The Calder Case
Canada’s legal system acknowledges Indigenous title for the first time
In 1967, Frank Calder, the first Indigenous person elected to British Columbia’s legislature, sued the provincial government. Calder, along with several other Nisga'a Elders, argued that the Nisga'a Nation had never formally given up their lands in and around the Nass Valley. The lawsuit was far from the first time the First Nation had fought for the territory they’ve lived on since time immemorial. Nisga’a leaders had formally protested B.C.’s decision to ignore their land claims as early as 1881 but without success. More than 90 years later, the nation’s lawsuit seemed destined for a similar fate.
In 1969, the Supreme Court of British Columbia dismissed the case. When Calder, along with renowned lawyer and jurist Thomas Berger, appealed the decision at the B.C. Court of Appeal, the lawsuit was dismissed again. But Calder, who had been fighting for his people’s land for two decades, didn’t relent, even despite the opposition of many First Nations in B.C. who feared the lawsuit could compromise their own land claims. In 1971, the Nisga’a looked to the Supreme Court of Canada to recognize their title to roughly 12,000 square kilometres of unceded land — meaning territory that hasn’t officially been handed over to a new party.
On Jan. 31, 1973, seven Supreme Court justices handed down their landmark decision. The Nisga’a Nation's claim to the land was dismissed, 4-3. However, the defeat disguised a groundbreaking, moral victory for the Nisga’a and Indigenous people across Canada. For the first time in its history, the Canadian legal system acknowledged the existence of Indigenous title to land. Six out of seven judges agreed that Aboriginal title derived from the "historic occupation and possession" of the land. Not only that, but three agreed that no government had extinguished title to the Nisga'a's ancestral territories. Three judges disagreed, while the remaining justice dismissed the case on a technicality.
The Calder Case pressured the federal government to further rethink its approach to Indigenous affairs. Only four years before, the Trudeau government's infamous White Paper had proposed abolishing the Indian Act and treaty rights in favour of treating Indigenous people in Canada as no different than non-Indigenous Canadians. The Supreme Court’s decision made that position — already widely condemned by Indigenous activists — untenable. At the beginning of 1973, the federal government had not negotiated an Indigenous treaty in more than 50 years. But only months after the Calder case ended, Canada introduced an organized process for Indigenous people to make land claims for the first time ever. In 1976, Ottawa began land title negotiations with the Nisga’a that would span nearly a quarter of a century. Then, nearly a decade after the Supreme Court’s decision, the federal government included Aboriginal rights, the very same that the Nisga’a had long fought to be recognized, in Section 35 of Canada’s repatriated constitution.
Finally, in 1998, the Nisga’a signed the first treaty in B.C. since Treaty 8 in 1899. It came into effect in 2000.
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