Delgamuukw is a landmark court case in Canadian history that acknowledged the existence of Aboriginal title. Decolonize.ca recognizes the 50th anniversary of the Calder vs. B.C. Supreme Court decision as an important moment in the ongoing struggle for Indigenous rights.
decolonize.ca in the Canadian state would like to acknowledge that January 31, 2023, marks the 50th anniversary of the landmark Calder vs. B.C. Supreme Court decision, which rendered the first acknowledgement of Aboriginal title within the scope of Canadian law.
This anniversary also takes place just one year after the passing of Delgamuukw, the Wet’suwet’en Hereditary Chief whose name is known in Canadian history for the landmark 1997 Supreme Court decision on Aboriginal title.
The Delgamuukw case saw the term Aboriginal title first established in the 1973 Calder vs. B.C. case, further asserted into Canadian law in 1997. That decision became the legal basis for the first successful declaration of Aboriginal title in Canada by the Tsilhqot’in Nation in 2014.
While the Tsilhqot’in Nation managed to have their land claim recognized, the Gitxsan and Wet’suwet’en people represented in the Delgamuuk case have yet to achieve the same, as a second trial in the case has yet to take place.
Despite that, the Delgamuukw-Gisday’wa decision still holds substantial legal significance for its’ use of oral testimony of Indigenous leaders as evidence of their people’s ancestral inhabitants. This testimony was integral to the Supreme Court’s decision on Aboriginal title encompassing the right to exclusive use and occupation of the Wet’suwet’en and Gitxsan people’s traditional territory.
The struggle for rights to land, language and culture is not new for the Wet’suwet’en and Gitxsan people, with the fight for their sovereignty spanning almost two centuries. From the time the first fur traders, missionaries, and pioneers reached the lands that would later be claimed as so-called British Colombia, the Wet’suwet’en and Gitxsan people have had conflict with the various settler forces infringing on their territory.
When British Colombia entered Canada’s confederation in 1871, the Canadian government made it illegal for First Nations people to fish commercially. In 1872, a smallpox epidemic that peaked a decade earlier continued to threaten First Nations communities across the territory, wiping out a large portion of the Indigenous population in the Pacific coastal regions.
Five years later, the Indian Act was passed in 1876, and with revisions made in the 1880s, the act would soon prohibit Indigenous people from participating in ceremonies, community feasts or peaceful assemblies.
Some thirty years after the 1894 amendment to the Indian Act made attendance at residential schools mandatory, an amendment in 1927 made it illegal for First Nations communities to raise funds or hire lawyers to pursue land claims.
First Nations people resisted the policies of the Indian Act well into the 20th century. However, after increased expansion of the Canadian state’s colonial project, death and disease would be brought to many Indigenous communities by the time the outbreak of the Spanish Flu hit its peak in the second half of 1918.
Apart from the spread of disease, First Nations people were subject to increased land incursion by the Canadian military and Parks Canada. Indigenous people were also subject to religious manipulation by Papal missionaries like Catholic priest Adrien-Gabriel Morice, with many rivers, lakes and forts in British Colombia still bearing the name Morice till this day.
With these and many other combining factors, the population of First Nations people reached a historical low point in the 1920s, with the genocidal residential school system peaking in the early 1930s.
Modern Age Sparks New Fight For Indigenous Sovereignty
In an attempt to assert position and status in society, many Indigenous people living in Canada willingly joined, or were coerced into fighting for the Canadian state during the first and second world wars. During these wars, Canadian military bases were established on Indigenous territory, with many Indigenous soldiers returning home to find themselves forced back onto Indian Reserves.
In 1945, the Canadian government abolished the pass system, which restricted all Indigenous people with status to those reserves for more than a half-century.
Soon after the second world war, after obtaining once-revoked fundamental rights such as freedom of movement and freedom of assembly, Indigenous people living in Canada became more involved in Canadian society. With these newly established freedoms, First Nations people living in the Canadian state managed to organize and advocate for their rights and claims to land in ways that were once unattainable in the previous century.
In 1946, Canadian Parliament created a special joint committee to assess the effects of the Indian act. By the second half of the 1950s, activism continued to rise on First Nations reserves, with widespread Indigenous rights movements blossoming across the Canadian state.
By the late 1950s, Indigenous people living in so-called Canada could again fish commercially, hold Feasts and pursue land claims in Canadian courts. However, most land claims at that time were delayed, dismissed, or ignored entirely.
In 1959, Indigenous people with status were granted the right to participate in Canadian elections and hold public office. However, just as the Indigenous people of Turtle Island living in the Canadian state began to achieve their own sovereignty, the government of so-called Canada quickly moved to reestablish itself on the same jingo-colonial principles it was founded on.
