Calder v British Columbia (Attorney General)

Calder was the first SCC decision to recognise that Aboriginal title is a legal right in Canadian common law, independent of the Royal Proclamation of 1763 or any statute. Six judges agreed title once existed; they split 3-3 on whether it had been extinguished, with the deciding vote on procedural grounds.

The Nisga'a Nation sought a declaration that Aboriginal title to the Nass Valley in BC had never been lawfully extinguished.

(1) Does Aboriginal title exist in Canadian common law? (2) Has it been extinguished?

Yes — title exists. Court split 3-3 on extinguishment; the seventh judge dismissed on procedural (fiat) grounds.

Aboriginal title is a legal right deriving from indigenous occupation and use of land prior to European assertion of sovereignty. It is recognised by Canadian common law independent of the Royal Proclamation of 1763 or treaty. Whether and how it has been extinguished is a separate question.

Hall J (with Spence and Laskin JJ) held that title was a recognised common-law right that had not been extinguished. Judson J (with Martland and Ritchie JJ) agreed title once existed but held it had been extinguished by general land legislation. Pigeon J dismissed for want of a fiat from the Crown.

Catalysed modern Canadian Aboriginal-title doctrine. Led directly to the federal Comprehensive Land Claims Policy and decades of treaty negotiation, including the 2000 Nisga'a Final Agreement. Foundation on which Sparrow, Delgamuukw and Tsilhqot'in build.

Calder v British Columbia (Attorney General), [1973] SCR 313, 1973 CanLII 4 (SCC).

Martland J, Judson J, Ritchie J, Hall J, Spence J, Pigeon J, Laskin J