Fifty years since Calder v. The Attorney General of British Columbia: how Canadian policies – and judges – adapted to delay and deny recognition of Indigenous Peoples’ land title

On January 31, 1973, Indigenous people’s unextinguished right to “possession” of their lands was recognized in a Canadian court for the first time.

Three Supreme Court of Canada judges reasoned that the Indigenous Nisga’a People had never lost to British Columbia their “possession of the land,” and had the continuing “rights to enjoy the fruits of” their land.     

In the case presented by the Nisga’a nation, with Frank Calder as the name plaintiff, the people established that their ancient rights to the soil had not, could not have been, diminished by any unilateral pronouncements or colonial legislative acts: the Nisga’a had never freely relinquished, sold, or made treaty to surrender them.

Supreme Court of Canada justices Hall, Spence, and Laskin wrote 50 of 72 pages in the Calder ruling, finding in favour of that position, as per the Canadian constitution.

The court ruling was split, however. Three judges ruled Nisga’a had no title and, if it ever did, the presence of a British colony nullified it. The seventh judge refused to decide, based on a procedural anomaly.

Prime Minister Pierre Trudeau’s reaction was to say, “I guess you had more rights than we thought, when we did the White Paper in ’69.” Unfortunately, the exact purpose of the federal government’s 1969 position and policy was to erase those rights which they were well aware had never been addressed.

Some politicians were more responsive. Because of the court finding in the Nass Valley case, the former prime minister John Diefenbaker immediately addressed the government, asking that the question of Aboriginal rights be referred to a full bench of nine Supreme Court of Canada judges “as this question can be settled once and for all.” The Justice Minister, Otto Lang, said he would consider the suggestion.

The judges were very responsive. In the past fifty years, the Canadian judiciary has defined that title down.

The politicians did not refer the question, they constructed a policy even more dangerous than their 1969 White Paper. The Comprehensive Claims Policy, a process of extinguishing Aboriginal title and rights by agreement, emerged in 1974 and is still the government’s bottom line. It predetermines the result of every engagement with Indigenous Peoples where land and jurisdiction are concerned: gains in Canadian titles to land, financial settlement, and limited forms of municipal self-governance are paid for by release of Aboriginal rights and indemnification of the governments – and “anyone else” – for past harm.

The agreements are invariably negotiated under duress: under the conditions of poverty and desperation imposed by another unconstitutional action, the Indian Act of 1876. Also, still in effect.

“Extinguishment with consent” remains Canada’s policy and enthusiastic practice to date. It has been heavily criticized by international treaty bodies for at least twenty years.

Government policy has been mirrored by the Canadian judiciary. In case after case, they defined “Aboriginal title” into something quite different.

Judge made law

In every Indigenous action that followed Calder, government lawyers began their argument by quoting Justice Gould of the BC Supreme Court, who made the original ruling of dismissal against the Nisga’a in 1969. Lawyers for the crown all began their prosecution of Indigenous land-defenders and rights-exercisers, or their defense against being sued for land and rights, by saying: if there was ever any right or title to extinguish, then any Aboriginal rights or titles were extinguished by denial, declarations, or legislation of the Imperial or provincial crowns.

But, since 1973 and the epic realization that if the Nisga’a had title, so did every other Indigenous Nation west of the Rockies, by the same logic, the Canadian judiciary began to define that title out of reach and out of all meaning.

Ignoring the clearly and passionately iterated expressions of the meaning of Indigenous titles, offered over the last century-and-a-half by Indigenous Peoples themselves, judges dismiss essential elements of those as “absurd;” they sift out definitions of Aboriginal rights which are not too inconvenient for the state; and the politicians pass legislation to mechanize pacification of the piecemeal rights arising from the litigation.

Judges confirmed that Aboriginal rights are sui generis: Aboriginal rights and titles are just not like other peoples’ rights and titles, in Canadian Pacific Ltd. V. Paul, 1988. They made lists of requirements about what Indigenous Peoples have to prove in order to convince courts they have rights, like exclusive and continuing and exclusive occupation, in Baker Lake v. The Minister of Indian and Northern Affairs, 1980. That becomes quite hard to show, when communities were forcibly displaced and replaced by settlers.

In R. v. Adams, 1996, judges said Aboriginal title, being unlike other peoples’ titles, is actually a form of Aboriginal right. They defined what “the core of Indianness” means, in Dick v. The Queen, 1985.

They figured out that Aboriginal rights are only those activities which were in play in 1846, effectively freezing Aboriginal Peoples out of the right to develop and to have that development recognized as within their rights.

The judiciary then put themselves, and Canada, squarely in charge of elaborating on the constitution, where it concerns Indigenous Peoples, because that, Chief Justice Antonio Lamer explained in R. v. van der Peet, 1996, is what Section 35(1) is for. “Aboriginal rights are aimed at the reconciliation of the prior occupation of North America by distinctive aboriginal societies, with the assertion of Crown sovereignty over Canadian territory, by bridging aboriginal and non-aboriginal cultures.”

The reconciliation demanded by Section 35, apparently, is to be defined and determined by Canada unilaterally. And they don’t have to reconcile with Aboriginal cultures when they can justify infringing them.

