Delgamuukw: The Supreme Court of Canada Decision on Aboriginal Title

David Mardiros is a lawyer and anthropological consultant in Terrace,
British Columbia.

The Supreme Court of Canada’s 1997 decision in Delgamuukw v. The Queen
is likely to prove to be one of the Court’s most important in relation
to Native land claims for some time to come. Not only does this book
reproduce the judgment in its entirety but it includes some useful
commentary by Stan Persky about the implications that some features of
the decision may have on the future actions by aboriginal peoples, and
governments, across Canada. Persky also provides a short historical and
political context for the decision and describes some of the reaction to
the original decision in the B.C. Supreme Court—a decision which was
decidedly (if only temporarily) against the Native claimants—and its
aftermath.

While Persky characterizes the Supreme Court’s decision as
“eminently readable,” he editorializes about the structure of legal
reasoning, usefully demystifying some features of the decision that may
confuse readers who are not familiar with legal language. In this way
his commentary (comprising the first 24 pages of the book) makes the
main section of the work—the Supreme Court judgment itself—much more
accessible to a general audience.

Perhaps the most important aspect of the book is the counterpoint it
provides to Our Home and Native Land, an inflammatory book about
aboriginal rights written by Mel Smith, a former deputy minister in
British Columbia’s previous Social Credit government. By focusing on
what was actually said by the various members of the Supreme Court and
providing a commentary that allows the individual reader to understand
the incremental nature of judge-made law, Persky brings a balance to the
analysis of Native rights and Native law that will appeal to readers.
This book brings a measure of reason and calm to a topic that continues
to stir passions and prejudices throughout British Columbia and the rest
of Canada.