25 years after the Delgamuukw case, the fight for land is more contentious than ever

Twenty-five years after the Delgamuukwverdictwas handed down, First Nations' leadersbehind the historic case arestill ruminating about how the land they fought for is still largely in the hands of the Crown.

"I thought thefight would have been over, but 25 years later, here we are still fighting," saidDimdiigibuu, also known as Ardythe Wilson.

Dimdiigibuu was one of fivespeakers representing the Gitxsan and the Wet'suwet'en during theDelgamuukwvs. British Columbia trial, where the two nations fought to have their land title recognized.

She says government's refusal to affirmIndigenous people's title to the land is, in part, why there arestillconflicts over landamongIndigenous people, governments,companiesandpolice and why the Crown still controls almost 90 per cent of land in Canada.

'We never gave up our land'

In 1987, after years of failed negotiations with the provincial government overtheir claim of ownership and jurisdiction over 58,000 square kilometres of territory in northwest B.C., Gitxsan Hereditary Chiefs Delgamuukwand theWet'suwet'en'sGisday'wabrought their case to the B.C. Supreme Court.

Butin 1991, JusticeAllan McEachern ruled theirtitle was extinguished when B.C. joined Confederation.

The twonations appealedin 1993.

"We never gave up our land. We never lost it in war. We never signed it away in treaty.It is still ours," said Dimdiigibuuin her Gitanmaax community.

In 1997, the Gitxsanand the Wet'suwet'en took their fightto the Supreme Court of Canada.

And they won to a degree.

A 'bittersweet' victory

The judgesruled that Indigenous people in British Columbia haveancestral land rights protected by section 35 (1) of the Constitution Act, 1982, which had not been extinguished when the province joined Confederation.

This means Aboriginal title wasrecognized as an "existing aboriginal right," something that earlierdrafts of the Constitution Act did not include.

It also confirmed Indigenous oral testimony as legitimate as other forms of evidence.

"That'sprobably the greatest legacy of the case, that Indigenous law was uplifted," said Merle Alexander, who observed the case as a law student in 1997 and isnow a partnerwith the firm Miller Titerle.

The Delgamuukw ruling also establishedthat the Gitxsan and Wet'suwet'en have systems of law that predate the days of elected band councils enacted under Canada's Indian Act in 1876.

However,the rulingdid not grant a declaration of Aboriginalland title.

"It'sone of those incredible, bittersweet victories," said Alexander, adding that the case likely cost all partieshundreds of millions of dollars.

'It's shameful':minister

Today,the Crowncontrols 89 per cent of landin Canada. The rest is primarily privately owned.

Indian reserves account for 0.2 per cent of Canada's land mass, but under theIndian Act, First Nations peoples cannot own title to the land on their reserves. The Crown maintainslegal authority on those lands.

Through landclaims,Indigenous people holdapproximately seven per centof land in Canada, but legal scholars agree this number could be higher.

"What happened to the Delgamuukw case?"said Hanamaux, a Gitxsan Sim'oogit (Chief) who also goes by Don Ryan.

"The Constitution [Act]is 40 years old this year. The court case is 25 years old this year. What have you done about it?"

Even a federal minister has stated that the time torecognize Indigenous land title is overdue.

"It's time to give land back," said Marc Miller last fall inhis first commentsas the newly appointed minister of Crown-Indigenous relations.

"It's shameful that today we haven't moved as we should have in the mid-1990s when the Delgamuukw case was issued by the Supreme Court," he said during the taping of CBC's Land Back podcast in 2022.

Listen |New CBC British Columbia podcast uncovers land theft in Canada:

Forced to push the envelope

The Delgamuukw case did set a precedent forother claims: in 2014, the Tilhqot'inused itin a ruling that led to thefirst declaration of Aboriginal title in Canada.

It's one of hundreds of First Nationswins in court one that Indigenous people have argued should have set a precedent for others to have their title to the landaffirmed.

But being sent back to court, over and over, haspushedsometo use additional avenues, like blockades, in their fight.

During the trial in the 1990s,Hanamauxsays, Gitxsans took to blockading roads and railways to stop companies from helping themselves to Gitxsanlands.

"In some ways, that's the only way they'd listen to us," saidHanamaux from his home inGitsegukla.

Today,blockading isa Gitxsan tradition, according toland defenderKolin Sutherland-Wilson.

"This rail line across Gitxsan territory has been blockaded for more than a hundred years," saidSutherland-Wilson, standing on a stretch of tracks near Hazelton, B.C.

In 2021,Sutherland-Wilson, who is from the house Git'luuhl'um'hetxwit, and othersblocked Canadian National Railway linesin solidarity with theWet'suwet'en, who were protesting the Coastal GasLink pipelineon their traditional territory.

"It's one of the very few mechanisms we have to actually push for justice on our lands because, you know, reconciliationhasn't worked," he said.

"We've gone to the highest courts in the land, we've gone right to the Crown, and it seems the only time there's ever any type of progress is whenwe are forced to push the envelope as a last resort."

As for the Crown: "Defining what title is, is some tragic unfinished business in Canada," said Miller.

"But it's time in my mind to start taking a risk, moving away from our positions of power, put our swords down and start working with the community to decide what that is."