Information about . . .

Aboriginal Rights and the Delgamuukw Decision

The province has developed a policy to ensure that aboriginal rights, as discussed by the British Columbia Court of Appeal in the 1993 Delgamuukw decision, are respected in decisions made by the province regarding Crown lands and resources.

Background

The Delgamuukw decision ruled that aboriginal rights had never been extinguished and therefore continue to exist today. Because aboriginal rights relate to those activities which are integral to the distinctive culture of an aboriginal society, they may vary throughout the province. Examples of those rights may include the right to fish, hunt, trap and use trees, plants, wildlife and water for sustenance and social, spiritual and ceremonial purposes. The Constitution Act, 1982, recognizes and protects existing aboriginal rights.

To fulfil its legal obligations as discussed in the Delgamuukw decision, the province, when making decisions about activities on Crown land, must make its best efforts to first determine if aboriginal rights exist in that area and then determine whether the proposed activity would infringe upon those rights. That is why the province developed a policy to guide provincial government agencies in carrying out their legal obligations.

Crown Land Activities and Aboriginal Rights Policy Framework

The policy is in effect at all times and generally applies to all provincial ministries and officers of the Crown. The policy does not apply to Crown authorizations relating to private land already being used in an urban area.

What it Means For You

All applications for Crown land activities that might infringe upon aboriginal rights are subject to this policy. That means if you are applying to the province to authorize some activity on Crown land, part of the application process will likely involve the provincial government's need to satisfy the legal obligations established by the Delgamuukw decision on aboriginal rights. The ministry responsible for the application will make sure this requirement is met.

Policy Principles

To ensure the province meets its legal obligations in accordance with the Delgamuukw decision, the following process has been developed for each ministry to use, with clear timelines for responses:

Step 1: Establish the Right

The Crown should establish whether an aboriginal right exists in the area covered by the proposed Crown grant, tenure, authorization or designation. This is ideally done through consultation with the aboriginal peoples affected.

Step 2: Determine Whether Crown Action Would Infringe on the Right

If it is established that an aboriginal right exists, the Crown should determine whether its actions would infringe upon that right. An infringement will occur if an activity authorized by the Crown significantly impairs an aboriginal right. An infringement would not occur where Crown action has little impact and where the use provided for by the tenure can easily co-exist with any existing aboriginal rights and where undue hardship does not result.

Step 3: Resolve Matters of Conflicting Interest by Negotiation

If the proposed Crown action and the aboriginal right cannot co-exist, and if infringement would result from the proposed activity, negotiations should be carried out to resolve the conflicting interest. First Nations do not have a veto.

Step 4: Attempt to Justify Infringement if it Cannot be Avoided

Although the provincial government will attempt to avoid infringement either by ensuring the government action and the aboriginal right can co-exist, or by negotiating a settlement of any conflict, the Crown may wish, in some circumstances, to attempt to justify the infringement. An infringement requires careful legal analysis and may be justified in some cases, such as where it is necessary to conserve and soundly manage a natural resource or to ensure public safety.

For further information on this or other topics, contact:

Ministry of Aboriginal Affairs
Communications Branch
PO Box 9100 Stn Prov Govt
Victoria BC V8W 9B1

Or visit 1st Floor, 908 Pandora Avenue, Victoria, B.C.
Telephone: (250) 356-0330 or toll-free at 1-800-880-1022
Fax: (250) 387-1785

October 1995