Delgamuukw V. British Columbia - Provincial Government Position

Provincial Government Position

The Crown of British Columbia insisted that all First Nations land rights in British Columbia were extinguished by the colonial government before it became part of Canada in 1871. Moreover, Chief Justice Allan McEachern ruled that aboriginal rights in general existed at the "pleasure of the crown" and could thus be extinguished "whenever the intention of the Crown to do so is clear and plain." (In the Court of Appeal, the Province changed its position to argue that aboriginal land rights had not been extinguished.) Under his reasoning, the Aboriginal title and Aboriginal right of self-government claimed by the plaintiffs had been erased over a century previously, and as such were precluded from qualifying as "existing" rights under subsection 35(1) of the Constitution Act, 1982. His ruling was seen by many as seriously at odds with Supreme Court of Canada rulings dealing with constitutional Aboriginal and treaty rights, and was also criticized for its apparent bias in both tone and analytic approach. Justice McEachern found that the "broad concepts embodied in oral tradition, did not conform to juridical definitions of truth," stating: "I am unable to accept adaawk, kungax and oral traditions as reliable bases for detailed history but they could confirm findings based on other admissible evidence." Although these courtroom proceedings established the precedent of First Nations presenting their claims to land through the use of oral tradition, Justice McEachern ruled that oral tradition could not stand on its own as historical evidence. In order to bear an impact on the proceedings it must be supported by forms of evidence recognized by the court.