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Indigenous Sovereignty: Calder et al. v. Attorney-General of British Columbia (1973)

"[I]t 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'. What they are asserting in this action is that they had a right to continue to live on their lands as their forefathers had lived and that this right has never been lawfully extinguished. There can be no question that this right was 'dependent on the goodwill of the Sovereign'" (328).

Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313

"Surely the Canadian treaties, made with much solemnity on behalf of the Crown, were intended to extinguish the Indian title. What other purpose did they serve? If they were not intended to extinguish the Indian right, they were a gross fraud and that is not to be assumed. Treaty No. 8 made in 1899 was entered into on behalf of Queen Victoria and the representatives of Indians in a section of British Columbia and the Northwest Territories. The treaty was ratified by the Queen's Privy Council in Canada. Certain statements in the treaty are entirely inconsistent with any argument or suggestion that such rights as the Indians may have had were extinguished prior to Confederation in 1871. . . . If there was no Indian title extant in British Columbia in 1899, why was the treaty negotiated and ratified?" (394).

"[T]he appellants' [i.e. Nisga'as] right to possession of the lands . . . and their right to enjoy the fruits of the soil, of the forest, and of the rivers and streams within the boundaries of said lands have not been extinguished by the Province of British Columbia or by its predecessor, the Colony of British Columbia, or by the Governors of that Colony" (422).

Hall, Emmett Matthew. Dissenting opinion. Calder et al. v. Attorney-General of British Columbia, Supreme Court Reports, 1973, pp. 345-422. Supreme Court of Canada.

"Prior to 1973 the government held that aboriginal title claims were not susceptible to easy or simple categorization; that such claims represented, for historical and geographical reasons, such a bewildering and confusing array of concepts as to make it extremely difficult to either the courts of the land or the government of the day to deal with them in a way that satisfied anyone. Consequently, it was decided such claims would not be recognized. However, by early 1973 the whole question of claims based on aboriginal title again became a central issue; the decision of the Supreme Court of Canada in the Calder Case, an action concerning the right of assertion of Native title by the Nishga Indians of British Columbia, established the pressing importance of this matter. Six of the judges acknowledged the existence of aboriginal title. The court itself, however, while dismissing the claim on a technicality, split evenly (three-three) on the matter raised: did the native or aboriginal title still apply or had it lapsed?" (11).

In All Fairness: A Native Claims Policy. Indian Affairs and Northern Development, 1981.

"For the first time, Canada's highest court had unequivocally affirmed the concept of aboriginal title" (16).

Berger, Thomas R. "Native History, Native Claims and Self-Determination." BC Studies, no. 57, Spring 1983, pp. 10-23.

"The decision of the Supreme Court of Canada in Calder v. The Queen in 1973 changed everything. In that decision, the court recognized the legal validity of Aboriginal title but was divided on the question of whether it still existed in British Columbia. It was a landmark case in more ways than one. It represented not only a shift in legal thinking; it also caused Aboriginal leaders and their advisers to think about the possibility that perhaps the courts, under the leadership of the Supreme Court, were prepared to rethink some of their earlier limiting legal precedents. Subsequent decisions have affirmed that confidence, but there was little reason for any confidence in the early years" (200).

Truth and Reconciliation Commission of Canada. The Final Report of the Truth and Reconciliation Commission of Canada. Canada's Residential Schools: The Legacy, vol. 5, McGill-Queen's UP, 2015.