Calder et al. v. Attorney-General of British Columbia

Supreme Court of Canada – [1973] S.C.R. 313


British Columbia Aboriginal titleDoctrine of discovery
Summary

The Calder case is certainly one of the Supreme Court decisions that had the most impact on Aboriginal rights as well as on public policy. Il recognized the possible existence of aboriginal titles in Canada.

In addition, Calder encouraged the federal government to undertake negotiations with Aboriginal communities regardless of the vagueness and uncertainties left by the Supreme Court. The government decided to obtain the cession of the titles in order “to restore the integrity of the state as ‘Self’” (Slowey, 2000).

Quote

Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a “personal or usufructuary right”. (p. 328)

Issue

Does the Nishga Indian Tribe hold an Aboriginal title to their traditional territory or has this title been lawfully extinguished over the course of time?

Decision

4 against 3: aboriginal title can exist, but the Nishga’s has been extinguished – the suit was, in any case, burdened by a procedural vice.

Parties

Between: Frank A. Calder et al., representatives of the Nishga Indian Tribe

And: British Columbia Crown

Facts

The appellants are representatives of the Nishga Indian Tribal Council of British Columbia. The Nishga Nation encompasses four bands: the Gitlakdami, Canyon City, Greenville and Kincolith. The President of the Nishga Tribal Council was Frank A. Calder, who was also a member of the Legislative Assembly of British Columbia and the province’s first Aboriginal minister (Martin, 2006).

In 1951, the federal government revamped the Indian Act by abolishing and modifying several of its sections, including one that prohibited status Indians from making land claims. In the late 1960s, the Union of British Columbia Indian Chiefs was formed. Canada’s Prime Minister Lester B. Pearson promised British Columbia’s Natives that their land claims would be dealt with.

Over the years, the Government of British Columbia (as owner of the Crown lands) had given permits and other licenses to private companies to exploit the natural resources found on traditional Nishga territories. These territories covered an area of 1,000 square miles, situated around the Nass River Valley, Observatory Inlet, Portland Inlet and the Portland Canal in northwestern British Columbia, on which the tribe had been living from time immemorial.

In 1969, as Pearson’s promise had never materialized, Calder and the Nishgas took action against the legislature asking for a declaration that they held an Aboriginal title to the territory that they inhabited (Excell, 1990).

Arguments

The Crown: The territory has never been the subject of a treaty or specific contract on behalf of the Indians; therefore, they did not hold any Aboriginal title to the said land.

The Nishgas: Their occupation of the territory since time immemorial gave them title to the land. English law accepted this means of acquiring land, thus making ratification by legislation, treaty or executive order unnecessary. However, if indeed an acknowledgment by Parliament was required to obtain a title to land, the Royal Proclamation of 1763 designated British Columbia as “Indian Land,” and that their title had never been extinguished since then.

Decision of the lower courts

British Columbia Supreme Court (1969): The Nishga Nation’s claim for an Aboriginal title to the said territories is rejected.

British Columbia Court of Appeal (1970): The appeal was dismissed.

Reasons for Judgement

Jury

Martland, Judson, Ritchie, Pigeon (concurring)

Reason

The appeal was dismissed on a technicality by the tie-breaking vote of J. Pigeon who did not express an opinion on the Aboriginal title but still chose to dismiss the appeal over another matter. The six other Supreme Court Justices recognized the concept of Aboriginal title in Canadian law, if the title had not already been extinguished (Kulchyski, 1994).

The appeal is dismissed, but the Supreme Court recognizes the existence of aboriginal title in Canadian aboriginal law, as long as the title was never extinguished (Kulchyski, 1994).

The Court conducts an extensive review of the St. Catherine’s Milling case and the US Supreme Court Cherokee cases.

The Royal Proclamation of 1763 did in fact confer a land title on the Indians under the Crown’s protection. Yet the Indians living on the future territory of British Columbia were not under the Crown’s protection given that the Proclamation established four separate governments and their respective boundaries (Quebec, East and West Florida and Grenada). British Columbia’s boundaries were not established until 1825.

In 1899, Treaty No. 8, involving the surrender of territories in northeastern British Columbia, was concluded. However, the Court did not recognize the treaty as conferring any rights on the Nishga.

Any title that might have been held by the Nishga would have been extinguished by the Proclamation of 1858 whereupon the Governor of B.C. was endowed with the permission to “have Crown lands sold within the colony and was authorized to grant any land belonging to the Crown in the colony” (p. 331). Other Proclamations have conveyed the intention of giving British Columbia absolute sovereignty over land, thus rendering Aboriginal title a conflicting interest.

