Delgamuukw v British Columbia: Aboriginal title Aboriginal rights
Recently, in Delgamuukw v British Columbia [1997] 3 SCR 1010 the Supreme Court clearly distinguished between two kinds of rights recognised by the common law of Canada, they are Aboriginal title to traditional lands and Aboriginal rights. The case itself has many parallels to the Mabo case in Australia. It took many years, from the time the case began, until finally receiving recognition in the Supreme Court of Canada.
In general, Aboriginal rights refer to activities or practices that are 'integral to the distinctive culture of the people'. They need not necessarily be related to land. (R v Van der Peet (1996) 137 DLR (4th) 289) Aboriginal title, on the other hand, is a right to the land itself, including exclusive use and occupation for a range of purposes that need not be integral to the distinctive culture. (para 11) However, Aboriginal title is one element of Aboriginal rights, in that the land itself is integral to Aboriginal culture.
Aboriginal title arises from the prior occupation of Canada by Aboriginal peoples, that is, from physical possession as well as from the relationship between the common law and the pre-existing system of Aboriginal law. (para 115) In Delgamuukw, Chief Justice Lamer relied on the decision of High Court of Australia in Mabo v Queensland [No.2] when describing the unique character of Aboriginal title. It cannot be completely understood in the terms of either the common law or Aboriginal legal systems, but must be understood with reference to both common law and Aboriginal perspectives (para 112). Aboriginal title includes rights to minerals and is likely to include self-government rights but has inherent limits in that it cannot be used in a way that would destroy the title.
In general, Aboriginal rights refer to activities or practices that are 'integral to the distinctive culture of the people'. They need not necessarily be related to land. (R v Van der Peet (1996) 137 DLR (4th) 289) Aboriginal title, on the other hand, is a right to the land itself, including exclusive use and occupation for a range of purposes that need not be integral to the distinctive culture. (para 11) However, Aboriginal title is one element of Aboriginal rights, in that the land itself is integral to Aboriginal culture.
Aboriginal title arises from the prior occupation of Canada by Aboriginal peoples, that is, from physical possession as well as from the relationship between the common law and the pre-existing system of Aboriginal law. (para 115) In Delgamuukw, Chief Justice Lamer relied on the decision of High Court of Australia in Mabo v Queensland [No.2] when describing the unique character of Aboriginal title. It cannot be completely understood in the terms of either the common law or Aboriginal legal systems, but must be understood with reference to both common law and Aboriginal perspectives (para 112). Aboriginal title includes rights to minerals and is likely to include self-government rights but has inherent limits in that it cannot be used in a way that would destroy the title.
Keywords: British Columbia, Canada, Common Law, Delgamuukw v British Columbia, First Nations Canada, indigenous people, International Court Case, International law, Mabo v Queensland No.2, R v Van Der Peet (1996), Supreme Court of Canada, 1997
Author: Strelein, Lisa