Mr. Justice Wilfred Judson, speaking for three judges, found that the Nisga'a, before the coming of the white man, had aboriginal title, a title recognized under English law. But, he went on to say, this title had been implicitly extinguished by pre-Confederation enactments of the old colony of British Columbia. On the other hand, Mr. Justice Emmett Hall, speaking for three judges, found that Nisga'a aboriginal title had never been lawfully extinguished, and that this title could be asserted even today.

On this reckoning, the court was tied. The seventh judge dismissed the case on a technicality but did not address the question of aboriginal title. What was significant for aboriginal rights was that all of the six judges who had addressed the main question supported the view that English law, in force in British Columbia when colonization began, had recognized Indian title to the land.

Mr. Justice Judson, in describing the nature of Indian title, concluded: "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. 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."

Mr. Justice Hall, who with two of his colleagues, upheld the Nisga'a claim, urged that the Court should adopt a contemporary view and not be bound by past and mistaken notions about Indians and Indian culture. He said:

"What emerges from the ... evidence is that the Nishgas [common spelling at the time] in fact are and were from time immemorial a distinctive cultural entity with concepts of ownership indigenous to their culture and capable of articulation under the common law, having 'developed their cultures to higher peaks in many respects than in any other part of the continent north of Mexico.' " He held that the Nisga'a title could be asserted today. No matter that the province would be faced with innumerable legal tangles.

The Supreme Court's judgement, although it was not handed down until February 1973, came at a propitious moment. The election of 1972 had returned the Liberals to power, but as a minority government. To remain in office, the Liberals depended on the goodwill of the opposition parties. So the question of aboriginal title was catapulted into the political arena.

In Parliament, both the Conservatives and the New Democrats insisted that the federal government must recognize its obligation to settle native claims. The all-party Standing Committee on Indian and Northern Affairs passed a motion that approved the principle that a settlement of native claims should be made in regions where treaties had not already extinguished aboriginal title. On August 8, 1973, Jean Chretien, then Minister of Indian Affairs, announced that the federal government intended to settle the claims, beginning a process that continues to this day.

Today, the Nisga'a are set sign a formal Treaty - the first in modern B.C. history.