25 years on, the battle to enforce a monumental Supreme Court decision rages on

This year marks the 25th anniversary of the Supreme Court of Canada’s historic 1997 Delgamuukw decision on Aboriginal title. Wet’suwet’en and Gitxsan nations brought the watershed case to the Supreme Court, yet a countrywide battle remains over implementation of the Delgamuukw decision involving all First Nations.

The nations sought a declaration of ownership and jurisdiction over their lands. The Supreme Court agreed that Indigenous Peoples held a unique property right to their land. It was a collective interest held by the nation.

The case represented a new possibility to seek legal action against the government for control over Indigenous territories.

First Nation leaders seized the moment to reform the land claims policy. They argued that it no longer aligned with Canadian law because the policy required Indigenous people to cede their title to the Crown. If Delgamuukw recognized the unique proprietary interests of Indigenous Peoples to their land, First Nations asked, why should they be forced to surrender this inherent right through federal policy?

The struggle over the land claims policy following Delgamuukw is a crucial chapter in the #LandBack movement. It forecast the possibilities for land reclamation and decolonization moving forward.

The fragility of the Crown

Before Delgamuukw, the concept of Aboriginal title as a property right was subject to a kind of plausible deniability.

The 1973 Supreme Court of Canada decision in R. v. Calder first wobbled that deniability when it found the creation of British Columbia did not automatically extinguish “Indian title.” The decision led then-prime minister Pierre Trudeau to reportedly observe: “Maybe you have more rights than we thought you did.”

The case ushered in the comprehensive claims policy. What soon became clear, though, was that the new claims policy rested on the old colonial model of sovereignty established by the British: it required Indigenous Peoples to cede, surrender and release their title rights to the Crown. It was a policy, in other words, of extinguishment.

But it was the only land claims policy, and significant benefits were associated with these agreements. While some nations hopefully entered negotiations, others turned to the courts, especially after the patriation of Aboriginal rights into the Constitution in 1982.

A moment seized

By the time Delgamuukw came down, the struggle was long underway to reform the comprehensive claims policy. When the Liberals came to power under Jean Chrétien in 1993, the party’s Red Book committed to an independent claims commission to address the government’s conflict of interest in the resolution of claims.

In 1996, First Nation drafters of this policy publicly burned the Red Book outside a Liberal convention, disgusted with the government’s failure to fulfil its promises.

Liberal indifference persisted. But Delgamuukw increased pressure across the country.

One Assembly of First Nations (AFN) resolution in 1998, for example, found in the Pete Di Gangi Papers called for the “complete rejection of the concept of extinguishment, and any equivalent concept, such as ‘surrender and grant back’” as the premise for settling new treaties.

Canada set up discussions with AFN representatives to undertake a Delgamuukw national review process. But within a couple of years, a freedom-of-information request received from B.C.’s Ministry of Indigenous Relations and Reconciliation shows some First Nations were declaring the process a “smokescreen for the continued refusal to recognize Aboriginal title.”

A moment destroyed

The AFN created the Delgamuukw Implementation Strategic Committee (DISC) in 1998 to prepare legal briefs and establish new mandates for the Department of Indian Affairs to review and revise the land claims policy in light of the legal decision.

The DISC made several key recommendations to Ottawa in May 2000. They included establishing a panel of experts to compare the comprehensive claims policy to the principles contained in Delgamuukw. Canadian officials instead confirmed “there was no Cabinet mandate to consider changes to the policy.” Others were informed that treaty negotiations are not “rights” based.

Years later, it was grassroots movements that brought the issue back to national attention as part of Idle No More. In its wake, two senior oversight committees were established in 2013: one on treaties and one on comprehensive claims. According to an email circulated by former B.C. AFN regional chair Jody Wilson-Raybould, Prime Minister Stephen Harper acknowledged at the meeting that the progress on comprehensive claims was unacceptable.

Yet, Harper commissioned a special report to review the land claims policy independently. The report led to a new “results-based” approach to negotiations that maintained the same expedited and expanded extinguishment frameworks for Aboriginal title.

While First Nation leaders were pushing for fundamental reform, the government instead created off-ramps into sectoral, incremental reconciliation and revenue-sharing agreements. The new generation of policies over land and resources would avoid the discussion of title altogether, and Justin Trudeau would continue this tradition.

JT and the recognition tables

In 2018, Trudeau’s Valentine’s Day throne speech promised to develop a Recognition and Implementation of Indigenous Rights Framework. The framework promised to “replace policies like the Comprehensive Land Claims Policy and the Inherent Right to Self-Government Policy.” Trudeau promised, instead, a co-development approach to negotiations and mandates.

The legislation failed to pass. But Canada focused its energy on establishing Recognition of Indigenous Rights and Self-Determination discussion tables.

The mandates of over 70 tables negotiating since 2015, however, have never been made public. Whether and how Aboriginal title is recognized remains a mystery.

While “extinguishment” clauses no longer appear in the comprehensive claim policy’s wording, it still requires the exchange of title lands for private property. The new policy off-ramps set aside any acknowledgment of title as the basis for negotiations.

Negotiating groups have made the best out of an impossible situation. But the #LandBack movement has shown both the possibilities and the dangers of working outside federal land claims frameworks.

Many nations have asserted Indigenous law on the ground by issuing declarations and exercising their jurisdiction to govern their territories and resources. They put the onus of “land claims” back on Canada to prove.

But this strategy for title recognition has also proved dangerous. For the Wet'suwet'en hereditary leadership, who brought the Delgamuukw case to court, asserting their law in a coveted energy corridor to state and industry has provoked one of the most violent colonial conflicts in Canadian history.

This violence reflects many things, but chief among them: Canada’s refusal to align land claims policies with its own law.