Some background. The eponymous Delgamuukw is a hereditary chief of the Gitksan tribe in British Columbia. The Gitksan, along with the Wet'suwet'en, originally claimed ownership and jurisdiction over some 58,000 square kilometres of the province. By the time the case had reached the Supreme Court of Canada, having been rebuffed by both the B.C. Supreme Court and the B.C. Court of Appeal, the claim had been reduced to the lesser - and more diffuse - notion of "aboriginal title," which the court had previously ruled was one of those aboriginal rights affirmed in Section 35.1 of the 1982 Constitution.

The meaning of that phrase, however, had remained uncertain. The Delgamuukw ruling goes a long way to defining the term - but at the cost of creating much greater uncertainty in society at large. The sometimes overlapping claims of B.C. native groups, after all, sum to 110 per cent of the province's territory. If the whole of the province is now to be encumbered by a previously unsuspected regime of aboriginal title, it rather makes hash of conventional property relations. To say the least. Already there are reports of logging and mining operations being halted on lands under aboriginal claim - even where the claims have not yet been sorted out.

In essence, the court ruled that "aboriginal title" means something more than the right to use the land, as their ancestors had done for centuries before, but something less than outright ownership. The assertion of Crown sovereignty over what is now B.C. a century and a half ago, though hardly reversible, had not relieved the Crown of the obligation to treat fairly with native peoples. And fairness, the Court ruled, demanded not only that natives should have the right to virtually unfettered use of the land claimed - a right that it said extends to uses beyond anything their ancestors could have imagined - but the right to its exclusive use.

Should the government wish, in the public interest, to grant others rights to use the land, it must at the very least consult with the natives; in some cases, that right of consultation extends to a requirement for consent - and then only with compensation. This is, remember, mostly Crown land, to which tenures have in many cases already been assigned: mining claims, grazing permits, etc. So not only is the whole future economic development of the province up in the air, but so, presumably, is the past. In the words of Mel Smith, the former senior B.C. mandarin and constitutional expert whose trenchant analysis of the ruling I draw upon here: "What price the City of Vancouver?" So far, so contentious. Whatever the specific limits of aboriginal title, the idea that the presumptive sovereignty of the Crown must be tempered by fairness to those who were already here - that might is not the only right - is a noble one. Where the court runs off the rails is in the standard of proof required to substantiate a claim. The basic rule, sensibly enough, is occupancy: if Tribe X can show that its ancestors occupied the land, in some organized way, before British sovereignty, that they did so to the exclusion of other native groups, and that the same tribe has continued to occupy the land ever since, that's enough to establish title in common law.

But the court found all this a little too confining. Or rather, it so defined these three principles as to mean, well, just about whatever the natives say they mean. To show prior occupancy, for example, it is enough to show present occupancy: to prove you were there before, you can say you were there after. Continuity, of course, is essential, but "there is no need to establish an unbroken chain of continuity." Continuity, that is, should not be interpreted to exclude discontinuity. And as for exclusivity, that too is capable of many meanings. "Where aboriginal laws at the time of sovereignty allowed other Indian bands to occupy an area," the court writes, "there would still be exclusivity." As if posterior precedence, discontinuous continuity, and non-exclusive exclusivity were not dizzying enough notions in themselves, in support of these tenuous precepts the court overturns several centuries of common law rules of evidence - specifically, those that would exclude uncorroborated or "hearsay" testimony - on the extraordinary grounds that otherwise the natives might not win their case. Henceforth, myths, legends and other "oral histories" of events long ago will be admissible as evidence. No wonder B.C. is in such confusion - more so than usual, I mean.

The Delgamuukw ruling initially provoked bewilderment, punctuated by the occasional polite howl of protest from legal scholars. As time wears on, and the consequences sink in with the general public, the protests will be less polite, and the howls will grow.