Talk:Delgamuukw v British Columbia

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Needs equal treatment for First Nation position

The positions and arguments of the provincial and federal governments are given, but not that of the Gitksan plaintiffs.Skookum1 10:27, 28 December 2006 (UTC)[reply]

BC's position/ colonial-era aboliition of rights untrue

I noticed this:

The Province insisted that all First Nations land rights in British Columbia were extinguished by the colonial government before it became part of Canada in 1871.

I'm pretty sure that BC's position was, on the other hand, that the plebicite to join Canada was, in fact, the device by which they claim aboriginal title to have been abolished; the colony had recognized it, or rather the colony had no right to abolish it without any signed treaties as per the Royal Proc; so the dodge was, as advanced by Trutch, that hte plebiscite had wiped out that concern, adn t hat any remaining rights were the fed's responsibility; during hte 19th Century 85% of BC was set aside as Government Reserve as collateral against an eventual settlement; in 1976 the new government of Bill Bennett transferred the Govt Reserve to control by the Ministry of Forests in the form of Timber Supply Areas and leases and such. In any case the arguments were much more complicated than as presented here, but I'm concerned that teh claim that aboriginal rights were abolished by the colonial government is just not true; it had not power to do so....(and London would have overruled any attempt to do so). And I repeat my concern above that the position of the Gitxsan-Wet'su-wet'en is not adequately represented in this article; it's one short step of a POV tag, in fact....Skookum1 (talk) 19:56, 6 November 2008 (UTC)[reply]

NPOV: Supreme Court ruling

This section of the article seems to include a great deal of opinion rather than actual factual information, such as:

Everything said by the Supreme Court of Canada on the topic of "common law" aboriginal title after that, therefore, is by operation of law alone completely and permanently irrelevant.

and

The Delgamuukw case is "leading" case only in the sense that a red herring leads the hounds away from the chase. By raising the heresy of the common law overruling settled constitutional law the case is a complete waste of time and a diversionary distraction.

Whatever one thinks personally of the decision in this case, statements such as these cannot, in my view, be seen as neutral. Warmfuzzygrrl | Talk 23:42, 24 May 2012 (UTC)[reply]

I've removed what seemed to be the most obvious cases of unsourced opinion, and also provisionally removed the NPOV tag. I'm not a lawyer so I can't understand or judge the quality of what's left of the recent additions. Could someone who does understand legal text have a look and either delete (if unsupported opinion) or rewrite (if it's just a matter of converting from legalese to encyclopaedic language)?

PS: No signatures on main space (article) pages please, just here on talk pages. PPS - new threads on talk pages go at the bottom (moving this now.) Kim Dent-Brown ^(Talk) 16:57, 30 May 2012 (UTC)[reply]

Misunderstands the significance of the decision

I don't believe this article accurately reflects the significance and meaning of the Delgamuukw decision in terms of Aboriginal title. Delgamuukw is the leading case recognizing the nature of Aboriginal title, in addition to its treatment of oral histories as admissible evidence in a land claim trial. It is simply untrue to say, as the Wikipedia article does, that this Supreme Court of Canada decision "expressly and explicitly declined to make any definitive statement on the nature of aboriginal title in Canada." As this Library of Parliament report indicates, the decision was "a groundbreaking ruling containing its first definitive statement on the content of Aboriginal title in Canada. The decision in Delgamuukw v. British Columbia also describes the scope of protection afforded Aboriginal title under subsection 35(1) of the Constitution Act, 1982; defines how Aboriginal title may be proved; and outlines the justification test for infringements of Aboriginal title."^[1]

Lamer CJ (as he then was) was unable to decide the merits of the claim for a finding of title and of a right to self-government, but did in fact describe the content of aboriginal title in fairly plain terms in order to provide clarity and guidance to the courts below. Lamer CJ described Aboriginal title as a sui generis [unique in its characteristics] right that nevertheless entitled the holders of Aboriginal title to exclusive use and occupation of the land.^[2]

Specifically, at para. 117, Lamaer CJ wrote: "Although the courts have been less than forthcoming, I have arrived at the conclusion that the content of aboriginal title can be summarized by two propositions: first, that aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group’s attachment to that land. For the sake of clarity, I will discuss each of these propositions separately [in the paragraphs that follow]." ^[2]

This article needs serious work because it frankly misstates a major decision within the Canadian jurisprudence regarding Aboriginal title.

24.114.80.48 (talk) 18:50, 16 August 2013 (UTC)R.B.F.[reply]

References

^ [1]
^ ^a ^b [2], at paras. 109 to 117 and paras. 133-139 Cite error: The named reference "Delgamuukw decision per Lamer CJ" was defined multiple times with different content (see the help page).

Assessment comment

The comment(s) below were originally left at Talk:Delgamuukw v British Columbia/Comments, and are posted here for posterity. Following several discussions in past years, these subpages are now deprecated. The comments may be irrelevant or outdated; if so, please feel free to remove this section.

Needs equal treatment for First Nation position: The positions and arguments of the provincial and federal governments are given, but not that of the Gitksan plaintiffs.Skookum1 10:33, 28 December 2006 (UTC)[reply]

Last edited at 09:02, 6 January 2015 (UTC). Substituted at 13:09, 29 April 2016 (UTC)

Re-writing

I've started a re-write of this article so that it doesn't rely so heavily on the organization and quotes from a single source (http://publications.gc.ca/Collection-R/LoPBdP/BP/bp459-e.htm). Sancho 05:15, 19 February 2019 (UTC)[reply]

[Library_of_Parliament_Report-1] [1]

[Delgamuukw_decision_per_Lamer_CJ-2] [2], at paras. 109 to 117 and paras. 133-139 Cite error: The named reference "Delgamuukw decision per Lamer CJ" was defined multiple times with different content (see the help page).

[1]

[2]