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A summary of the Court’s decision

In summary, here is what the Court has done:

• Drastically undermined the Crown ownership of 94 percent of the land mass of British Columbia
• put almost unsurmountable hurdles in the way of the provincial government over present and future land resource decisions
• supplanted the common law with a new system of law in which equal credence is to be given in aboriginal cases to the "aboriginal perspective"
• replaced the long-established rules of evidence in civil cases with two sets of rules—one for aboriginal cases only
• found that aboriginal title, as defined by the Court, may be supplanted by other forms of land tenure only if rigid tests are met by the government and, only then, if compensation is paid
• failed to confirm that in constitutional terms, the right to make laws in this country is fully vested in either Parliament or provincial legislatures
• turned over to the federal government the right to exclusively legislate land management for "Indians" on lands found to be covered by aboriginal title.

In short, the court has seriously weakened the meaning and scope of the assertion of British sovereignty in 1846 over the territory of what is now British Columbia. Sovereignty was supposed to do two things—establish English law and its institutions in the territory and place ownership of all the land in the territory in the hands of the Crown in right of the colony, and subsequently the province. The Court’s decision has seriously weakened both objectives. Solutions must be found.

Sovereignty would not have been threatened if the Court had found that aboriginal title meant what it has traditionally meant until now, i.e., that it is a user right. But the Court has gone much further, and found aboriginal title to mean an exclusive right, which can almost amount to full ownership.

Terry Morley, a respected political scientist at the University of Victoria, and a man not noted for hyperbole, says: "In Delgamuukw, this distant and disdainful Court places the economic prosperity of British Columbia in grave peril. Today a court in far away Ottawa, with modes of reasoning foreign to BC’s sensibilities, has revived our colonial state and made itself and its subordinate judges our effective rulers."⁹

So the chickens have come home to roost for the provincial government that so enthusiastically and foolishly conceded the concept of aboriginal title in the 1992 Throne Speech without knowing what it meant. On December 11, 1997, the Supreme Court of Canada told both them and us what it means.

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Last Modified: August 23, 2000.