The Calder case (1973) reviewed the existence of “aboriginal title” claimed over lands historically occupied by the Nisga’a Aboriginal peoples of northwestern BC. The Supreme Court of Canada by a majority recognized that aboriginal title could exist in common law, but split 3-3 on its validity, with half of the Court declaring that the right was never extinguished by statute or treaty, which is what the Nisga’a had argued. The other half of the Court found that aboriginal title did not exist with respect to the Nisga’a land as it had been extinguished prior to BC joining Confederation. Justice Pigeon tipped the balance against the Nisga’a on a procedural point – that permission to sue the BC government had not been obtained from the attorney general. Chief CALDER lost his case, but the aboriginal title question was not settled, and the decision led to federal willingness to negotiate Aboriginal land claims.
The Delgamuukw case (1997) concerned the definition, the content and the extent of aboriginal title. The Supreme Court observed that aboriginal title constituted an ancestral right protected by Section 35(1) of the CONSTITUTION ACT, 1982. Aboriginal title is a right relating to land sui generis, held communally and distinct from other ancestral rights. Aboriginal title is, therefore, in substance, a right to territory and encompasses exclusive use and occupation. The native people concerned must tender evidence of the existence of aboriginal title in respect of the following requirements: “(i) they must have occupied the territory before the declaration of sovereignty; (ii) if present occupation is invoked as evidence of occupation before sovereignty, there must be a continuity between present occupation and occupation before the declaration of sovereignty; (iii) at the time of declaration of sovereignty, this occupation must have been exclusive.” It is not necessary to prove a perfect continuity; the demonstration of a substantial maintenance of the bond between the people concerned and the territory is sufficient. In this respect the Supreme Court held that oral evidence could be admitted as proof. The court also ruled that aboriginal lands could not be used in a manner that was inconsistent with aboriginal title: if aboriginals wished to use the lands in ways that aboriginal title did not permit, then the lands must be surrendered. Aboriginal title cannot be transferred to anyone other than the Crown.
Section 35 of the Constitution Act, 1982, enshrines the rights of aboriginal peoples. In the Sparrow case (1990), an aboriginal person fished contrary to the provisions of federal law. In his defence he alleged that the right to fish was an immemorial right protected by treaty by virtue of section 35. The Supreme Court upheld the right and set out a code of interpretation for section 35. The Court established 5 criteria: (1)the word “existing” in section 35 referred to rights which existed on 17 April, 1982; (2) the intention of the legislature to extinguish a law must be clear and express; (3) a right guaranteed may be limited, for the rights recognized and affirmed are not absolute; (4) the federal government has a fiduciary role in relation to aboriginal peoples, and finally; (5) section 35 must be interpreted liberally; does a law or regulation undermine an existing right? Is the provision justified? Does it have a valid purpose? Does it detract as little as possible from an existing right? The Sparrow case is to section 35(1) of the Constitution Act, 1982