Aboriginal Resource and Subsistence Rights after Delgamuukw and Marshall

This paper reviews the 1997 and 1999 decisions of the Supreme Court of Canada (SCC) regarding Aboriginal peoples’ access to resources: Delgamuukw v. British Columbia, which set out basic principles surrounding Aboriginal title, and R. v. and Marshall, which dealt with access to resources in relation to a treaty right to trade. It then explores these decisions, examining the consequences of their pronouncements for the abilities of Aboriginal peoples to further their varied interests in resources. It starts with the law set out in seminal cases (Sparrow; Van der Peet, and Gladstone) from 1990 to 1996 and explores the impact of Delgamuukw and Marshall on this jurisprudence. Analysis begins with the establishment of a conceptual framework constructed around the various sorts of interests an Aboriginal community might have in gaining greater access to resources. The discussion concludes with an analysis of the implications of the SCC for satisfying these compartmentalized interests, and a consideration of possible strategies that have potential to move Aboriginal communities toward their greater satisfaction