Calder et Al v Attorney-General of British Columbia,

• Judge: Hall,Pigeon J,Hall J,Judson J,Spence,Laskin JJ
• Court: Supreme Court (Canada)
• Date: 31 January 1973

Canada, Supreme Court.

(Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.)

Calder et al.

and

Attorney-General of British Columbia

STATE TERRITORY

State territory — In general — Nature of territorial sovereignty — Acquisition of territorial sovereignty — Conquest and annexation — Loss of territorial sovereignty — Title — Mode of acquiring title and territorial sovereignty — Legislation — Effect and evidentiary value of — Whether Proclamation and Ordinances of foreign State enough to extinguish title — Aboriginal title of Indians in Canada — Whether and how extinguished by Crown — Use of maps in territorial disputes — Jurisdiction of Canadian courts to declare claim of title against Crown — The law of Canada

States as international persons — In general — Sovereignty and independence — In foreign relations — Doctrine of act of State — Whether applicable in case of claim of aboriginal title — The law of Canada

Summary: The facts:—The British Crown established the Colony of Vancouver Island in 1849 and the Colony of British Columbia in 1858. The Nishga Indian tribe was an aboriginal Indian tribe occupying some territory in the region of British Columbia before 1858. In 1858 the Nishga territory became part of the Colony of British Columbia. Between 1858 and 1871 diverse legislative measures by Proclamations and Ordinances were introduced on behalf of the British Crown in respect of the whole of the Colony of British Columbia including the Nishga territory. A Proclamation of 14 February 1859 declared, inter alia, that all lands in British Columbia belonged to the Crown in fee. In 1866 the two colonies were united under the name of British Columbia which entered the Confederation of Canada in 1871 and became the Province of British Columbia in the Dominion of Canada. The plaintiffs sued as representatives of the Nishga Indian tribe for a declaration that their aboriginal title by occupation had never been lawfully extinguished. They appealed from a judgment dismissing the action.

The Court of Appeal of British Columbia held that the legislative measures and the facts showed an intention to exercise, and the actual exercise of, absolute sovereignty by the Crown over all the lands in the colony, including the Nishga territory, which was inconsistent with any other interest. If the aboriginal title ever existed it was thus extinguished. The plaintiffs appealed to the Supreme Court.

Held:—The declaration sought by the plaintiffs should not be granted.

(1) Whatever property right might have existed in right of the Nishga tribe, it had been extinguished by properly constituted authorities in the exercise of their sovereign powers. The Proclamations and Ordinances revealed an intention to exercise, and the legislative exercise of, absolute sovereignty over all the lands of British Columbia and such exercise of sovereignty was inconsistent with any conflicting interests, including one as to “aboriginal title”.

(2) In the absence of a fiat of the Lieutenant-Governor of the Province of British Columbia the Court had no jurisdiction to declare a claim of title against the Crown in right of the Province of British Columbia.

Per Hall, Spence and Laskin JJ., dissenting in part: The Court of Appeal had erred in accepting the proposition that, after a conquest or discovery, the plaintiffs' predecessors had no rights at all except those subsequently granted or recognized by the conqueror or discoverer. There was an aboriginal Indian interest, usufructuary in nature, which was a burden on the title of the Crown and was inalienable except to the Crown and extinguishable only by a legislative enactment of the Parliament of Canada. This aboriginal title did not depend on a treaty, executive order or legislative enactment but flowed from the fact that the owners of the interest had from time immemorial occupied the areas in question and had established a pre-existing right of possession. In the absence of an indication that the Sovereign intended to extinguish that right the aboriginal title continued. There was no surrender by the Nishgas and neither the Colony of British Columbia, nor the Province, after Confederation, nor the Parliament of Canada, had enacted legislation specifically purporting to extinguish the Indian title. It had to be presumed that the British Crown intended to respect the native rights and the onus of proving that the Sovereign intended to extinguish the Indian title was on the defendant.

The following is the text of the judgments delivered in the Supreme Court:

Martland. J., concurrs with Judson, J.

