigenous land rights — Legal rights of the Gitksan and Wet’suwet’en aboriginal peoples over territory in British Columbia — Whether aboriginal peoples possessing aboriginal title — Whether aboriginal peoples having right to self-government — Relationship between aboriginal rights and aboriginal title — Aboriginal rights encompassing aboriginal title — Nature and content of aboriginal title — Sui generis character of aboriginal title — Proof of aboriginal title — Relevance of oral history evidence of use and occupation of territory — Relevance of aboriginal perspectives — Common law aboriginal title — Effect of Section 35(1) of Constitution Act 1982 recognizing and affirming existing aboriginal rights — Nature and scope of constitutional protection afforded by Section 35(1) of Constitution Act 1982 — Whether any limitation to aboriginal rights — Whether aboriginal rights absolute — Whether infringement of aboriginal rights by government permissible — Test of justification

Territory — Title — Occupation of Canada by aboriginal peoples before assertion of British sovereignty — Source of aboriginal title — Relevance of Royal Proclamation of 1763 — Requirements for proof of aboriginal title — Relevance of physical fact of occupation — Common law principle that occupation proving possession of land in law — Whether claimants occupying land prior to British sovereignty — Whether continuity between present and pre-sovereignty occupation — Whether occupation was exclusive — Whether aboriginal title surviving colonization — Fiduciary obligation of Crown to aboriginal peoples — Reconciling aboriginal interests with sovereignty of the Crown — Section 91(24) of Constitution Act 1867 — Whether Federal Government having exclusive jurisdiction over aboriginal rights — British Columbia joining Confederation in 1871 — Whether British Columbia having power to extinguish aboriginal rights after 1871 — The law of Canada