Calder v. British Columbia (Attorney General)
Encyclopedia
Calder v. British Columbia (Attorney General) [1973] S.C.R. 313, [1973] 4 W.W.R. 1 was a decision by the Supreme Court of Canada
. It was the first time that Canadian law acknowledged that aboriginal title
to land existed prior to the colonization of the continent and was not merely derived from statutory law.
In 1967, Frank Arthur Calder
and the Nisga'a Nation
Tribal Council brought an action against the British Columbia government for a declaration that aboriginal title to certain lands in the province had never been lawfully extinguished.
At trial and on appeal, the courts found that if there ever was aboriginal title in the land it was surely extinguished.
The Supreme Court found that there was indeed an aboriginal right to land that existed at the time of the Royal Proclamation of 1763
. However, the Court was split 3 to 3 on whether the claim to land was valid. One group claimed that though title existed it had been extinguished by virtue of the government's exercise of control over the lands, while the other group required that more be done to show extinguishment
.
basis for aboriginal title was later expanded on in Guerin v. The Queen, [1984] 2 S.C.R. 335, and most recently in Delgamuukw v. British Columbia
[1997] 3 S.C.R. 1010. DC
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
. It was the first time that Canadian law acknowledged that aboriginal title
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
to land existed prior to the colonization of the continent and was not merely derived from statutory law.
In 1967, Frank Arthur Calder
Frank Arthur Calder
Frank Arthur Calder, was a Nisga'a politician in Canada, the first Status Indian to be elected to any legislature in Canada....
and the Nisga'a Nation
Nisga'a
The Nisga’a , often formerly spelled Nishga and spelled in the Nisga’a language as Nisga’a, are an Indigenous nation or First Nation in Canada. They live in the Nass River valley of northwestern British Columbia. Their name comes from a combination of two Nisga’a words: Nisk’-"top lip" and...
Tribal Council brought an action against the British Columbia government for a declaration that aboriginal title to certain lands in the province had never been lawfully extinguished.
At trial and on appeal, the courts found that if there ever was aboriginal title in the land it was surely extinguished.
The Supreme Court found that there was indeed an aboriginal right to land that existed at the time of the Royal Proclamation of 1763
Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War...
. However, the Court was split 3 to 3 on whether the claim to land was valid. One group claimed that though title existed it had been extinguished by virtue of the government's exercise of control over the lands, while the other group required that more be done to show extinguishment
Extinguishment
Extinguishment is the destruction of a right or contract. If the subject of the contract is destroyed , then the contract may be made void. Extinguishment occurs in a variety of contracts, such as land contracts , debts, rents, and right of ways...
.
Aftermath
With this decision the government of Canada overhauled much of the land claim negotiation process with aboriginal peoples. Thebasis for aboriginal title was later expanded on in Guerin v. The Queen, [1984] 2 S.C.R. 335, and most recently in Delgamuukw v. British Columbia
Delgamuukw v. British Columbia
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, also known as Delgamuukw vs. the Queen is a famous leading decision of the Supreme Court of Canada where the Court made its most definitive statement on the nature of aboriginal title in Canada....
[1997] 3 S.C.R. 1010. DC