Northern Public Affairs, September 2013
J
th
Anniversary of
the Supreme Court of Canada decision Calder et al.
v. Attorney-General of British Columbia, [1973] SCR 313
(“
a particular moment of pause since Frank Calder
on his legacy and on the initiatives of which he was a
in Canadian jurisprudence and a reshaping of the
political landscape of British Columbia, ultimately
These developments continue to guide the approach
1890 Land Committee and 1913 Petition
These outcomes are the result of a singular but far
reaching objective of the Nisga’a Nation — to re-
meeting with the premier of British Columbia and
-
tition to the Privy Council in England setting out
the Petition was a statement that was unanimously
adopted at a meeting of the Nisga’a Nation held at
Kincolith on the 22nd day of January, 1913:
We are not opposed to the coming of the white peo-
ple into our territory, provided this be carried out
justly and in accordance with the British principles
as we expect, the aboriginal rights which we claim
should be established by the decision of His Maj-
esty’s Privy Council, we would be prepared to take
while claiming the right to decide for ourselves the
terms upon which we would deal with our territory,
we would be willing that all matters outstanding
-
ly adjusted by some equitable method to be agreed
upon which should include representation of the
Indian Tribes upon any Commission which might
From this remarkably prescient statement,
which has guided the Nisga’a Nation for over a cen-
tury, one can see some basic principles behind the
not only include recognition of our territory, but
also the right to ‘decide for ourselves’ how we would
Third, the Petition highlighted our willingness to
take ‘a moderate and reasonable’ position in order
impressive efforts, there is no record the Petition was
Instead, in 1927, the federal government made
it illegal for Indians in Canada to organize or raise
Nonetheless, the efforts of the Nisga’a Land Com-
mittee established the mandate for the next genera-
Frank Calder
Frank Arthur Calder was born August 3, 1915 at
Job and Emily Clark, they consented to his adop-
tion to Arthur Calder (Na-qua-oon) and Louisa
-
golx had dreamed that Emily would conceive a son
qua-oon presented a very young Frank Calder to
the Nisga’a chiefs who were gathered at a meeting
had described their struggle as equivalent to shifting
going to send this boy to school where the K’umsii-
learn how the white man eats, how the white man
talks, how the white man thinks, and when he comes
After studying at residential school, Frank went
LETTER FROM BRITISH COLUMBIA
of the Calder decision
Edward Allen
Photo cr
edit: Nisga’a Lisims Gov
er
nment
16 Northern Public Affairs, September 2013
to high school in Chilliwack and then to the Univer-
graduated from the Anglican Theological College
CCF (precursor to the NDP) in the riding of Atlin
Canadian legislature — even though he did not have
1
Frank Calder was also one of the key leaders in
establishing the Nisga’a Tribal Council in 1955 to
pursue the mandate of the hereditary chiefs set out
-
parent that while it was no longer illegal to organize
and discuss land claims, the federal and provincial
governments had no intention of entering into a
Expressing the spirit of the times, in 1969 Prime
Minister Pierre Trudeau summarized the dismissive
-
ment in respect of the Nisga’a demands for recogni-
tion of our Aboriginal rights:
rights because no society can be built on historical
Frank Calder approached Thomas Berger
-
Tribal Council commenced an action in the Su-
preme Court of British Columbia against the Attor-
ney-General of British Columbia for a declaration
“that the aboriginal title, otherwise known as the
Indian title, of the Plaintiffs to their ancient tribal
legal declaration was the preferred approach of the
Nisga’a leadership because it would allow the court
to state the legal conclusion that Nisga’a aboriginal
title still existed without having to immediately ad-
-
ate a comprehensive settlement with Nisga’a Nation
rather than face any subsequent legal proceedings to
The parties to the case agreed that the territory
subject to the action consisted of 1,000 square miles
in and around the Nass River Valley, Observatory
Inlet, Portland Inlet, and the Portland Canal, all lo-
was dismissed at trial by the Supreme Court and the
Court of Appeal of British Columbia rejected the
In his book,
Thomas Berger summarized the hurdles in bring-
frame the case so that the courts would take it seri-
and judges had no experience in adjudicating such
Calder case Don
Rosenbloom recounted, this case was not even on the
radar screen of many members of the legal profession
who apparently were equally dismissive of even the
Changes to Aboriginal Law
On January 31, 1973, the Supreme Court of Canada
released the reasons for judgment for Calder. Six of
the seven judges who heard the case ruled that Ab-
original title existed as a matter of law in Canada,
regardless of any grant or act of recognition by the
that any existing title of the Nisga’a Nation had been
extinguished by the laws pertaining to land enacted
evince a clear and plain intent to extinguish Aborig-
basis of a technicality that the action was not properly
However, despite the technical result, Calder has
served ever since as a catalyst for important changes
the reasoning behind the decision introduced a plu-
ralistic perspective into Canadian law, opening the
door to concepts of legal ownership from sources
In his reasons for decision of the Court of Ap-
peal, Chief Justice Davey had commented that the
Nisga’a people “were undoubtedly at the time of set-
tlement a very primitive people with few of the in-
stitutions of civilized society, and none at all of our
false and outdated notions, Justice Hall commented
The assessment and interpretation of the historical
documents and enactments tendered in evidence
must be approached in the light of present-day re-
search and knowledge disregarding ancient concepts
formulated when understanding of the customs and
culture of our original people was rudimentary and
Northern Public Affairs, September 2013
incomplete and when they were thought to be whol-
As Michael Asch observed in the 30
th
anniver-
sary of the Calder decision,
Calder
wrote at page 191:
Rarely in the history of a country is a court judg-
ment so momentous that it causes society to reex-
counted the 1973 judgment of the Supreme Court
-
to the way in which Canada constructs Aboriginal
rights and, in so doing, propelled this issue from the
The language of Calder
-
Some
of the origins in Canadian law for the recognition of
inherent rights can be found in the language of Jud-
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, or-
ganized 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
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
This language has been mirrored in the leading
[1996] 2 SCR 507 at paragraphs 30 — 33:
In my view, the doctrine of aboriginal rights exists,
of one simple fact: when Europeans arrived
in North America, aboriginal peoples were
already here, living in communities on the
land, and participating in distinctive cul-
tures, as they had done for centuries. It is this
fact, and this fact above all others, which separates
aboriginal peoples from all other minority groups in
Canadian society and which mandates their special
is also supported by
the prior jurisprudence of this Court. … in
the judgments of both Judson J. and Hall J.
