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Delgamuukw v British Columbia

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Delgamuukw v British Columbia , [1997] 3 SCR 1010 , also known as Delgamuukw v The Queen , Delgamuukw-Gisday’wa , or simply Delgamuukw , is a ruling by the Supreme Court of Canada that contains its first comprehensive account of Aboriginal title (a distinct kind of Aboriginal right) in Canada . The Gitxsan and Wet’suwet’en peoples claimed Aboriginal title and jurisdiction over 58,000 square kilometers in northwest British Columbia . The plaintiffs lost the case at trial, but the Supreme Court of Canada allowed the appeal in part and ordered a new trial because of deficiencies relating to the pleadings and treatment of evidence. In this decision, the Court went on to describe the "nature and scope" of the protection given to Aboriginal title under section 35 of the Constitution Act, 1982 , defined how a claimant can prove Aboriginal title, and clarified how the justification test from R v Sparrow applies when Aboriginal title is infringed. The decision is also important for its treatment of oral testimony as evidence of historic occupation.

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57-622: While much of the decision is technically obiter dicta (since a new trial was ordered due to errors in how the evidence and pleadings were treated), the principles from Delgamuukw were restated and summarized in Tsilhqot'in Nation v British Columbia , 2014 SCC 44. There has not yet been a second trial in this case. The Gitxsan and Wet’suwet’en peoples had attempted to negotiate jurisdiction, recognition of ownership, and self-government since Europeans first began settling on their traditional lands in

114-408: A sui generis right arising from the prior occupation of the land by Indigenous people; it is not fee simple ownership. The inherent limit (that the protected uses not be irreconcilable with the nature of the group's attachment to the land) is derived from one of the purposes of Aboriginal title: maintaining "the relationship of an aboriginal community with its land here is that it applies not only to

171-649: A Bachelor of Arts in 1949, a law degree in 1950 and was given an honorary doctor of Laws degree in 1990. McEachern practiced law with the leading Vancouver law firm of Russell and DuMoulin for 28 years after being called to the bar in 1951. He became Chief Justice of the Supreme Court of British Columbia in 1979. In 1988. he was appointed Chief Justice of the British Columbia Court of Appeal . McEachern retired from that position in May 2001. Later that year he returned to

228-565: A fiduciary duty: "to permit aboriginal people, but subject to the general law of the province, to use any unoccupied or vacant Crown land for subsistence purposes until such time as the land is dedicated to another purpose." He also dismissed the province's counterclaims for a declaration that the Gitxsan and Wet’suwet’en have no right or interest in the territory and for a declaration that their only claim for compensation could be against Canada. This decision has been criticized for both its treatment of

285-468: A forecast and each contributed to the cost of entry; but it was the grandmother's name that was on the coupon. The grandmother received £750 in prize money and refused to share it with the other two. The lodger successfully sued for one third of the prize money; but Sellers J added semble that the granddaughter should also get £250, even though she had not been a party to the action. Allan McEachern Allan McEachern (May 20, 1926 – January 10, 2008)

342-472: A judge, by way of illumination, provides a hypothetical example, this would be obiter even if relevant because it would not be on the facts of the case, as in the Carlill case (below). University of Florida scholars Teresa Reid-Rambo and Leanne Pflaum explain the process by which obiter dicta may become binding. They write that: In reaching decisions, courts sometimes quote passages of obiter dicta found in

399-585: A publisher of the Ladies Directory (a guide to London prostitutes) was convicted of "conspiracy to corrupt public morals". He appealed on the grounds that no such offence existed. The House of Lords dismissed the appeal, in effect creating a new crime. Viscount Simonds said: "...there remains in the Courts of Law a residual power ... to conserve the moral welfare of the State, and ... guard it against attacks which may be

456-550: A treaty settlement instead. The province suspended those negotiations in February 1996 and the parties revived their litigation. The appeal was heard at the Supreme Court of Canada on June 16 and 17, 1997. The six justices announced their decision on December 11, 1997. The opinion of Chief Justice Lamer attracted a majority: Justices Cory and Major joined; Justice McLachlin concurred. The concurring opinion of Justice La Forest

513-535: A woman who had used a smoke ball as prescribed could claim the advertised reward after catching influenza), Bowen LJ said: If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course [not]! United States Supreme Court 's obiter dicta can be influential. One example in