After they decided Aboriginal rights remain behind 1846, judges subsequently ruled that any Aboriginal commercial activities should really be in line with 1846 revenues. Nuu-chah-nulth, 20011.

Shortly after Delgamuukw, 1997, and that first positive definition of Aboriginal title as something other than sui generis, or unknown, courts went into high gear. With Taku River Tlingit, Halfway River, Haida, and Douglas, courts instructed the government that the issue here was not so much about Aboriginal title as it was about accommodating that title by consulting with Aboriginal Peoples when there probably is title, and then sharing benefits from industries that extract revenue from those probably-title lands.

But Indigenous Peoples’ land titles are protected from just that kind of exploitation by Canada’s constitution. Judges have stepped in to “bridge” any inconsistencies.

In fact, Prime Minister Justin Trudeau recently explained that, “we will not be revisiting the Constitution.”

Canada and British Columbia have devoted tens of billions to its legal defense against the Indigenous title holders; its out-of-court negotiations, which were often coercive and always divisive for the Peoples; and its settlement awards for relinquishment of claims, which funds were always alarmingly small.

They have not, however, spent any money on positively identifying Indigenous title lands.

Widespread judicial refusal to respect international norms and treaties is exactly the criteria required for third parties, that is, other states, to bring Canada before the World Court. If they haven’t done so yet, maybe cheap Canadian exports of raw resources, subsidized by denial of Indigenous titles, is clouding their vision.

International attention

In 2009 and 2014, the Inter-American Court of Human Rights (IACHR) found two cases from British Columbia admissible on the basis that there is no domestic remedy to grievances between the Indigenous parties and the state of Canada. The Hulqiminum Treaty Group and the Lil’wat plaintiff in Edmonds were both found to have exhausted any chance of a fair hearing within Canada.

This is what happens when state policies preclude access to an impartial court, or when an entire state judiciary demonstrates a refusal to recognize rights defined in international treaties: international courts gain jurisdiction over the matter. What has not happened so far is Canadian participation in the IACHR proceeding. Both cases have stalled.

One of the first international Indigenous cases turns fifty next year. Sandra Lovelace, Maliseet from Tobique, took her case to the UN Human Rights Committee. They found that Canada was in breach of its obligations under the International Covenant on Civil and Political Rights, 1969, (ICCPR) in its use of the Indian Act to discriminate against Indigenous women. Lovelace’s case succeeded to the international arbiter because the Attorney General of Canada and the Department of Indian Affairs had just sued Jeanette Corbiere Lavell, to overturn a decision in her favour regarding the same issue – gender-based loss of Indian Status. The Supreme Court had found for the state: “The Canadian Bill of Rights does not affect the Crown’s legislative authority with regard to Indians.”

It can only be a question of other countries’ love for cheap timber, minerals, gas, and fish – subsidized by Canada’s political denial of Indigenous Peoples’ rights – that has stopped the land question from being prosecuted in a similar way to Lovelace. The same ICCPR states in Article 1:

International Covenant on Civil and Political Rights

1. All peoples have the right of self-determination.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Nuchatlaht 2023

In May of this year, BC Supreme Court Justice Myers ruled that the Nuchatlaht “may” have aboriginal title to some areas. His decision is regressive, almost contemptuous, and turned a valuable opportunity into a colossal waste of time and money. BC courts do not tend to find for Indigenous rights – the Supreme Court of Canada (SCC) does that. 

What’s more: the media didn’t even show up for it. A single report by the Canadian Press was picked up by BC outlets, who used stock photos of previous Nuchatlaht appearances to accompany the brief, mis-quoted, disturbingly disinterested article.

This case is the first Aboriginal title case to follow Tsilhqot’in, 2014, where, on appeal from BC to the SCC, Aboriginal title lands were declared, ruled upon, and drawn on a map for the first time. A great deal more attention to detail was deserved to this follow-up case.

One of the details is the fact that Indigenous Peoples are still paying a King’s ransom in time and money to plead for their rights, and that is in itself a travesty of justice.

The elected politicians have not pursued justice – they have fought it in their own courts for a century – and instead tighten their policies. The electorate continue to make Canada an acid environment for Indigenous individuals, families, businesses, communities. Logging, mining, fishing, and every kind of industrial development has continued on the disputed lands at a pace normally associated with plunder in times of war.

Fifty years from now

“If the Indians win, there will be a cloud on all the land titles issued by the province.” So said Duncan Campbell Scott, Minister of the Interior and Superintendent of Indian Affairs, as part of the 1926 Judicial Committee on the Claims of the Allied Tribes.

The question was not “if” the Indians win: the question was “when” the Indians win. And there certainly is a cloud on all the land titles issued by British Columbia. That’s why the Province of British Columbia has a line item for “treaty making” in its annual financial audits: everybody knows BC does not have title, even Standard and Poor’s, and BC’s creditors need to see that uncertainty mitigated.

In Hawaii, non-native homeowners buy Title Insurance. The Hawaiians have been making their way through the courts, proving their title to acre by acre, and banks won’t give out a mortgage for a property without it being insured against the inevitable claims of the rightful owner.

Check out the infographic and forthcoming infobook on Electromagnetic Print