(each speaking for himself and two others)
the existence of aboriginal title was recog-
nized . . .
The position of Judson and Hall JJ. on the
basis for aboriginal title is applicable to the
s. 35(1). Aboriginal title is the aspect of aboriginal
aboriginal land rights. As such,
the explanation
of the basis of aboriginal title in Calder, su-
pra
, can be applied equally to the aboriginal
Both aboriginal title and aboriginal rights
arise from the existence of distinctive ab-
original communities occupying “the land as
their forefathers had done for centuries”…
Thus Calder introduced a perspective that has
informed the current doctrine concerning the con-
Calder has also contributed to developments in
policy and jurisprudence internationally, particular-
Treaty of Waitangi Act
Waitangi Tribunal and gave the Treaty of Waitangi
The Tribunal was empowered to investigate pos-
sible breaches of the Treaty by the New Zealand
government or any state-controlled body, occurring
the Motunui — Waitara report, Waitangi Tribunal
Calder was cited:
Nonetheless the approach of the New Zealand
Courts, and of successive Governments, does not
compare favourably with that taken by other Courts
and Governments in their consideration of Indig-
treaties with the original Indian populations have
been recognized by the Courts, and in areas not
covered by treaties, common law rights are regarded
as vesting in native peoples by virtue of their prior
occupation (refer for example, Calder v Attorney-Gener-
al of British Columbia
Uncertainty
One of the key outcomes of the Calder decision is the
political and economic uncertainty which manifest-
Uncertainty could be seen at the personal lev-
el expressed in the comments of leading politicians
were the remarks of then Prime Minister Pierre
-
haps you have more legal rights than we thought you
3
There was also uncertainty amongst ranking
th
anniversary of the Calder deci-
sion hosted by the University of Victoria in 2003, re-
tired Justice Gérard La Forest of the Supreme Court
of Canada commented on the surprise he personally
experienced when Calder
been Assistant Deputy Attorney General of Canada
and explained that even the leading policy advisors
of the day were caught completely off guard by this
Uncertainty as to existence of Aboriginal title
became a new variable in British Columbia’s polit-
Nisga’a Tribal Council decided that it would pro-
claim the result in Calder to be a victory for the Nis-
-
lowing the decision, the leadership stated that the
Calder decision had put the issue of legal uncertainty
Nelson Leeson, who later served as President of
Nisga’a Nation, had been brought in to assist with
received strict instructions that whenever a camera
was pointed anywhere in his direction, he was to
ensure that he captured airtime and promoted the
-
tainty acquired a political life of its own creating
As one example of the far-reaching effects of
this uncertainty, the results of a 1990 Price Water-
house study on the economic impacts of uncertainty
reached the following conclusions:
• Uncertainty was associated with a $1 billion im-
• Lost capital expenditures in the mining industry
were estimated to be $50 million per year, and a fur-
ther $75 million per year of expenditures were de-
To this day, one can see the lasting effects of
**REGISTRATION NOW OPEN**
CREATING CANADA: From the Royal Proclamation of 1763 to Modern Treaties
October 7, 2013
Auditorium, Canadian Museum of Civilization
Early Registration (before Sept 13) $125 + HST
After Sept 13, $249 + HST
Explore the importance of the Royal Proclamation for understanding of Canadian history, land
claims and self-government agreements, and the treaty making process — both historic and
modern. Featuring prominent academics, Aboriginal leaders and legal experts, this symposium
will give you the background and context you need to work successfully with treaty organiza-
tions across Canada.
Hosted by the Land Claims Agreements Coalition.
More details and registration links at www.landclaimscoalition.ca.