570-409: Is "said in passing" by any judge or arbitrator . It is a concept derived from English common law , whereby a judgment comprises only two elements: ratio decidendi and obiter dicta . For the purposes of judicial precedent , ratio decidendi is binding, whereas obiter dicta are persuasive only. A judicial statement can be ratio decidendi only if it refers to the crucial facts and law of

627-504: Is arguable, but subsequent rulings treat it as such. In other instances, obiter dicta can suggest an interpretation of law that has no bearing on the case at hand but might be useful in future cases. The most notable instance of such an occurrence is the history of the famous Footnote 4 to United States v. Carolene Products Co. (1938), which, while rejecting use of the Due Process Clause to block most legislation, suggested that

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684-561: Is difficult to describe what more in traditional property law terminology." In R v Adams , the Court said that Aboriginal title is a kind of Aboriginal right. Until Delgamuukw , no Canadian court had defined in detail what Aboriginal title means. And, at the outset of this case in 1984, Section 35 of the Constitution Act, 1982 was relatively new. Courts had not yet given meaning to subsection (1): "The existing Aboriginal and treaty rights of

741-401: Is infringed: the duty to consult (which varies with the degree of the infringement), and the requirement to provide fair compensation. The court said that the trial did not yield sufficient evidence to give any opinion regarding the right to self-government. The court held that the province does not have the power to extinguish Aboriginal rights, neither directly (because of Section 91(24) of

798-416: Is not crucial, it is obiter . If a court rules that it lacks jurisdiction to hear a case (or dismisses the case on a technicality), but still goes on to offer opinions on the merits of the case, such opinions may constitute obiter dicta . Other instances of obiter dicta may occur where a judge makes an aside to provide context for the opinion, or makes a thorough exploration of a relevant area of law. If

855-487: Is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means... In Guerin v The Queen , the Court described Aboriginal title as a sui generis right, not found elsewhere in property law. In Canadian Pacific Ltd v Paul , the Court elaborated, "it is more than the right to enjoyment and occupancy, although, … it

912-601: The High Trees case, Mr Justice Denning was not content merely to grant the landlord's claim, but added that had the landlord sought to recover the back rent from the war years, equity would have estopped him from doing so. Given that the landlord did not wish to recover any back rent, Denning's addition was clearly obiter , yet this statement became the basis for the modern revival of promissory estoppel . Similarly, in Hedley Byrne & Co Ltd v Heller & Partners Ltd ,

969-474: The 2020 Canadian pipeline and railway protests , begun in solidarity with Wet’suwet’en hereditary chiefs opposed to the development of the Coastal GasLink Pipeline through territory to which they claim rights and title. Obiter dicta Obiter dictum (usually used in the plural, obiter dicta ) is a Latin phrase meaning "other things said", that is, a remark in a legal opinion that

1026-484: The Constitution Act, 1867 ) nor indirectly through laws of general applicability (because they could not indicate clear and plain intent). Both opinions concluded by encouraging all parties to pursue negotiated agreements through good faith negotiations. [T]he Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by

1083-678: The House of Lords held, obiter , that negligent misstatement could give rise to a claim for pure economic loss , even though, on the facts, a disclaimer was effective in quashing any claim. Also, in Scruttons Ltd v Midland Silicones Ltd , Lord Reid proposed that while doctrine of privity of contract prevented the stevedores in this instance from benefiting from protection of an exemption clause, in future such protection could be effective if four guidelines (which he went on to list) were all met. In Carlill v Carbolic Smoke Ball Company (a case whether

1140-558: The Social Credit Party to the New Democratic Party . The new government abandoned the position taken at trial on the issue of extinguishment, so amici curiae were appointed to assist the court on that issue. On June 25, 1993, five members of the British Columbia Court of Appeal unanimously rejected Justice McEachern's ruling that all of the plaintiffs' Aboriginal rights had been extinguished. The Court of Appeal ordered

1197-437: The 1800s. The Canadian federal government received the Gitxsan declaration of claim in 1977, but British Columbia would not participate in the land claims process. By 1984, British Columbia had begun to allow clear-cut logging in the Gitxsan and Wet’suwet’en territory without permission from the hereditary chiefs. On October 24, 1984, thirty-five Gitxsan and thirteen Wet’suwet’en hereditary chiefs filed their statement of claim with

