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The Calder Case | A Split Decision

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In November 1971, chiefs of the four Nisga'a villages in the Nass River valley, together with village elders, travelled to Ottawa for the hearing of their case in the Supreme Court of Canada. For five days, seven judges heard the argument of the appeal, then reserved their decision for 14 months.

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.

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The Sparrow Decision | Aboriginal Rights Affirmed
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In 1990, the Supreme Court of Canada ruled, in a landmark decision, that First Nations have an aboriginal right as defined in the Constitution to fish for food, social and ceremonial purposes and that this right takes priority over all others except conservation.

This famous case, known as Regina v. Sparrow, started when Ronald Sparrow, a Musqueam, was charged with contravening federal regulations while fishing in the lower Fraser River with a driftnet longer than permitted.

Sparrow appealed his conviction based on the argument that the restriction on the net length was invalid because it was consistent with Section 35 of the Constitution Act, 1982"the section that recognizes and affirms existing aboriginal and treaty rights.

The Sparrow case was the first in which the Supreme Court of Canada was called onto interpret what Section 35 actually means. In overturning Sparrow's conviction, the court ruled that the Constitution Act provides "a strong measure of protection for aboriginal rights. Any proposed regulations that infringe on the exercise of those rights must be justified. The court ruled that:

1. Aboriginal and treaty rights are capable of evolving over time and must be interpreted in a generous and liberal manner;
2. Governments must regulate existing aboriginal rights only for a compelling and substantial objective such as the conservation and management of the resource; and
3. After conservation goals are met, aboriginal people must be given priority to fish for food, social and ceremonial purposes.

In the Sparrow decision the Supreme Court of Canada thus re-affirmed the principle that aboriginal rights contained in the Canadian Constitution must be given a generous and liberal interpretation.

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Delgamuukw | Title Exists
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On December 11, 1997 the Supreme Court of Canada handed down its Delgamuukw Decision. This historic judgment is simply the latest to confirm that negotiations "not lawsuits" are the best way to settle aboriginal land claims in this country.

While the Nisga'a have always been committed to negotiations, this latest Supreme Court Decision strengthens Nisga'a resolve to ratify a Treaty that will benefit everyone and bring the Nisga'a people into Canada.

The full text of Delgamuukw may be found on the Internet at:

http://kafka.uvic.ca/~vipirg/SISIS/Clark/97delrul.html

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