Delgamuukw v. BC

Delgamuukw v. British Columbia

Year: 1997

Court: Supreme Court of Canada

Citation: [1997] S.C.R. 1010

Location: BC

TAGS: Aboriginal Title

Aboriginal title is held collectively by a group and includes the right to exclusive use and occupation of the land. To establish Aboriginal title, an Indigenous group must prove that there was sufficient and exclusive occupation of the land and that Aboriginal title has not already been provided for in treaty or extinguished by other lawful means. 


In 1984 the Gitxsan and Wet’suwet’en Nations brought action against the province of British Columbia, claiming jurisdiction over 58,000 square kilometers of northwestern BC. The BC government argued at trial that all Aboriginal land rights in BC had been extinguished by laws of the colonial government. The Court of Appeal unanimously decided that no such extinguishment had taken place. At the Supreme Court of Canada (SCC), the BC government argued that Aboriginal title was primarily a collection of rights to engage in traditional activities. The SCC determined that a new trial was necessary to decide whether the Gitxsan and Wet’suwet’en have Aboriginal title over the land they claimed. Nonetheless, this is considered a landmark case because of statements made by the judges that dictate how Aboriginal rights and title disputes are to be approached. 

Why this Case Matters:

This case was the first full trial on the issue of Aboriginal title after the Calder decision in 1973 that Aboriginal title potentially still existed as a common law right.  The case defined the content of Aboriginal title. The SCC declared that Aboriginal title includes the right to exclusive use and occupation of the land. The land can be used for a variety of purposes, not limited to traditional practices or customs integral to culture. Aboriginal title was further defined as collective title held by a group, meaning that the land cannot be used or developed in a way that would deprive future generations of the use or benefit of the land. Finally, the SCC stated that Aboriginal title land cannot be sold or transferred except to the Crown. 

This case was also important because it established the legal criteria that an Indigenous group must prove to establish Aboriginal title. First, the group’s traditional use and occupancy of the territory must have been “sufficient” at the time of assertion of British sovereignty. For instance, the regular use of territory for hunting, fishing, or trapping will be considered “sufficient” to ground Aboriginal title. Second, the occupation of the territory by the Indigenous group must have been exclusive, meaning that there is evidence the group had the capacity or intention to retain exclusive control. Finally, the Indigenous group’s title and rights to resource use must not have already been provided for by treaty, not eliminated by other lawful means. 

Supreme Court Judgment:

CanLII – Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010

Go Deeper:

Gitxsan Government – The Delgamuukw Court Action

BC Treaty Commission – A Lay Person’s Guide to Delgamuukw

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