Calder v. Attorney-General of British Columbia [1973]
In 1967, Frank Calder and other Nisga’a elders sued the provincial government of British Columbia, declaring that Nisga’a title to their lands had never been lawfully extinguished through treaty or by any other means. While both the BC Supreme Court and the Court of Appeal rejected the claim, the Nisga’a appealed to the Supreme Court of Canada for recognition of their Aboriginal title to their traditional, ancestral and unceded lands. Their appeal was a landmark move that posed considerable risk not only to the Nisga’a, but to all Aboriginal peoples hoping to have their rights and title affirmed and recognized.
What the Supreme Court concluded was groundbreaking. While the lower levels of court had denied the existence of Aboriginal title, the Supreme Court ruled in 1973 that Aboriginal title had indeed existed at the time of the Royal Proclamation of 1763. The Supreme Court’s 1973 decision was the first time that the Canadian legal system acknowledged the existence of Aboriginal title to land and that such title existed outside of, and was not simply derived from, colonial law.
However, the Court was split on whether the Nisga’a’s claim to their lands was valid. Three judges ruled that while Aboriginal title may have existed at one point, it had since been extinguished by virtue of Confederation and colonial control over the land. Three other judges affirmed the Nisga’a’s Aboriginal title, arguing that it had never been extinguished through treaty or statute. The seventh judge dismissed the case on a technicality.
While the Nisga’a did not win their case and the ruling did not settle their land question, it did pave the way for the federal government’s Comprehensive land claims process, which sets up a process for Aboriginal groups to claim title to their territory. The province of British Columbia, however, refused to acknowledge Aboriginal title until 1990, when the British Columbia Claims Task Force was established. This would then lead to the B.C. Treaty Process and the settling of the first modern land claim in British Columbian history, the Nisga’a Final Agreement in 1998. The Supreme Court’s acknowledgement of the existence of Aboriginal title also opened the door for other Aboriginal rights cases, most notably Delgamuukw v. British Columbia (1997), which further defined Aboriginal title. As a landmark case, the Calder decision continues to be cited in modern Aboriginal land claims across Canada, as well as internationally in Australia and New Zealand.
By Tanisha Salomons
Recommended Sources
Asch, Michael. “From Calder to Van der Peet: Aboriginal Rights and Canadian Law, 1973-96.” Indigenous Peoples’ Rights in Australia, Canada, & New Zealand. Havemann, Paul, Ed. Oxford: Oxford University Press, 1999. 428-445.
Foster, Hamar, Heather Raven & Jeremy Webber. Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights. Vancouver: UBC Press, 2007.
Kulchyski, Peter. “Calder,” in Unjust Relations: Aboriginal Rights in Canadian Courts. Don Mills: Oxford University Press, 1994. 61-126.
