[4]: 99 The Gitxsan and Wet’suwet’en peoples claimed Aboriginal title and jurisdiction over 58,000 square kilometers in northwest British Columbia.
[4]: 91 [7] While much of the decision is technically obiter dicta (since a new trial was ordered due to errors in how the evidence and pleadings were treated), the principles from Delgamuukw were restated and summarized in Tsilhqot'in Nation v British Columbia, 2014 SCC 44.
The Gitxsan and Wet’suwet’en peoples had attempted to negotiate jurisdiction, recognition of ownership, and self-government since Europeans first began settling on their traditional lands in the 1800s.
[10][11] By 1984, British Columbia had begun to allow clear-cut logging in the Gitxsan and Wet’suwet’en territory without permission from the hereditary chiefs.
[12] On October 24, 1984, thirty-five Gitxsan and thirteen Wet’suwet’en hereditary chiefs filed their statement of claim with the British Columbia Supreme Court.
"[13] In Calder v British Columbia (AG), the Supreme Court recognized that Aboriginal title to land was based in "historic occupation and possession" of their traditional territories and "does not depend on treaty, executive order or legislative enactment.
[15] In Canadian Pacific Ltd v Paul, the Court elaborated, "it is more than the right to enjoyment and occupancy, although, … it is difficult to describe what more in traditional property law terminology.
[20][21] In 1984, Gitxsan and Wet’suwet’en hereditary chiefs claimed, on behalf of their Houses, unextinguished Aboriginal title and jurisdiction over territory in northwest British Columbia totalling 58,000 square kilometres, and compensation for land already alienated.
[13][22][23] Delgamuukw (English name Earl Muldoe) was a claimant for the Gitxsan, while Gisday’wa (Alfred Joseph) was one of those representing the Wet’suwet’en.
[13][23] Despite finding that Aboriginal rights of the Gitxsan and Wet’suwet’en had been extinguished, Chief Justice McEachern found that the Crown had made promises beginning in 1859 and 1860 that gave rise to a fiduciary duty: "to permit aboriginal people, but subject to the general law of the province, to use any unoccupied or vacant Crown land for subsistence purposes until such time as the land is dedicated to another purpose.
[13][31] On June 25, 1993, five members of the British Columbia Court of Appeal unanimously rejected Justice McEachern's ruling that all of the plaintiffs' Aboriginal rights had been extinguished.
[13][31][5] In March 1994, the Gitxsan and Wet’suwet’en and the Province of British Columbia were granted leave to appeal to the Supreme Court of Canada.
[6][8][4]: 100, 104 The majority also found that the factual findings of the trial court could not stand because Justice McEachern's approach did not meet the principles laid out in R v Van der Peet.
[5]: para 87 [33]The trial judge, after refusing to admit, or giving no independent weight to these oral histories, reached the conclusion that the appellants had not demonstrated the requisite degree of occupation for "ownership".
[5]: para 117 The majority affirms that this is a sui generis right arising from the prior occupation of the land by Indigenous people;[33] it is not fee simple ownership.
The court held that the province does not have the power to extinguish Aboriginal rights, neither directly (because of Section 91(24) of the Constitution Act, 1867) nor indirectly through laws of general applicability (because they could not indicate clear and plain intent).
Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Van der Peet to be a basic purpose of s. 35(1) -- “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”.
[35] The response from the various First Nations in British Columbia varied: some interested in the treaty negotiation process, some in the economic integration through interim measures, and some considering additional litigation.