Calder v. British Columbia (Attorney General)

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.

Aftermath

With this decision the government of Canada overhauled much of the land claim negotiation process with aboriginal peoples. The 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

External links

• full text of Supreme Court decision from canlii.org
• case summary