20 Northern Public Affairs, September 2013
Northern Development website includes:
The federal government is negotiating treaties in
British Columbia (BC) in order to resolve questions
of uncertainty with respect to land ownership and
usage, the management and regulation of lands and
Uncertainty about the existence and location of
Aboriginal rights create uncertainty with respect
to ownership, use and management of land and
Land Claims Policy
Soon after Calder, there was shift in addressing land
In All Fair-
recounted the history:
[B]y 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 as-
sertion of Native title by the Nishga Indians of Brit-
ish Columbia, established the pressing importance
-
er, 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?
At the same time, the Cree of James Bay and the
Inuit of Arctic Quebec were trying to protect their
position in the face of the James Bay Hydro Electric
It is from these actions that the current
method of dealing with Native claims
emerged.
Nisga’a Final Agreement
law, politics and international Indigenous rights, the
main intent behind launching the case was to force
Calder deci-
Canada came to the negotiation table with the
to its position that since the Supreme Court split on
whether Aboriginal title had been extinguished, the
which case Aboriginal title had never existed in Brit-
When the language of the Nisga’a Final Agree-
Calder was of course highlighted in the Preamble to
our treaty:
WHEREAS the Nisga’a Nation has sought a just
and equitable settlement of the land question since
the arrival of the British Crown, including the
preparation of the Nisga’a Petition to His Majesty’s
Privy Council, dated 21 May, 1913, and the conduct
of the litigation that led to the decision of the Su-
preme Court of Canada in Calder v. the Attorney-Gen-
eral of British Columbia
in 1973, and this Agreement is
intended to be the just and equitable settlement of
Of course Frank Calder was with the negotiat-
-
tion wound its way through the House of Commons
and Senate, many of us distinctly recall the House
of Commons debate when the Reform Party of
-
ing motions to the proposed settlement legislation,
late evening, on the parliamentary channel which
was broadcasting the votes in the House, the camera
just managed to capture in the distance, in the upper
elderly gentlemen — Frank Calder and Rod Robin-
son — both of whom were vigilantly monitoring the
Campbell Decision
We celebrated the effective date of our treaty, but a
few days later the Nisga’a Nation was once again in
of the Liberal Party Gordon Campbell, future At-
torney General Geoff Plant, and future Minster of
Forestry (and eventually Aboriginal Affairs) Michael
constitutional validity of the Nisga’a Final Agree-
issue with the Nisga’a Government provisions of the
In their statement of claim, they asserted that
the treaty violated the constitution because parts
21
Northern Public Affairs, September 2013
of it set out Nisga’a Government legislative juris-
diction inconsistent with the exhaustive division of
powers granted to Parliament and the Legislative
Assemblies of the provinces by sections 91 and 92
of the
the legislative powers set out in the treaty interfere
that non-Nisga’a Canadian citizens who reside in
or have other interests in the territory subject to the
Nisga’a Government were denied democratic rights
guaranteed to them by Section 3 of the Canadian
Charter of Rights and Freedoms
Ironically, in this instance it was the challengers
to the treaty that faced a number of interesting hur-
to disprove
-
defend the Nisga’a Final Agreement from any such
very few instances in Canadian litigation in which
the Crown in right of Canada and a Province actu-
ally defended the constitutionally protected right to
In this instance, Calder once again provided the
framework of reference for consideration of Aborig-
paragraph 20, Justice Williamson wrote in his deci-
sion:
It is not disputed that long before the arrival of Eu-
ropeans, the Nisga’a occupied substantial areas of
territories, and systems in place for governing
Justice Williamson ruled at paragraph 179:
For the reasons set out above, I have concluded
that after the assertion of sovereignty by the British
Crown, and continuing to and after the time of
Confederation, although the right of aboriginal
people to govern themselves was diminished, it was
-
ernment could be extinguished after Confederation
expressed that intention, or it could be replaced or
such rights cannot be extinguished, but they may
Court of Appeal arrived at the following conclusion
on the legal validity of the Nisga’a Final Agreement:
The Treaty has been carefully crafted to respect
-
to be: an honourable attempt to resolve important
but disputed claims, to achieve reconciliation, and to
lay the foundation for a productive and harmonious
future relationship between the Nisga’a Nation and
5
Conclusion
th
anniversary of the Calder
decision, we continue to celebrate the many accom-
plishments of Frank Calder, the legacy of that gen-
eration of great leaders, and the many important
outcomes that have resulted from the Calder
These outcomes include a sea change in Canadian
jurisprudence which now includes recognition of
self-government; a shift in the political landscape of
Canada that recognizes the uncertainty that con-
tinues to challenge Canadian political, social, and
economic institutions in the absence of reconcilia-
tion; and a major shift in policy to address the issue
the Nisga’a Nation has begun to reap major bene-
There has also been a resurgence in our pride and
-
cissitudes of the Indian Act
what we may be able to celebrate at our 50
th
anni-
Edward Allen is Director of Communications & Intergov-
ernmental Relations for the Nisga’a Lisims Government. He
Footnotes
Calder and the Representation of Indigenous
Let Right Be Done: Aboriginal
ed Hamar Foster,
Heather Raven and Jeremy Webber.
3 Kevin Roberts
-
eng/1100100016299/1100100016300
5
2013
Dostları ilə paylaş: |