1. (1997) 153 D.L.R. (4th) 193 (S.C.C.)Google Scholar, rev'g in part (1993) 104 D.L.R. (4th) 470 (B.C.C.A.)Google Scholar, which aff' d (1991) 79 D.L.R. (4th) 185 (B.CS.C, McEachern CJSC) (hereafter “Trial”).Google Scholar For related rulings concerning admissibility of evidence see Delgamuukw v. The Queen in right of B.C. (1987) 40 D.L.R. (4th) 685 (B.C.S.C)Google Scholar; Delgamuukw v. B.C. [1989] 6 W.W.R. 308 (B.C.S.C)Google Scholar; and Delgamuukw v. B.C. [1989] 6 W.W.R. 319 (B.C.S.C.).Google Scholar

2. In the opening para, of his judgment, Lamer CIC identifies the cases as commencing with R. v. Sparrow [1990] 1 S.C.R. 1075, 70 D.L.R. (4th) 385 (hereafter cited to D.L.R.); proceeding through the Van der Peet trilogy (R. v. Van der Peet [1996] 2 S.C.R. 507, 137 D.L.R. (4th) 289 (hereafter cited to D.L.R.), and R. v. N.T.C. Smokehouse Ltd [1996] 2 S.C.R. 672, 137 D.L.R. (4th) 528 (hereafter cited to D.L.R.)Google Scholar, and R. v. Gladstone [1996] 2 S.C.R. 723, 137 D.L.R. (4th) 648 (hereafter cited to D.L.R.))Google Scholar; and ending in R. v. Pamajewon [1996] 2 S.CR. 821, 138 D.L.R. (4th) 204 (sub nom. R. v. Gardner, R. v. Jones) (hereafter cited to D.L.R.), R. v. Adams [1996] 3 S.C.R. 101, 138 D.L.R. (4th) 657 (hereafter cited to D.L.R.), and R. v. Coté [1996] 3 S.CR. 139, 138 D.L.R. (4th) 385.Google Scholar

3. Being Sched. B to the Canada Act 1982 (UK), 1982, c.11.

4. Lamer CJC in Van der Peet, supra n.2, at p.303 (emphasis in original). He went on to stress that it is “this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status”.Google Scholar

5. Delgamuukw, supra n.1. at p.273.Google Scholar

6. The expression is that of Delgam Uukw, Hereditary Chief of the Gitksan. See Gisday, Wa and Delgam, Uukw, The Spirit of the Land: Opening Statement of the Gitksan and Wet'suwet'en Hereditary Chiefs in the Supreme Court of British Columbia May 11, 1987 (Gabriola, B.C., 1989), p.7.Google Scholar

7. See generally Sparrow, supra n.2, at pp.407–409.Google ScholarSee also Guerin v. Canada (1984) 131 D.L.R. (4th) 321 (S.C.C.).Google Scholar

8. In Delgamuukw, supra n.1, at pp.254–255Google Scholar, Lamer CJC distinguishes between claims to aboriginal rights falling short of title and aboriginal title itself (see infra n.16 and accompanying text), and makes it clear that the appropriate pre-colonial period is different in the two cases. It is the period prior to first contact between the Europeans and aboriginals in the case of rights falling short of title, and the period prior to the assertion of sovereignty in the case of aboriginal title.

9. See e.g. Gladstone, supra n.2, at p.662 (per Lamer CJC): “In Van der Peet this was described as the requirement of ‘;continuity’—the requirement that a practice, tradition or custom which is integral to the aboriginal community now be shown to have continuity with the practices, traditions or customs which existed prior to contact” (emphasis added).Google Scholar

10. Delgamuukw, supra n.1. at pp.267–272.Google Scholar

11. Sparrow, supra n.2, at p.401Google Scholar; Gladstone, supra n.2, at p.663.Google Scholar

12. Most often a member or members of the aboriginal group itself, although in N.T.C. Smokehouse, supra n.2, the existence of an aboriginal right was claimed by a non-aboriginal corporation charged with dealing in illegally caught fish.

13. Trial, supra n.1, at p.264.Google Scholar

14. Idem, p.261.

15. Van der Peet, supra n.2 at p.310 (per Lamer CJC).Google Scholar It must be “a central, significant or defining feature of the distinctive culture” of the aboriginal society in question: Adams, supra n.2, at p.671 (per Lamer CJC)Google Scholar; see also Gladstone, supra n.2, at p.660.Google Scholar

16. Delgamuukw, supra n.1, at pp.251–252.Google Scholar

17. See e.g. Adams, supra n.2, at p.667.Google Scholar

18. Delgamuukw, supra n. 1, at p.253 (per Lamer CJC).Google Scholar

19. Idem, pp.256–257.

20. However, the manner in which the right is exercised is not similarly frozen. See Sparrow and Van der Peet, both supra n.2.

21. See particularly Gladstone, supra n.2 (right to fish commercially); and N.T.C. Smokehouse and Van der Peet, both supra n.2 (right to fish for sustenance and for social and ceremonial purposes).

22. Delgamuukw, supra n.1, at p.243 (per Lamer CJC).Google Scholar

23. Idem, p.246.

24. Idem, p.247 (emphasis added). He continued with the following concrete examples: “For example, if occupation is established with reference to the use of the land as a hunting ground, then the group that successfully claims aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e.g., by strip-mining it). Similarly, if a group claims a special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship (e.g., by developing it in such a way that the bond is destroyed, perhaps by turning it into a parking lot).”

25. World Commission on Environment and Development, Our Common Future (1987).Google Scholar

26. Rio Declaration on Environment and Development, Doc. A/Conf.151/5/Rev.1, UN Conference on Environment and Development, 3–14 June 1992. See particularly Principle 3: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”

27. Delgamuukw, supra n.1, at p.247.Google Scholar

28. That is, for food, ceremonial and social purposes. See e.g. Sparrow, Van der Peet and N.T.C. Smokehouse, all supra n.2.