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1254-675: The Aboriginal peoples of Canada are hereby recognized and affirmed", although the meaning was fairly well developed by the time the case made it to the Supreme Court in 1997. The defendant, born May 16, 1936, as 'Delgamuukw', served as a Gitxsan Indigenous rights leader, as one of the Hereditary Chiefs in the Office of the Hereditary Chiefs of the Wetʼsuwetʼen , and as a representative for

1311-624: The B.C. Lions (1967–69), President of the Canadian Football League, the third commissioner of the Canadian Football League and Ethics Commissioner for VANOC. McEachern's career was not without controversy. B. Douglas Cox described McEachern's judgement in the 1991 Gitskan-West'suwet'en land claim case Delgamuukw et al. v. The Queen as "a stunning disappointment." In the judgement, McEachern commented that "it would not be accurate to assume that even pre-contact existence in

1368-536: The British Columbia Supreme Court. By the 1970s, the courts had "begun to acknowledge the existence of Aboriginal legal rights in the land other than those provided for by treaty or statute." In Calder v British Columbia (AG) , the Supreme Court recognized that Aboriginal title to land was based in "historic occupation and possession" of their traditional territories and "does not depend on treaty, executive order or legislative enactment." [T]he fact

1425-542: The Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land." The second trial that was ordered has never happened, so the claim in this case remains unresolved. In the years soon after the decision, the province largely maintained its negotiating position, only changing it minimally. The decision did not order

1482-856: The Legal Aid Society from 1975 to 1976 and served from 1996 to 2001 as vice-chair of the Canadian Judicial Council , the body responsible for dealing with issues relating to the performance of federally appointed judges in Canada. McEachern also served as a Director of the Vancouver Bar Association, President of the Legal Aid Society, Bencher of the Law Society and a member of the Council of the Canadian Bar Association, President of

1539-471: The Supreme Court's history is the 1886 case Santa Clara County v. Southern Pacific Railroad Co. . A passing remark from Chief Justice Morrison R. Waite , recorded by the court reporter before oral argument, now forms the basis for the doctrine that juristic persons are entitled to protection under the Fourteenth Amendment . Whether or not Chief Justice Waite's remark constitutes binding precedent

1596-467: The benefit of the reasons from R v Van der Peet , which says "courts must not undervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards [applied in other contexts]." The Gitxsan and Wet’suwet’en appealed. In the time between the trial judgement and the appeal, the British Columbia government changed parties , from

1653-502: The case back to trial to determine the nature and scope of those Aboriginal rights. Two of the justices, in dissent, would have gone further to also allow the appeal on the issue of Aboriginal title and to send that question back to trial as well. In March 1994, the Gitxsan and Wet’suwet’en and the Province of British Columbia were granted leave to appeal to the Supreme Court of Canada. However, they obtained an adjournment in order to pursue

1710-525: The case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law issues, are obiter dicta . Obiter dicta (often simply dicta , or obiter ) are remarks or observations made by a judge that, although included in the body of the court's opinion, do not form a necessary part of the court's decision. In a court opinion, obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument". Unlike ratio decidendi , obiter dicta are not

1767-449: The clause might be applied to strike down legislation dealing with questions of "fundamental right". This obiter dictum is generally considered to have led to the doctrine of strict scrutiny (and subsequently intermediate scrutiny ) in racial-, religious-, and sexual-discrimination cases, first articulated in Korematsu v. United States (1944). The judgment of Korematsu v. United States

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1824-456: The conclusion that the appellants had not demonstrated the requisite degree of occupation for "ownership". Had the trial judge assessed the oral histories correctly, his conclusions on these issues of fact might have been very different. Chief Justice Lamer summarized the content of Aboriginal title: I have arrived at the conclusion that the content of aboriginal title can be summarized by two propositions: first, that aboriginal title encompasses

1881-578: The government to change its position and the decision made clear how valuable Aboriginal title is. The government adopted some interim measures that shared some of the economic benefits resulting from resource development in land-claims areas. The response from the various First Nations in British Columbia varied: some interested in the treaty negotiation process, some in the economic integration through interim measures, and some considering additional litigation. Delgamuukw has featured in discussion around

