May 15, 2017

Case Brief: Calder et al. v. Attorney-General of British Columbia, [1973] SCR 313

Calder et al. v. Attorney-General of British Columbia, [1973] SCR 313

Facts: Appeal concerns the source of Aboriginal Title (AT). Claim for AT arose out of Aboriginal occupation since time immemorial that is not dependent on treaty, executive order or legislative enactment. The Aboriginal claimants never surrendered the land by treaty or contract or purchase and were never conquered, in other words their AT had never been lawfully extinguished.

Issue: Whether any AT the Indians possess as occupants of the land from time immemorial has been extinguished.

Holding: Appeal dismissed.

Majority Opinion Reasoning:

Per Judson J. for Martland & Ritchie JJ. (p. 317-345): AT is not borne from Aboriginal occupation because the nature of AT, as found by US Courts and the earlier Judicial Committee of the Privy Council, is that of a burden on the underlying Crown title, the tenure of which is a personal and usufructuary right dependent on the good will of the Sovereign. Non-recognition of AT by sovereign authorities amounts to a denial of AT, while the Crown is free to assume its own title over the same area. The exercise of Crown sovereignty to the same area is inconsistent with AT. Also, the Aboriginal claimants are not entitled to compensation in the absence of a statutory direction to pay.

Per Pigeon J. (p. 422-427): The Aboriginal claimants required a fiat to be obtained on a petition of right as a condition for jurisdiction in order to challenge the Crown’s title. The Court could not order a declaration against the Crown on the basis of AT as it lacks jurisdiction to do so in the absence of a fiat. The claim is barred on this basis and the Crown’s immunity from suit is preserved.

Rule: The Source of Aboriginal Title

According to Judson J., the Royal Proclamation (RP) is the source of AT if the land is within the geographical limits of the RP, however outside the scope of the RP, AT is dependent on the good will of the sovereign.


A colonial government operating outside the RP in pre-Confederation times was free to deny AT, even if it was not done expressly, while assuming its own title to the same territory. In the impugned area, a series of nine proclamations and four ordinances, which did not involve the Indians directly and were not a treaty, but having the force of law, enabled the sovereign authority to grant title to itself. The result of these proclamations and ordinances is that they reveal a unity of intention to exercise sovereignty (rather than the extinguishment of AT) over the land, which is inconsistent with AT. In post-Confederation times, in order to resolve the “Indian problem”, AT was lawfully extinguished when sovereign authorities chose to set apart reserves for the Indians in various parts of the impugned territory and open up the land for settlement. These reserves were made under the federal authority in s. 91(24) of the BNA Act, 1867 on behalf of the Indians and according to reserve policy, which had the effect of extinguishing AT, even though the Indians did not ask for these reserves.

Dissenting Opinion(s) Reasoning:

Per Hall J. for Spence & Laskin JJ. (p. 345-422): The dissent represents the majority of this decision.The assessment and interpretation of historical documents and enactments must be approached in light of present-day research and knowledge. Old viewpoints of AT are ill-founded on racial prejudice. It is clear that the federal authority did not take steps to extinguish AT after Confederation. It is also clear that possession is of itself at common law proof of ownership, and although notions of ownership differed between the Indians and settlers, it was still ownership nonetheless. For example, treaties are the Crown acknowledging the Indian’s ownership. AT is a pre-existing right of possession and a valid claim to continued use. Once AT is established, it is presumed to continue unless it is extinguished. The onus of proving the sovereign intended to extinguish AT lies on the Crown and that intention must be “clear and plain”. There was no such proof in this case and no legislation to that effect. Also, a fiat is not necessary in this case because a proceeding seeking declaratory relief is not the kind of action within the rule requiring a petition of right to assert a declaratory remedy against the Crown. We would allow the appeal with costs throughout and declare AT to the lands.