When British Columbia entered Confederation in 1871, the federal government assumed responsibility for the Indians, setting aside tracts of lands for Indians by creating reserves for them to occupy.

Procedural vice

Justice Pigeon underlines that the case had to be dismissed, because Calder had not obtained the required authorization to file a suit against the Crown. In British Columbia, the sovereign immunity from suit had not yet been removed in absence of a fiat of the Lieutenant-Governor. The majority does not decide upon this issue, but Judson, writing for the majority, expresses agreement with Pigeon’s reasons.

Impact

On August 8, 1973, Jean Chrétien (then Minister of Indian and Northern Affairs) announced a new federal policy for the negotiation of land claims. The public statement read as follows: “The Government is now ready to negotiate with authorized representatives of these native peoples on the basis that where traditional interest in the lands concerned can be established, an agreed form of compensation or benefit will be provided to native peoples in return for their interest” (Department of Indian Affairs and Northern Development, 1973). As Hamilton maintains, it is clear from this statement that the policy’s objectives were not to acknowledge Aboriginal rights and title to land and resources. In fact, the policy continued in the footsteps of past practices aimed at the extinguishment of Aboriginal rights and title for some kind of compensation (Hamilton, 1995).

One other reaction to Calder was the filing of complaints and a land claim by the Council for Yukon Indians (CYI) in January 1973.  In “Together Today For Our Children Tomorrow,” the CYI tried to get Prime Minister Trudeau to accept their claim for negotiation. Given the decision in Calder, Trudeau affirmed that “in principle, I don’t think there is a great difference between us.” He also portrayed the CYI’s attitude as “positive and constructive” and “very welcome to the government.” The government’s agreement to negotiate with the CYI was only one of many developments in land claims during this period.

In the Maritime region, the government did not adopt the same course of action despite a situation similar to that in the Yukon, arguing that the land claims in the Atlantic Provinces and southern Quebec were of a different nature.

James Bay and Northern Quebec Agreement

A short time after the Supreme Court delivered its decision in the Calder case, the federal government undertook negotiations for the James Bay and Northern Quebec Agreement, which would be the first “land claim/self-government agreement.” The agreement, which was negotiated in favour of Hydro-Québec, provided for the extinguishment of Aboriginal title in order to enable the corporation to purchase the land (Slowey, 2000). Canada meant for the James Bay Agreement to extinguish the Aboriginal rights of all the Indian and Inuit signatories, as well as those of the Indigenous peoples in the claimed territories despite their non-participation in the Agreement process. As for the Northeastern Quebec Agreement of 1978, it did not include such a clause since the government claimed Aboriginal rights had previously been extinguished (Hamilton, 1995).

Nisga’s negotiations

In 1999, the Nisga’a Nation (as it was then known), which sponsored this case, the federal government and the British Columbia government concluded the Nisga’a Final Agreement. Under this modern treaty, the Nisga’a gained the right to self-government over their traditional territory. The treaty recognized their aboriginal rights by giving the Nisga’a jurisdiction over the management of their lands and resources. For example, they have allocations for fishing salmon for food as well as commercially. They were also granted an indemnity.

Related Cases

This case was particularly referred to in these aboriginal title cases:

Guerin v. The Queen, [1984] 2 S.C.R. 335

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010

Mitchell v. M.N.R., [2001] 1 S.C.R. 911


Sources

Anderson Robert Brent. 2004. Indigenous Land Claims and Economic Development, The American Indian Quarterly 28 (3) & (4): 634-648.

Department of Indian Affairs and Northern Development, “Statement made by the Honourable Jean Chrétien, Minister of Indian Affairs and Northern Development, On Claims of Indian and Inuit People,” August 8, 1973.

Excell Robert. 1990. History of Indian Land Claims in B.C., The Advocate 48 (6): 866-880.

Government of Canada. 1999. Nisga’a Final Agreement. On-line. http://www.ainc-inac.gc.ca/al/ldc/ccl/fagr/nsga/nis/nis-eng.pdf. Retrieved on June 16, 2010.

Hamilton A.C. 1995. Canada and Aboriginal Peoples: A New Partnership, Report of the Hon. A.C. Hamilton, Fact Finder for the Minister of Indian Affairs and Northern Development. Report prepared for Indian and Northern Affairs Canada, Ottawa.

Martin Sandra. 2006. Obituary: Frank Calder, politician and Nisga’a Chief: 1915-2006; The ‘dream child’ started a native land-claims case that would reverberate across Canada and around the world, Globe and Mail (November 9, 2006).

Slowey Gabrielle A. 2000. Aboriginal Self-Government Extinguishment of Title and the Canadian State Effectively Removing the “Other”?, Native Studies Review 13 (1): 1-17.

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