What was the Calder case of 1973?

The Calder case (Calder v. British Columbia (Attorney General)) was a 1973 Supreme Court of Canada decision that for the first time recognised the existence of Aboriginal title at common law independently of treaty or statute. The decision was delivered on January 31, 1973. Though the Court split 3 to 3 on whether Nisga'a title still existed in British Columbia (with one judge ruling on procedural grounds and not addressing the title question), the decision transformed Canadian Indigenous-Crown legal relations and led directly to the federal Comprehensive Land Claims Policy of 1973.

The case was brought by Frank Calder (1915 to 2006, the President of the Nisga'a Tribal Council and BC's first Indigenous MLA) and the Nisga'a Tribal Council on behalf of the Nisga'a Nation, asserting that the Nisga'a still held Aboriginal title to about 1,000 square miles of land in the Nass River valley of northwestern British Columbia. The British Columbia courts had rejected the claim, ruling that any Aboriginal title that might have existed had been extinguished by general British Columbia colonial legislation. The Nisga'a appealed to the Supreme Court of Canada.

The Supreme Court delivered three sets of reasons. Justices Wilfred Judson, Roland Ritchie, and Bora Laskin ruled that Aboriginal title had existed at the time of European contact but had been extinguished by general British Columbia colonial legislation. Justices Emmett Hall, Gerald Spence, and Wishart Spence wrote separate concurring reasons holding that Aboriginal title at common law had existed and had not been extinguished by general legislation (only by clear and specific extinguishment). Justice Louis-Philippe Pigeon wrote the deciding reasons ruling that the Nisga'a's case was procedurally invalid because they had not obtained a fiat from the Lieutenant Governor under provincial Crown procedure rules. The procedural ruling decided the case against the Nisga'a but left the title question undecided.

The Calder decision's transformative effect came from the substantive reasoning. Six of the seven justices had agreed that Aboriginal title at common law was a genuine legal concept, distinct from treaty or statutory rights. Hall's reasons in particular emphasised that Aboriginal title flowed from Indigenous peoples' occupation of the land before European settlement. The federal government responded with the August 8, 1973 Comprehensive Land Claims Policy (replacing the previous policy of refusing to negotiate Aboriginal title claims) and began negotiations with the Nisga'a (which eventually produced the Nisga'a Final Agreement of May 11, 2000) and other nations. Subsequent Supreme Court decisions including Guerin (1984), Sparrow (1990), Delgamuukw (1997), Haida Nation (2004), and Tsilhqot'in (2014) elaborated the Aboriginal title doctrine. Frank Calder served as a BC NDP Cabinet minister (Minister of Highways and Public Works, 1972 to 1973) and remained a leading Nisga'a leader until his death in 2006. The Calder case is now regarded as the most consequential Aboriginal title decision before Delgamuukw.