Judson, J.:—The appellants sue, as representatives of the Nishga Indian Tribe, for a declaration ‘that the aboriginal title, otherwise known as the Indian title, of the Plaintiffs … has never been lawfully extinguished’. The action was dismissed at trial. The Court of Appeal rejected the appeal. The appellants appeal from both decisions.

The appellants are members of the Nishga Nation, which is made up of four bands: Gitlakdami, Canyon City, Greenville and Kincolith. They are officers of the Nishga Tribal Council and councillors of each of the four Indian bands. They are descendants of the Indians who have inhabited since time immemorial the territory in question, where they have hunted, fished and roamed. It was agreed for purposes of this litigation that this territory consisted of 1,000 square miles in and around the Nass River Valley, Observatory Inlet, Portland Inlet and the Portland Canal, all located in north-western British Columbia. No other interest has intervened in this litigation to question the accuracy of this agreed statement of facts.

The Crown in right of the Province has made certain grants in this territory, some in fee simple; in other cases rights of pre-emption, mineral and mining rights, petroleum permits, forestry rights and titles, and tree farm licences. However, the vast bulk of the area remains still unalienated.

No treaty or contract with the Crown or the Hudson's Bay Company has ever been entered into with respect to the area by anyone on behalf of the Nishga Nation. Within the area there are a number of reserves but they comprise only a small part of the total land. The Nishga Nation did not agree to or accept the creation of these reserves. The Nishgas claim that their title arises out of aboriginal occupation; that recognition of such a title is a concept well embedded in English law; that it is not dependent on treaty, executive order or legislative enactment. In the alternative they say that if executive or legislative recognition ever was needed, it is to be found in the Royal Proclamation of 1763, in Imperial statutes acknowledging that what is now British Columbia was ‘Indian Territory’, and in Royal instructions to the Governor of British Columbia. Finally, they say that their title has never been extinguished.

All these claims, at one point or another, were rejected in the judgments under appeal.

In the agreed statement of facts, the mode of life of the Indians is set out in rather bald terms. This description is amplified in the material filed at the hearing. I refer to the Indian History of British Columbia, chapter 8, by Wilson Duff, published in 1964:

It is not correct to say that the Indians did not ‘own’ the land but only roamed over the face of it and ‘used’ it. The patterns of ownership and utilization which they imposed upon the lands and waters were different from those recognized by our system of law, but were nonetheless clearly defined and mutually respected. Even if they didn't subdivide and cultivate the land, they did recognize ownership of plots used for villate sites, fishing places, berry and root patches, and similar purposes. Even if they didn't subject the forests to wholesale logging, they did establish ownership of tracts used for hunting, trapping, and food-gathering. Even if they didn't sink mine shafts into the mountains, they did own peaks and valleys for mountain goat hunting and as sources of raw materials. Except for barren and inaccessible areas which are not utilized even today, every Part of the Province was formerly within the owned and recognized territory of one or other of the Indian tribes.

The Nishga answer to Government assertions of absolute ownership of the land within their boundaries was made as early as 1888 before the first Royal Commission to visit the Nass Valley. Their spokesman said:

David Mackay—What we don't like about the Government is their saying this: ‘We will give you this much land.’ How can they give it when it is our own? We cannot understand it. They have never bought it from us or our forefathers. They have never fought and conquered our people and taken the land in that way, and yet they say now that they will give us so much land—our own land. These chiefs do not talk foolishly, they know the land is their own; our forefathers for generations and generations past had their land here all around us; chiefs have had their own hunting grounds, their salmon streams, and places where they got their berries; it has always been so. It is not only during the last four or five years that we have seen the land; we have always seen and owned it; it is no new thing, it has been ours for generations. If we had only seen it for twenty years and claimed it as our own, it would have been foolish, but it has been ours for thousands of years. If any strange person came here and saw the land for twenty years and claimed it, he would be foolish. We have always got our living from the land; we are not like white people who live in towns and have their stores and other business, getting their living in that way, but we have always depended on the land for our food and clothes; we get our salmon, berries, and furs from the land.

Any Canadian inquiry into the nature of the Indian title must begin with R. v. St. Catharines Milling & Lumber Co. v. The QueenUNKUNKELR (1885), 10 O.R. 196; affd (1886), 13 O.A.R...