1938-707: The joint Tribal Council of the Gitxsan and Wet’suwet’en nations. In 1997, for the purpose of the court proceedings, 'Delgamuukw', then 61, had his name anglicized as 'Earl Muldoe'. In 2010, Muldoe was also designated as a ' Companion of The Order of Canada ' for his paintings and artistry. Delgamuukw died on January 3, 2022, at the age of 85. In 1984, Gitxsan and Wet’suwet’en hereditary chiefs claimed, on behalf of their Houses, unextinguished Aboriginal title and jurisdiction over territory in northwest British Columbia totalling 58,000 square kilometres, and compensation for land already alienated . Delgamuukw (English name Earl Muldoe)

1995-592: The judgments of this Court, that we will achieve what I stated in Van der Peet to be a basic purpose of s. 35(1) -- “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”. [internal citations removed] The principles established by Delgamuukw were restated and summarized in Tsilhqot'in and the inherent limit was reworded. There, the Court said that Aboriginal title "cannot be alienated except to

2052-480: The land. Sixty-one witnesses gave evidence at trial, many in their own languages, using translators. Some witnesses sang or described ceremonial songs and performance relating the adaawḵ (the personal bloodline histories) of the Gitxsan and kungax (a song or songs about trails between territories) of the Wet’suwet’en. Some of this knowledge was translated into maps. The judgement from Chief Justice Allan McEachern

2109-604: The majority decision in Shaw , but in the interests of certainty he would not overturn Shaw . Akin to obiter is the concept of semble ( Norman French for "it seems"), indicating that the point is uncertain or represents only the judge's opinion. For example, in Simpkins v Pays (1955), a grandmother, granddaughter and a lodger entered into weekly competitions in the Sunday Empire News . Each week, all three women together made

2166-519: The more insidious because they are novel and unprepared for." In a dissenting judgment, Lord Reid said: "Parliament is the proper place, ... to [create new criminal laws]. Where Parliament fears to tread it is not for the courts to rush in." Subsequently, Lord Reid was the leading judge in Knuller v. DPP , a case on obscene libel in which a publisher was charged with "conspiracy to corrupt public morals". In this case, Lord Reid said he still disagreed with

2223-598: The occupancy of the land is "sufficiently important to be of central significance to the culture of the claimants." As with other Aboriginal rights, Aboriginal title can be infringed. The majority in Delgamuukw clarified how the justification test developed in R v Sparrow and modified in R v Gladstone applies when Aboriginal title is infringed. The majority affirmed the broad characterization of compelling and substantial legislative objectives that might warrant an infringement: "legitimate government objectives also include

2280-470: The oral evidence and for its tone. Chief Justice McEachern described pre-contact life of the Gitxsan and Wet’suwet’en as "nasty, brutish, and short." He didn't recognize pre-contact "institutions" and instead said that "they more likely acted as they did because of survival instincts." He was "unable to accept adaawk, kungax and oral traditions as reliable bases for detailed history but they could confirm findings based on other admissible evidence." He described

2337-517: The past, but to the future as well." The majority places Aboriginal title on a spectrum alongside other Aboriginal rights: The majority also lays out the test for proving Aboriginal title: "(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." That will be enough to demonstrate that

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2394-417: The position of the Gitxsan and Wet’suwet’en as "idyllic" and "romantic". The Canadian Anthropology Society said the judgement "gratuitously dismisses scientific evidence, is laced with ethnocentric bias and is rooted in the colonial belief that white society is inherently superior." Chief Justice Lamer, writing for the majority at the Supreme Court of Canada, acknowledged that Chief Justice McEachern did not have

2451-450: The practice of law at his former firm, now called Fasken Martineau DuMoulin . His career as Chief Justice in both courts was distinguished by his reform of court procedure and for bringing the Canadian legal system closer to the public by being the first judge in Canada to host his own web site, which invited the public to e-mail their questions about the legal system. In addition, he chaired

2508-416: The pursuit of economic and regional fairness and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups." It then goes further: the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and

2565-404: The rest of the opinion is technically obiter dicta , but it is still significant in that it has been restated and summarized in Tsilhqot'in Nation v British Columbia . The majority also found that the factual findings of the trial court could not stand because Justice McEachern's approach did not meet the principles laid out in R v Van der Peet . Notwithstanding the challenges created by

