Delgamuukw V. British Columbia

Delgamuukw v. British Columbia 3 S.C.R. 1010, also known as Delgamuukw vs. the Queen is a decision of the Supreme Court of Canada where the Court expressly and explicitly declined to make any definitive statement on the nature of aboriginal title in Canada. The Court held at paragraphs 74, 75 and 77 that, "I reject the submission with respect to the substitution of aboriginal title and self-government for the original claims of ownership and jurisdiction … The content of common law aboriginal title, for example, has not been authoritatively determined by this Court … This defect in the pleadings prevents this Court from considering the merits of this appeal.”

The relevance of the case for aboriginal title derives from what the Chief Justice Lamer ruled in a dialogue from the Bench with counsel Bruce Clark appearing on a preliminary objection to the Court's territorial jurisdiction based upon the Indian Tribe's unsurrendered territorial sovereignty. The Court Transcript finds the Chief Justice saying, “If you had decided to initiate or if you decide tomorrow morning to initiate in the Supreme Court of British Columbia an action for declaratory relief saying that the British Columbia courts have no jurisdiction, that is a different matter and you could be arguing to the judge that, well, this is an issue that has never been tried.… There is no doubt that it is a constitutional issue. … Is that all you have to say on the constitutional question?”

For these reasons the precedent value of the Delagmuukw is that the constitutional question of the paramountcy over a Crown Government’s and Court’s jurisdiction of an Indian Tribe’s territorial sovereignty pending proof of a surrender, by treaty, is a legitimate and outstanding constitutional question that this Court has never decided, because it has never been tried. Aside from that, the Court expressly and explicitly refused to decide anything of precedent value regarding the Indian constitutional interest.