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Indigenous Sovereignty: Delgamuukw v. British Columbia (1991) (Commonly known as the "McEachern Decision")

"It is the law that aboriginal rights exist at the 'pleasure of the Crown,' and they may be extinguished whenever the intention of the Crown to do so is clear and plain" (par. 28).

"In my view, it is part of the law of nations, which has become part of the common law, that discovery and occupation of the lands of this continent by European nations, or occupation and settlement, gave rise to a right of sovereignty. Such sovereignty in North America was established in part by Royal grant as with the Hudson's Bay Company in 1670; by conquest, as in Quebec in l759; by treaty with other sovereign nations, as with the United States settling the international border; by occupation, as in many parts of Canada, particularly the prairies and British Columbia; and partly by the exercise of sovereignty by the British Crown in British Columbia through the creation of Crown Colonies on Vancouver Island and the mainland. Aboriginal persons and commentators often mention the fact that the Indians of this province were never conquered by force of arms, nor have they entered into treaties with the Crown. Unfair as it may seem to Indians or others on philosophical grounds, these are not relevant considerations. The events of the last 200 years are far more significant than any military conquest or treaties would have been. The reality of Crown ownership of the soil of all the lands of the province is not open to question and actual dominion for such a long period is far more pervasive than the outcome of a battle or a war could ever be" (209-210).

"Upon the Crown through the Imperial Parliament establishing the Colony of British Columbia in 1858, it authorized the appointment of a Governor, made arrangements for a Legislative Council, imposed English law, and embarked upon the construction of a legal regime for the ownership and governance of the Colony. This, in my view, is what sovereignty is all about . . ." (623).

"[T]he aboriginal system, to the extent it constituted aboriginal jurisdiction of sovereignty, or ownership apart from occupation for residence and use, gave way to an new colonial form of government which the law recognizes to the exclusion of all other systems" (626).

"[A]boriginal customs, to the extent they could be described as laws before the creation of the colony became customs which depended upon the willingness of the community to live and abide by them, but they ceased to have any force, as laws, within the colony" (627).

"[A]t the time of Union of the colony with Canada in 1871, all legislative jurisdiction was divided between Canada and the province and there was no room for aboriginal jurisdiction or sovereignty which would be recognized by the law or the courts" (627).

"I fully understand the plaintiffs' wishful belief that their distinctive history entitles them to demand some form of constitutional independence from British Columbia. But neither this nor any Court has the jurisdiction to undo the establishment of the Colony, Confederation, or the constitutional arrangements which are now in place. Separate sovereignty or legislative authority, as a matter of law, is beyond the authority of any Court to award. I also understand the reasons why some aboriginal persons have spoken in strident and exaggerated terms about aboriginal ownership and sovereignty, and why they have asserted exemption from the laws of Canada and the province. They often refer to the fact they were never conquered by military force. With respect, that is not a relevant consideration at this late date if it ever was. Similarly, the absence of treaties does not change the fact that Canadian and British Columbian sovereignty is a legal reality recognized both by the law of nations and by this Court" (629).

Delgamuukw v. British Columbia, 1991 CanLII 2372 (BC SC)

"It was regrettable that the plaintiffs saw fit to advance such an extensive array of far-reaching claims, attempting to persuade the court to take bold new initiatives in a number of directions simultaneously, rather than to mount a limited case of a strategic nature, building upon the important precedents of the last decade. The claims of the plaintiffs were so comprehensive that the chances of their being accepted by a court were, in my opinion, very low from the start" (Brian Slattery qtd. 9).

Cassidy, Frank. "Rethinking British Columbia: The Challenge of Delgamuukw." Aboriginal Title in British Columbia: Delgamuukw v. The Queen, edited by Frank Cassidy, Oolichan Books / Institute for Research on Public Policy, 1992, pp. 5-17.

"The judge did genuflect in the direction of history by noting that 'it is not possible to discuss this case except in a historical context,' and he said of historians that 'I accept just about everything they put before me.' Yet a closer examination of the judgment reveals that McEachern had no understanding of either the historical method or recent developments in the writing of Native history. Ill-considered nonsense is thus given greater weight than carefully researched conclusions" (xxiii).

Fisher, Robin. Contact and Conflict: Indian-European Relations in British Columbia, 1774-1890. 2nd ed., UBC P, 1992.

"Law and legal institutions, although they do so in complex ways, faithfully reflect and serve the needs of the powerful in any given society at any given time. Law, especially constitutional law, has been described . . . as politics by other means. . . . '[L]aw' does not rule. People rule. Sometimes by force, most often, in a democratic society, by laws which legitimate that rule. People pass laws. People interpret laws. People enforce laws, and do so substantially out of self-interest. In my view, after what I hope is a reasonably careful reading of the reasons for judgment in the Delgamuukw case, one must conclude that currently there can be found no clearer example of that thesis" (248).

Penner, Roland. "Power, the Law, and Constitution-Making." Aboriginal Title in British Columbia: Delgamuukw v. The Queen, edited by Frank Cassidy, Oolichan Books / Institute for Research on Public Policy, 1992, pp. 247-252.

"[T]he major political and historical significance of the Delgamuukw judgment is indeed that it embodies the traditional white views. Untempered by euphemism or by deference to the certainty of politically correct criticism, the major elements of those views are stated with remarkable, even refreshing, clarity. . . . One looks in vain for developed attempts to stand above and beyond the immediate fray, to examine basic assumptions from an intellectual or philosophic perspective, or to take a comparative outlook" (81-82).

Tennant, Paul. "The Place of Delgamuukw in British Columbia History and Politics and Vice Versa." Aboriginal Title in British Columbia: Delgamuukw v. The Queen, edited by Frank Cassidy, Oolichan Books / Institute for Research on Public Policy, 1992, pp. 73-91.