29. Hardin, , “The Tragedy of the Commons” (1968) 162 Science 1243.Google Scholar The “Tragedy of the Commons” can occur when a group of people has unrestrained access to a resource, in which case it is in the short-term interest of each member of the group to appropriate individually as much of the resource as possible, although this will inevitably lead to the exhaustion of the resource and thus be contrary to the long-term interest of the group as a whole

30. E.g.Gladstone, supra n.2.

31. As Lamer CJC points out in Gladstone, idem, p.674, Lambert JA's qualification (in dissent in the B.C. Court of Appeal in both Van der Peet and N.T.C. Smokehouse, both supra n.2) of the right to fish commercially as being for the purpose of obtaining a “moderate livelihood” would constitute an internal limit.

32. Sparrow, supra n.2, at pp.411, 412 (per Dickson, CJC and La Forest, J, speaking for the Court).Google Scholar

33. See supra n.15 and accompanying text See also Sparrow, supra n.2, at p.410Google Scholar: “Given the generality of the text of the constitutional provision, and especially in light of the complexities of aboriginal history, society and rights, the contours of a justificatory standard must be defined in the specific factual context of each case.”

34. Sparrow, idem, p.412; Delgamuukw. supra n.1, at p.260.Google Scholar

35. See supra n.4 and accompanying text.

36. Gladstone, supra n.2, at pp.681–682 (per Lamer, CJC) (emphasis in original)Google Scholar

37. Idem, p.682; Lamer CJC continues (at 682–683): “In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment” (double emphasis in original).

38. Adams, supra n.2, at p.679.Google Scholar On the other hand, justification of measures as being “in the public interest” is “so vague as to provide no meaningful guidance and so broad as to be unworkable” as a test for justification (Sparrow, supra n.2, at p.412).Google Scholar

39. Delgamuukw, supra n.1, at pp.263–264.Google Scholar

40. See supra n.7 and accompanying text.

41. Sparrow, supra n.2, at p.414.Google Scholar

42. See Gladstone, supra n.2, at p.675Google Scholar: “Because the right to sell… [fish] to the commercial market can never be said to be satisfied while the resource is still available and the market is not sated, to give priority to that right in the manner suggested … would be to give the rightholder exclusivity over any person not having an aboriginal right to participate in the… fishery” (per Lamer CJC).

43. Idem, p.676. This could involve “[q]uestions … relating to consultation and compensation, as well as questions such as whether the government has accommodated the exercise of the aboriginal right to participate in the fishery (through reduced licence fees, for example), whether the government's objectives in enacting a particular regulatory scheme reflect the need to take into account the priority of aboriginal right[s] holders, the extent of the participation in the fishery of aboriginal rights holders relative to their percentage of the population, how the government has accommodated different aboriginal rights in a particular fishery (food versus commercial rights, for example), how important the fishery is to the economic and material well-being of the band in question, and the criteria taken into account by the government in, for example, allocating commercial licences amongst different users” (idem, pp.677–678).

44. Delgamuukw, supra n.1, at p.265.Google Scholar

45. Ibid.

46. Idem, pp.265–266.

47. Idem, p.266 (emphasis added).

48. Pamajewon, supra n.2, at p.213.Google Scholar He underlined (idem, p.212) that he was “[a]ssuming without deciding” that s.35(1) includes self-government claims.

49. Aboriginal Self-Govemmenf. Federal policy guide: The Government of Canada's approach to implementation of the inherent right and the negotiation of aboriginal self-government (Ottawa: Minister of Indian Affairs and Northern Development, 1995) (http://www.inac.gc.ca/pubs/selfgov/policy/html), p.1.

50. Idem, p.3.

51. Idem, pp.3–4. The federal government suggests (idem, pp.6–7) that the exercise of self-government may affect its fiduciary relationship with the aboriginal peoples. “As Aboriginal governments and institutions exercise jurisdiction or authority and assume control over decision-making that affects their communities, they will also assume greater responsibility for the exercise of those powers. As a result, Crown responsibilities will lessen. In this sense, the historic relationship between Aboriginal peoples and the Crown will not disappear, but rather, will evolve as a natural consequence both of Aboriginal peoples' changing role in shaping their own lives and communities, and of the Crown's diminished control and authority in relation to them.”

52. Sparrow, supra n.2, at p.417.Google Scholar

53. See e.g. the practice of chipping maple trees to bare their wood to determine whether they are the more valuable “bird's eye” maple: see R. v. Paul (1996) 145 D.L.R. (4th) 472 (N.B. Prov. CL)Google Scholar, aff' d (1997) 153 D.L.R. (4th) 131 (N.B.Q.B.)Google Scholar, rev'd (1998) 158 D.L.R. (4th) 231 (N.B.C.A.).Google Scholar

54. Delgamuukw, supra n.1, at p.273.Google Scholar

55. See http://www.aaf.gov.bc.ca/aaf/treaty/nisgaa/nisga-agreement.html.

56. The Nisga'a people first sent a delegation to the provincial capital requesting a settlement of their land claims in 1887; they petitioned the Imperial Privy Council in 1913; and were successful in the first of the modem aboriginal rights cases (Colder v. Attorney-General of British Columbia [1973] S.C.R. 313, 34 D.L.R. (3d) 145) before the Supreme Court of Canada.Google Scholar

57. The Preamble to the Agreement reads in part as follows: “Whereas Canadian Courts have stated that the reconciliation between the prior presence of aboriginal peoples and the assertion of sovereignty by the Crown is best achieved through negotiation and agreement, rather than through litigation or conflict”