delgamuukw v british columbia scc

(TO BE SENT WITH THE APPLICATIONS FOR LEAVE TO APPEAL - JOINT WITH 23800-801-802-803-804), Affidavit, to file the response to Dec. 31/93; Mari A. Worfolk, with service, Motion to extend time, to file the response to Dec. 31/93, with service, General proceeding, TO BE REFERED WITH 23800-23801-23802-23803-23804, General proceeding, 5 copies (Western Weekly Reports [1991] W.W.R. c) the appellants' factum shall be filed on or before Oct 30/96. However, the Court stated that the execution of the Crown’s fiduciary duty with respect to aboriginal title must recognize its "inescapable economic component" and requires that the Crown accommodate the participation of aboriginal peoples in the development of resources in British Columbia. Such infringements may be justified pursuant to the test set out in R. v. Gladstone: (i) the infringement of the aboriginal right must be in furtherance of a compelling and substantial legislative objective; and. It is important to note that the Court recognized the possibility of shared exclusivity between two First Nations, resulting in joint title: I would suggest that the requirement of exclusive occupancy and the possibility of joint title could be reconciled by recognizing that joint title could arise from shared exclusivity (para. Court of Appeal re-affirmed the critical significance of Delgamuukw in the application of the duty to consult. 28. 4. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title….the minimum acceptable standard is consultation, [which] must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. 15/97. La Forest J. As such, oral history need not provide definitive and precise evidence of pre-sovereignty First Nation occupation on the territory in question, but may demonstrate that current occupation has its origins prior to sovereignty. to Marvin R.V. When infringement of an aboriginal right is necessary, the Crown must adhere to its fiduciary duty towards First Nations. "Aboriginal Title: The Supreme Court of Canada Decision in Delgamuukw v. BC", http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/1569/1/document.do, Aboriginal Affairs and Northern Development Canada, The Canadian Crown and Aboriginal peoples, Canadian Indian residential school system, Section Thirty-five of the Constitution Act, 1982, First Nations treaties in British Columbia, Calder v. British Columbia (Attorney General), Chippewas of Sarnia Band v. Canada (Attorney General), Corbiere v. Canada (Minister of Indian and Northern Affairs), Native Women's Association of Canada v. Canada, Definitions and identity of indigenous peoples, United Nations Permanent Forum on Indigenous Issues, Index of Aboriginal Canadian-related articles, https://infogalactic.com/w/index.php?title=Delgamuukw_v_British_Columbia&oldid=683061333, First Nations history in British Columbia, Creative Commons Attribution-ShareAlike License, About Infogalactic: the planetary knowledge core. ), Hearing of motion for additional time to present oral argument, 1997-03-20, Ma, Submission of motion for additional time to present oral argument, 1997-03-20, Ma, $50.00 filing fee for notice of motion, receipt no. 187-208), joined by L'Heureux-Dube J. Fisher, Robin (1992) "Judging History: Reflections on the Reasons for Judgment in Delgamuukw vs. Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous. 26. (ii) the infringement must be consistent with the special fiduciary relationship between the Crown and First Nations. has been appointed to act as the counsel for the Respondent, Her Majesty the Queen, with service, Correspondence (sent by the Court) to, from Swinton & Co. to A. Roland, letter dated Sept. 18/95 (fax copy) re: notice of change of Counsel filed on behalf of Xsgogimlahxa be struck out, sent to CJ LaF So G I, Oct 5/95, General proceeding, transcripts received for the motions of Bruce Clark of Sept. 12/95 and distributed to the justices (38 pages, Decision on the motion to state a constitutional question, CJ LaF So G Ia, Hearing of the motion to state a constitutional question, 1995-09-12, CJ LaF So G Ia, Submission of motion to state a constitutional question, 1995-09-12, CJ LaF So G Ia, Affidavit, of Gisday Wa (Alfred Joseph) sworn Sept. 11/95, with service, Affidavit, sworn Sept. 11/95 re: affidavit of Gisday Wa (Alfred Joseph), with service, Book of authorities, 6 copies, with service, Correspondence (sent by the Court) to, (by fax) of Bruce Clark to the Registrar dated september 8/95, $50.00 filing fee for notice of motion, to strike out receipt #30615, Affidavit, of Glen W. Bell re: motion to abridge the time to file the motion - joint with motion to strike out, with service, Notice of miscellaneous motion, (TO ABRIDGE THE TIME TO FILE THIS MOTION) - joint with motion to strike out, with service, Affidavit, of Glen W. Bell re: motion to strike out the motion filed on June 28/95 on behalf of Xsgogimlahxa - 5 more copies requested, with service, Motion to strike out, the motion dated June 28, 1995 filed on behalf of Xsgogimlahxa - 5 more copies requested, with service, Affidavit, SUPPLEMENTAL OF MARGARET CLARK, with service, Xsgogimlaxha, a.k.a. 153, quoting from Van der Peet): The occupation and use of lands may have been disrupted for a time, perhaps as a result of the unwillingness of European colonizers to recognize aboriginal title. Moreover, the Court placed a positive duty upon the Crown with respect to negotiating settlements: the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith (para. Vol. 