Crown lands have always belonged to the citizens of indigenous nations.
Twenty-five years ago this week, there was a profound change in the law regarding land and governance. On December 11, 1997, the Supreme Court of Canada rendered judgment in Delgamuukw / Gisday’wa vs The Queen. The Gitksan and Wet’suwet’en people used Canada’s common law to prove what they have always known – that their Aboriginal title exists. The Supreme Court unequivocally decided that Aboriginal title amounts to the entire beneficial interest in the land and further stated that Aboriginal titleholders have decision-making authority over their lands.
This ruling placed new responsibilities on federal and provincial governments. They were obligated to recognize and respect Aboriginal title and Indigenous laws. But in 1997, few knew what the Delgamuukw / Gisday’wa decision actually meant. Politicians, pundits, newspaper editors and academic influencers released regular attacks and opinions on the extent of Aboriginal title, the legitimacy of indigenous laws and the inherent right to self-government. Industry worried publicly about an uncertain business climate, while governments continued providing industry with permits to log First Nation’s trees off their lands, mine First Nation’s minerals and exploit First Nation’s lands.
After many more years and several more Supreme Court losses, governments were forced to create policy that recognized Aboriginal title and acknowledged the inherent rights of indigenous people. In 2014, the Supreme Court applied the principles set out in its 1997 Delgamuukw decision and issued a declaration of Aboriginal title to the Tsilhqot’in Nation.
Aboriginal title is legally and constitutionally enforceable.
Canadians require reconciliation between the pre-existing sovereignty of First Nations and the assumed sovereignty of the Crown. Today’s reality is that large tracts of land designated with Crown title have always belonged to the citizens of indigenous nations. And those citizens are free to govern themselves as they see fit to make decisions about their lands.
It can take a generation for profound changes in law to create profound changes in society. Today, a new generation of Indigenous leaders are addressing reconciliation by helping their people rebuild their governance and reintroduce their indigenous land laws according to the vision, priorities and mandate that comes from their people.
Reconciliation is a process where indigenous legal principles and Canada’s common law harmonize to become a new tradition in Canada’s legal framework. Together, both will form the law of the land. It is also a process where First Nations take their rightful place as the allies they should always have been at the time Canada was created.
This is how Delgamuukw / Giday’wa changed everything.