Later that year, the Canadian government allowed blasting to clear boulders that retained salmon in the Bulkley River. After the blasting, the Hagwilget village fishery would be without fish for more than 50 years, sparking litigation that remained unresolved until 2009, with the Canadian government agreeing with residents on a settlement of $21.5 million.
By the 1960s, a ‘Red Power‘ movement emerged across the Canadian state, inspired by the Black Power movement south of the border in the United States. Indigenous activists called for decisive and aggressive actions, with many land defenders borrowing the famous phrase stated by Black liberation leader Malcolm X, “by any means necessary.”
Throughout the 1960s, Indigenous activists began to publicly detest the noted abuses of First Nations people at the hands of the Canadian state, along with the deplorable living conditions that many Indigenous people living in so-called Canada were forced to endure.
In 1966, anthropologist Harry B. Hawthorn published a crown-commissioned report on the social conditions of First Nations people in Canada.
The report “A Survey of the Contemporary Indians of Canada: Economic, Political, Educational Needs and Policies.” concluded that First Nations people living in Canada were the most marginalized and disadvantaged group of people among the Canadian population, describing them as a ‘citizen minus.’
This class status was attributed to years of abusive government policy, including the residential school system, which was noted to have disadvantaged generations of Indigenous children by failing to provide the essential needs and necessary skills required to succeed and survive in adulthood.
Hawthorne’s report recommended that all forced assimilation programs be abolished immediately and that Indigenous people living in Canada be seen as ‘citizens plus,’ given fair treatment, and given access to the resources needed to establish self-sovereignty
Later that year, as a part of the ‘Just Society’ platform, Jean Chrétien, then Minister of Indian Affairs, was tasked with making foundational changes to the Indian Act.
The following year, Prime Minister Trudeau and Indian Affairs Minister Chrétien issued what is known today as ‘the White Paper‘ (officially entitled Statement of the Government of Canada on Indian Policy).
The White Paper proposed the total abolition of all legal documents on Indigenous matters that had previously existed in Canadian law, including the Indian Act and all other existing treaties in Canada. The statement proposed recognizing First Nations people as an ethnic group would obtain equality among all other Canadian citizens.
The statement was met with widespread criticism, as many Indigenous activists felt the proposal reflected that forced assimilation in Canada still existed and remained the government’s long-term goal.
The White Paper was officially withdrawn the following year, but not before the Union of British Columbia Indian Chiefs was formed in response.
Calder v. B.C. Case Forces Acknowledgement Of Aboriginal Title
The same year the White Paper was published, Frank Calder and the Nisga’a Nation Tribal Council brought legal action against the government of British Columbia; with a declaration that Aboriginal title to their traditional territory had never been lawfully extinguished.
The Calder v British Columbia hearing took place in late 1971, with the decision rendered on January 31, 1973. The Calder decision was the first time Canadian law acknowledged that Aboriginal land title existed before the colonization of Turtle Island and that it was not merely derived through treaty or statutory law.
The Supreme Court of Canada recognized that the Nisga’a had Aboriginal title to the lands dating back to before European settlers arrived since the Nisga’a had been “organized in societies and occup[ied] the land as their forefathers had done for centuries.”
In the Calder case, the courts found that if there ever was Aboriginal land title, it was indeed extinguished by the colonizing forces. However, the court was split three to three on whether that title was still valid or had been lawfully extinguished by some means of succession. Due to this split, the two three-justice groups developed competing tests to determine Aboriginal title and ultimately came to differing conclusions.
In the end, the court’s decision concluded that while Aboriginal title within the borders of then Canada could exist, more was required to demonstrate that the First Nations in question held such title to those territories.
While most Indigenous rights advocates at the time saw the ruling as controversial, the decision caused the Canadian government to overhaul much of the negotiation process involving land claims with First Nations people. It was the first of many cases that would go on to definitively assert the right of Aboriginal title in Canadian courts.
decolonize.ca in the Canadian state would like to acknowledge the 50th anniversary of this landmark supreme court decision and to honour the memory of Mr. Frank Arthur Calder (August 3, 1915 – November 4, 2006).
Frank Calder was a hereditary chief of the House of Wisinxbiltkw from the Killerwhale Tribe and the founder of the Nisga’a Tribal Council, who spearheaded the litigation effort for his people against the Candian government and continued to fight for Nisga’a treaty rights for decades after the 1973 decision.
By appealing this case to the highest court in Canada, the Nisga’a land claim, which was argued by Thomas Berger, managed to establish that Aboriginal title exists in modern Canadian law, which became the basis for British Columbia’s Nisga’a treaty.
Before the Calder case, Indigenous rights defenders had no transparent process for asserting land claims in Canadian courts. The Calder case clarified that at the time of the decision in 1973, nearly 40% of Canada’s land mass was negotiable with First Nations people.