2622-399: The right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group's attachment to that land. The majority affirms that this is

2679-457: The settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of Aboriginal title. The second prong of the justification test asks whether the infringement is "consistent with the special fiduciary relationship between the Crown and aboriginal peoples." This fiduciary relationship gives rise to two additional components when Aboriginal title

2736-406: The subject of the judicial decision, even if they happen to be correct statements of law. The so-called Wambaugh's Inversion Test provides that to determine whether a judicial statement is ratio or obiter , you should invert the argument, that is to say, ask whether the decision would have been different, had the statement been omitted. If so, the statement is crucial and is ratio ; whereas if it

2793-419: The territory was in the least bit idyllic. The plaintiffs' ancestors had no written language, no horses or wheeled vehicles, slavery and starvation was not uncommon, wars with neighbouring peoples were common, and there is no doubt, to quote Hobbes, that aboriginal life in the territory was, at best, 'nasty, brutish and short.'" This characterization is still subject to significant criticism. McEachern's decision

2850-553: The texts of the opinions from prior cases, with or without acknowledging the quoted passage's status as obiter dicta . A quoted passage of obiter dicta may become part of the holding or ruling in a subsequent case, depending on what the latter court actually decided and how that court treated the principle embodied in the quoted passage. Under the doctrine of stare decisis , statements constituting obiter dicta are not binding, although in some jurisdictions, such as England and Wales , they can be strongly persuasive. For instance, in

2907-404: 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. The trial judge, after refusing to admit, or giving no independent weight to these oral histories, reached

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2964-492: Was a Canadian lawyer, a judge, and a Chancellor of the University of British Columbia . McEachern's first wife, Gloria, died in 1997 after 44 years of marriage. Two years later, he married Appeal Court Justice Mary Newbury. McEachern graduated from the University of British Columbia with a Bachelor of Arts in 1949, followed by a law degree in 1950. McEachern became UBC's 16th chancellor in 2002. He graduated from UBC with

3021-754: Was a claimant for the Gitxsan, while Gisday’wa (Alfred Joseph) was one of those representing the Wet’suwet’en. The claim for jurisdiction was novel. If that claim were to have succeeded, Indigenous laws would prevail in the case of conflict with provincial law. BC argued that the "plaintiffs had no right or interest in the land, and that their claim for compensation ought to be against the federal government." The trial took 374 days (318 days of evidence and 56 days of closing argument), spanning May 11, 1987, to June 30, 1990, in Vancouver and Smithers, British Columbia . The Gitxsan and Wet’suwet’en relied upon their oral histories as evidence about their historical relationship with

3078-804: Was itself condemned by the same court in obiter dictum in Trump v. Hawaii (2018). The arguments and reasoning of a dissenting judgment (the term used in the United Kingdom also constitute obiter dicta . These, however, might also be cited should a court determine that its previous decision was in error, as when the United States Supreme Court cited Justice Oliver Wendell Holmes Jr. 's dissent in Hammer v. Dagenhart when it overturned Hammer in United States v. Darby Lumber Co. In Shaw v DPP [1962]

3135-400: Was joined by Justice L'Heureux-Dubé ; Justice McLachlin was in substantial agreement. Both the majority and concurrence agreed that it was an error to "[amalgamate] the individual claims brought by the 51 Gitksan and Wet’suwet’en Houses into two collective claims, one by each nation, for Aboriginal title and self-government." The court found this error sufficient to call for a new trial. Thus,

3192-459: Was overturned by the Supreme Court of Canada in Delgamuukw v. British Columbia. He was granted an honorary Doctor of Laws degree by the University of British Columbia in 1990. He was a Life Bencher of the Law Society of British Columbia . In addition to his many judicial decisions, during his tenure as Chief Justice of both courts, McEachern is credited with streamlining the procedures of

3249-449: Was released on March 8, 1991. Contrary to legal precedents such as Calder v British Columbia (AG) , Judge McEachern dismissed the plaintiffs' claims to Aboriginal title, jurisdiction (self-government), and Aboriginal rights in the territories. Despite finding that Aboriginal rights of the Gitxsan and Wet’suwet’en had been extinguished, Chief Justice McEachern found that the Crown had made promises beginning in 1859 and 1860 that gave rise to

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