Recognition of the territorial rights of Canada's 'First Nations' had been based on the Royal Proclamation of 1763 and on numerous treaties which covered much, but not all of Canada. There was almost no treaty coverage of the Province of British Columbia, on the west coast. Accordingly, any recognition of 'aboriginal title' there needed to depend on common law principles, aided by early nineteenth century decisions of the Supreme Court of the United States. The USA had, like Canada and Australia, inherited the common law of England.
The Nishga'a Indian people of British Columbia had gone to the courts of British Columbia , but without success. In the Gove Land Rights Case, decided soon after, Justice Blackburn had relied heavily on that decision, known as Calder v Attorney-General (British Columbia).
But the Nishga'a took the provincial court decision on appeal to the Supreme Court of Canada which, in 1973, held that 'aboriginal title' was entitled to recognition independently of any treaty. (Some of the judges took the opportunity to comment that some of Justice Blackburn's propositions of law in the Gove Land Rights Case were 'wholly wrong'. More broadly, the Court held that 'aboriginal title' continued to exist in a settled colony.
In Canada the effect of this recognition was to lead to a further round of treaty-making in much of northern Canada. One treaty, endorsed by Canada's Prime Minister on 11 November 1998, was a treaty finally negotiated in British Columbia with the Nishga'a. Prime Minister Chretien was quoted as saying: 'I believe in it personally and it is an obligation of the government and it is a constitutional obligation ... that the King of England gave us in 1763. We're a bit late to implement it, don't you think?'
Keywords: Blackburn, Justice, British Columbia, Calder v Attorney-General, 1973 , Canada, Common Law, First Nations Canada, Gove Case, International Court Case, Nisga'a, Royal Proclamation of 1763, Supreme Court USA, 1763-1988
Author: Nettheim, Garth