Shortly after the decision was published, Canada developed a land claim policy to help guide negotiations between the government and First Nations groups.
The Calder decision was a bittersweet moment for Indigenous land defenders like Frank Calder, who had fought for so long to gain recognition and legal claim to their own traditional territory. Though the ruling was understood as an overall victory for many First Nations groups, the court’s decision was still limited in scope and would need to be challenged with more proceedings soon after.
Just a few years after the Calder ruling, the colonizers of Canada were negotiating the repatriation of the Constitution of Canada, which many Indigenous rights advocates saw as an opportunity to codify the newly established legal term Aboriginal title into Canadian law.
In response to the rising of this opportunity, Chiefs and elders from many First Nations living in Canada sent a delegation known as the ‘Constitutional Express’ to travel to England, lobbying for the inclusion of Indigenous land rights and Aboriginal title in the repatriated Canadian constitution.
The campaign garnered great success, and in 1982, the Constitution Act was passed, which included Section 35(1), stating, “The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.”
In response to the constitutional assertion of Aboriginal title, the legal team representing the Gitxsan and Wet’suwet’en people moved into action and quickly began weighing their legal options. Not long after the Constitution Act was signed, the Wet’suwet’en-Gitxsan people decided to escalate their resistance to a court battle.
Canada’s new constitution was yet to be thoroughly tested in court. With an opportunity to assert their rights, the Gitxsan-Wet’suwet’en Tribal Council began gathering evidence to present their case in front of the highest courts in the land.
The process of litigation that began in 1984 was a long and strategic battle of attrition, with each move made by the Wet’suwet’en-Gitxsan legal team having been highly thought out and in a coordinated effort, with many meetings taking place to discuss strategy for each specific goal.
The Wet’suwet’en-Gitxsan land defenders operated on the principle of a ‘diversity of tactics’ and remained focused on each goal they wanted to accomplish when carrying out their actions. When land defenders put up blockades, they did so with an intention and stated purpose. If those actions were not serving the cause of the Wet’suwet’en-Gitxsan people, they would back down, regroup and diversify their approach.
The Delgamuukw legal team were determined to take the fight to wherever it would lead, and while the last place they wanted the fight to go was the Supreme Court of Canada, they were more than prepared to take it there.
On October 24, 1984, the Gitxsan and Wet’suwet’en Hereditary chiefs filed their claim to Aboriginal title of approximately 58,000 square kilometres of land in North Western British Colombia.
Just a week later, on November 1, 1984, the Supreme Court of Canada rendered its decision in the case of Guerin v. The Queen. The Guerin ruling became integral to interpreting the newly established protections in Section 35 of the Constitution Act, as it defined the principle of “fiduciary duty” and established Aboriginal title as a sui generis right.
Delgamuukw, later anglicized to Earl Muldon, was a Gitxsan Indigenous rights leader, one of the Hereditary Chiefs in the Office of the Hereditary Chiefs of the Wetʼsuwetʼen, and a representative for the joint Tribal Council of the Gitxsan and Wet’suwet’en nations. He was 48 years old at the time of the filing in 1984 and was the main claimant in the case.
From 1984 to 1997, this team of Indigenous rights advocates and litigators took on the spirited fight for the jurisdiction of their territories in the northwest of British Colombia. The trial began in 1987 and spanned 374 days in court, from May 11, 1987, to June 30, 1990, in both Vancouver and Smithers, B.C.
Then in 1991, the Gitxsan and Wet’suwet’en people were handed a devastating blow, as a controversial decision rendered by Chief Justice Allan McEachern ruled that while First Nations people may have held Aboriginal title, that title was legally extinguished in 1871 when British Colombia entered Canada’s confederation.
Many legal and historical scholars immediately criticized McEachern for the decision, to which he referred to the pre-contact life of the Gitxsan and Wet’suwet’en as “nasty, brutish, and short.”
McEachern failed to recognize the presence of pre-contact “institutions,” systems of government, and inhabitance, and devalued Gitxsan and Wet’suwet’en people’s culture by stating, “they more likely acted as they did because of survival instincts.”
In response to the ruling, the Canadian Anthropology Society stated that the judgment “gratuitously dismisses scientific evidence, is laced with ethnocentric bias, and is rooted in the colonial belief that white society is inherently superior.”
Remaining determined, the Delgamuukw legal team appealed the McEachern ruling in 1993.
With a new provincial BC NDP government in power, the court was instructed to abandon its previous position taken at trial on the matter of extinguishment and appointed a special third-party council (amici curiae) to assist with the decision.
On June 25, 1993, the B.C. Court of Appeal officially rejected the McEachern ruling due to deficiencies relating to the pleadings and the treatment of evidence.