's response to the intervention, Decision on miscellaneous motion, CJ, - 1. Prior to the SCC’s Haida Nation decision, in Taku River Tlinglit v British Columbia, 2001 BCCA 647, the B.C. AND FOR APPELLANTS A02,A07,A10 and A38 to A45 and A51, General proceeding, 4 copies (bookform) of ARGUMENT IN SUPPORT of application for intervener status (for I14 to I24), with service, Correspondence (sent by the Court) to, (by fax) from P. Geoffrey Plant; re: judgments has a bearing on the issues which we raise in the intervention, Order on motion to dispense with printing, General proceeding, 1 copy by fax of "Summation", God in the Person of James Russell Sterrit, Affidavit, of God, in James Russell Sterritt in support of the intervention (1 copy by fax), Affidavit, SUPPLEMENTARY AFFIDAVIT OF KENNETH SUMANIK OF THE APPLICANT, B.C. The theory underlying the principle of priority is that the fiduciary relationship between the Crown and aboriginal peoples demands that aboriginal interests be placed first. 16. Southin J.A. The Province respondent - 1 hour 45 min. 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. Section 109 is the section that says the Crown's CONSTITUTIONAL "Interest" is subject to the Aboriginal CONSTITUTIONAL "Interest" so long as the Aboriginal "Interest" has not been sold to the Crown by a valid treaty. With respect to the exclusivity aspect of aboriginal title, the notion of priority entails: that governments accommodate the participation of aboriginal peoples in the development of the resources of British Columbia, that the conferral of fee simples for agriculture, and of leases and licences for forestry and mining reflect the prior occupation of aboriginal title lands, that economic barriers to aboriginal uses of their lands (e.g. 3. The same can be said of extinguishment – although on extinguishment of aboriginal title, the province would take complete title to the land, the jurisdiction to extinguish lies with the federal government (emphasis added; para. The Court further added that the economic aspect of aboriginal title requires compensation as justification of an infringement: In keeping with the duty of honor and good faith of the Crown, fair compensation will ordinarily be required when aboriginal title is infringed. 8. 33796, Affidavit, of Marvin Storrow, with service, Motion for additional time to present oral argument, (5 days for the hearing of the appeal) ($50.00 requested), with service, Completed on: 1997-03-18, Correspondence (sent by the Court) to, from Stuart Rush to A. Roland, letter dated March 11, 1997 (fax copy) re: 5 days would be necessary for the oral argument, Appeal perfected for hearing, Session beginning on 1997-04-21, Order on miscellaneous motion, (revised order of Major J. of Nov.28/96), Correspondence (sent by the Court) to, (by fax) from Joseph J. Arvay; re: Order of Major, J. dated Nov. 28/96, General proceeding, 12 copies of reference books of the GITKSAN appellants' factum R-1 to R-7 and T-1 and a Map Book M-1, General proceeding, 12 copies of reference books of the WET'SUWET'EN appellants' factum R-1 to R-5 and T-1, Book of authorities, 12 copies of vols. British Columbia, [1997] 153 D.L.R. Earl Muldoe, suing on his own behalf and on behalf of all the members of the House, et al. Low (1 original) (plus 2 copies included in the binders), with service, Motion for leave to intervene, 2 copies (binder) FILED BEFORE THE APPLICATION WAS GRANTED ON MARCH 10/94, with service, Correspondence received from, (by fax) from Stuart Rush, Q.C. RE: issue by Alcan on the constitutional validity of the Industrial Development Act (fax copy), Notice of deposit of judgment issued to all parties, A.G. of Canada (Ottawa, ON), Notice of deposit of judgment issued to all parties, Gowling, Strathy & Henderson (Ottawa, ON), Notice of deposit of judgment issued to all parties, Burke-Robertson (Ottawa, ON), Judgment of the Court on the application for leave to appeal, CJ Co Ia, The applications for leave to appeal and to cross-appeal are granted. By way of illustration, if hunting practices were used to demonstrate occupation of, or attachment to territory claimed as aboriginal title lands, the First Nation cannot strip mine the territory. [6] [7], It has been claimed that the case was improperly framed by the lawyers who filed the case and it decided nothing nor could it have decided anything. CATTLEMEN'S ASS. 13. of the Court of Appeal dissented in the result. The scope of the fiduciary duty is determined according to the nature of the aboriginal right at issue and according to the legal and factual context of the appeal.

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