Sovereignty's Alchemy: An Analysis of Delgamuukw v. British Columbia

Abstract

In Delgamuukw v. British Columbia, the Supreme Court of Canada issued its long-awaited judgment on the status of Aboriginal title under section 35(1) of the Constitution Act, 1982. The decision was regarded as highly significant because it seemed to fundamentally alter the law of Aboriginal rights. This article suggests that while the case has somewhat positively changed the law to protect Aboriginal title, it has also simultaneously sustained a legal framework that undermines Aboriginal land rights. In particular, the decision's unreflective acceptance of Crown sovereignty places Aboriginal title in a subordinate position relative to other legal rights. This article examines how this result defeats the Court's own requirements for a just settlement with Aboriginal peoples. This review proceeds through exploring the Supreme Court's treatment of Aboriginal pleadings, evidence, content and proof of title, Aboriginal self-government, and the extinguishment of Aboriginal title in the Delgamuukw case. In investigating these issues, this article concludes by illustrating how a more rigorous application of the rule of law to the Crown in its dealings with Aboriginal peoples could generate greater equality and justice for Aboriginal peoples in their relations with the Canadian state.

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