Chief Justice Antonio Lamer, writing for the majority at the Supreme Court of Canada, acknowledged that Chief Justice McEachern did not have 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 case was then ordered back to trial, with the appeal case heard in June of 1997.
On December 11, 1997, the Supreme Court of Canada announced its decision to grant a new trial in the Delgamuukw case, citing the court’s error in failing to recognize each of the fifty-one claims individually during the original hearings ten years prior.
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 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 decision published in the appeal of this case left a monumental mark on how Canadian courts define Indigenous land rights. Previous to the Delgamuukw decision, no Canadian court had extensively defined the meaning of Aboriginal title. While the importance of the term Aboriginal title became further defined in Canadian courts in the lead-up to the 1997 decision, the judgment remains a seminal one up until the present day.
The second trial ordered in the Delgamuukw case has never occurred, and the land claim remains unresolved. The decision did not order the government to change any of its positions on Indigenous sovereignty but only clarified what exactly defines the term Aboriginal title.
In the 25 years following the decision, the province of B.C. has maintained less than a status-quo position in its negotiations with many First Nations, with considerable violations of Indigenous sovereignty currently ongoing within the borders of so-called British Colombia and many other Indigenous territories on Turtle Island.
The Delgamuukw-Gisday’wa case did open the door for other Indigenous land claims, like the Tsilhqot’in Nation in 2014, which led to the first official declaration of Aboriginal title in Canada. However, the Tsilhqot’in nation is just one of the hundreds of First Nations that are now being forced to fight for Indigenous land title in the Canadian courts, a fight that many lack the resources to take up on their own, and for some First Nations people, time is running out.
Apart from being a Gitxsan hereditary Chief, Delgamuukw, also known as Earl Muldon, was a world-famous Gitxsan artist who received the B.C. lifetime achievement award for his Indigenous art in 2009 and was given the honour of the Order of (so-called) Canada in 2010.
We raise our fists in gratitude for the courage of both Delgamuukw and Gisday’wa, who carried in their names the strengths of their clans with honour and great responsibility.
It is with great shame that we must acknowledge that both the late Chiefs Delgamuukw and Gisday’wa, along with their people, were forced to face such ill-treatment at the hands of the ethnocentric colonial Canadian government. Only for twenty-five years later, that same government remains in a struggle to uphold the essential findings the Gitxsan and Wet’suwet’en people forced the court to produce.
In 2019, as recommended in the Canadian government’s Truth and Reconciliation Commission report, the provincial government passed the declaration on the Rights of Indigenous Peoples Act (Declaration Act) into law.
However, while the Declaration act set out to change the relationship between Indigenous people and the Crown, that change has taken place at a painful pace, and only on the terms of the Canadian state.
This, while the colonial government of so-called Canada continues to use instruments embedded in the old thinking used by the colonizers, such as the first Lieutenant Governor of British Columbia, Joseph Trutch, who believed in Terra Nullus, Manifest Destiny, and the Doctrine of Discovery.
While legal teams representing the institution of the Canadian state continue to use such colonial tactics in court, those same tactics of conflict are being used through colonial enforcement, which continues to take place in British Colombia from the days of confederation until the current present day.
Heavily armed RCMP police enforcement continues on Wet’suwet’en territory, despite numerous government officials formally agreeing on police enforcement being something the Gitxsan and Wet’suwet’en people would no longer face.
Despite the Memorandum of Understanding signed in 2020, the government of so-called Canada has continued to favour conflict over negotiation, as resource extraction projects continue to be given approval by both the provincial and federal governments. In the simplest terms, if the government of so-called Canada is continuing to allow the destruction of Indigenous territory to take place without consent, then reconciliation is not happening.
Now, after 25 years, what rests in the wake of the Delgamuukw decision is a reflection of the mythopoetic colonial folklore in which the country of Canada was established.
The Gitxsan and Wet’suwet’en people never gave up their land. They did not lose it in a war or sign it away in any treaty.
Despite what the government of so-called Canada says, the land is still that of the Gitxsan and Wet’suwet’en people, and they are going to take it back.
If they can’t do it in the courts, it will be done in the streets, and it will not be a fight that will be fought on their own.
The anniversary of these land-back decisions should spark a new wave of solidarity protest action across the Canadian-state. decolonize.ca will continue to give unrelenting solidarity and support to the Wet’suwet’en people, their right to sovereignty, and all Indigenous people living on Turtle Island.
There can be no reconciliation between the Canadian state and the Indigenous people of Turtle Island without restitution. This includes Land Back, a seizure of the major resource corporations and their sponsors (such as the Royal Bank of Canada), and returning those resources to the Indigenous people of the common lands.
For more information on upcoming actions associated with this cause, please visit Decolonial Solidarity. In the meantime, if you want to support the Wet’suwet’en resistance today, visit yintahaccess.com.