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Historic Calder Decision Marks 35 Years

by NationTalk on February 22, 20082124 Views

NEW AIYANSH, BC, Feb. 21 – On January 31, 1973, the Supreme Court of Canada delivered the landmark “Calder Decision” that established, for the first time, that Aboriginal title exists in modern Canadian law. The decision not only opened up the possibility of a new future for British Columbia’s First Nations, it reverberated across Canada and around the world. In the multi-generational effort to settle the Nisga’a “Land Question,” the Nisga’a Nation brought its claim to the British Columbia Supreme Court in the Calder Case, named for Nisga’a Chief Frank Calder, who died in 2006 at the age of 91. The Nisga’a Nation, represented by Thomas Berger, sought a declaration that the Aboriginal title of the Nisga’a Nation had never been lawfully extinguished. After rejection by the British Columbia Supreme Court and the Court of Appeal, the case was ultimately argued before the Supreme Court of Canada. While all six Justices who ruled on the question agreed that Aboriginal title exists in Canadian law regardless of any grant or act of recognition by the Crown, they were equally divided on the question of whether the Nisga’a Nation’s Aboriginal title had been extinguished.

It is generally agreed that the first significant outcome of the Calder Case was to place responsibility for dealing with the land question back to the political sphere. The effect was to move the issue of Aboriginal rights and title onto the national agenda. In response to the decision, Prime Minister Pierre Elliot Trudeau – who had long maintained that it was impossible to right historic wrongs – famously changed his mind and said “perhaps you have more rights than we thought you did.”

The Calder Decision not only opened the possibility of a new future for British Columbia’s First Nations – it set precedent across Canada and around the world. Prior to this decision, there was no process for negotiating land claim agreements in Canada. The Calder Decision resulted in 40% of Canada’s landmass becoming negotiable and Canada launching a land claim policy to guide negotiations. It provided the legal foundation on which the B.C. treaty process started after 113 years of opposition by provincial and colonial authorities, and led to the landmark Nisga’a Final Agreement – British Columbia’s first modern treaty.

“The Calder Decision was an historic decision for all Aboriginal people,” says Nelson Leeson, President of Nisga’a Lisims Government. “This 35th anniversary is an opportunity to remember how far we’ve come, and a chance to focus on the challenges ahead. Recognition and settlement of land claims are critical steps on the road to self-reliance but our partners in the provincial and federal governments must now focus on the proper implementation of these agreements. This is an area in which we still have a long way to go if we are going to be able to achieve our shared goals. In particular, as has been noted by the federal Auditor General, the government of Canada needs to change its approach to fulfilling its obligations and achieving mutual objectives if these historic agreements are to truly succeed.”

For further information: Les Clayton, Director of Communications & Intergovernmental Affairs, Nisga’a Lisims Government, 1-866-633-0888 or (250) 633-3007

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