How Frank Calder and the Nisga'a influenced modern treaties in Canada

Many First Nations across the country are warning that new infrastructure bills to fast-track build projects may be infringing on their rights — rights that received a huge boost more than 50 years ago, thanks to the pioneering efforts of a hereditary chief of the Nisga'a Nation in B.C.

Frank Calder led a case out of B.C.'s northwest coast that would result in the Supreme Court of Canada acknowledging Indigenous rights and title for the first time — and, in turn, contributed to modern treaties and Indigenous self-governing agreements across the country, as it opened the door for Indigenous people to negotiate land claims with the government.

Chiefs in B.C. are citing Calder, and other cases that affirmed Indigenous rights and title, at a time when many say they are worried their rights aren't being respected. 

In Ontario, nine First Nations have taken the province and Canada to court over Bill 5 and Bill C-5, which aim to fast-track projects, and chiefs in B.C. are also saying more court challenges are to come.

The bills come as Canada experiences economic uncertainty because of tariffs, and Indigenous people are concerned that the environment and their rights are taking a back seat.

With Indigenous people gearing up for court, previous rights and title cases are top of mind as Canada pushes for "shovels in the ground."

They cite the Calder case and their rights and title, but what does that mean?

Indigenous rights and title

The Constitution Act of 1982, Section 35, recognized and affirmed the existing Aboriginal and treaty rights of Indigenous people in Canada.

It defines "Aboriginal peoples of Canada" as Indian, Inuit, and Métis peoples. Treaty rights are defined in each negotiated treaty. 

But there is no definition of "Aboriginal rights and title" in the Constitution for Indigenous communities in Canada that didn't sign a treaty — and this led to debate, controversy and several court cases.

Many of the significant cases that aimed to define Aboriginal rights and title took place in B.C., paving the way for First Nations across the country to have a stronger position at negotiating tables.

One of the earliest is the Calder case, filed by the Nisga'a on B.C.'s northwest coast. 

The Government of Canada credits Calder for shifting the treaty negotiation process in the country to a rights-based approach.

The Calder case

Calder was a hereditary chief of the Nisga'a Nation and, alongside others, took B.C. to court in 1967 in an attempt to get his nation's land back and to have Nisga'a rights and title protected in the Nass Valley.

The Nisga'a pursued the case, arguing that its rights under the Royal Proclamation of 1763 had been violated because, like most Indigenous communities in B.C. at the time, they had never signed a treaty.  

The proclamation, still in place today, states that all land in Canada is considered Indigenous land until ceded by treaty, and further, that Aboriginal title existed before settlement, and only the Crown can purchase land from First Nations. 

The Calder case caused a split decision at the Supreme Court of Canada, with three judges voting in favour of the Nisga'a and three voting in favour of the province. Two of the court's judges recused themselves from the case.

The seventh judge dismissed the case on the technicality that First Nations needed permission from the government to sue the government, and the Nisga'a didn't have it.

Although the case was dismissed, for the first time in Canadian history, the Supreme Court judges who voted in favour of the Nisga'a acknowledged the existence of Aboriginal title.

First Nations from unceded territories now had a better hand at negotiating tables and started being invited to them.

'A whole different world': Nisga'a negotiator

The Calder case laid the groundwork for modern treaties in Canada. The very first — the James Bay and Northern Quebec Agreement — was signed two years later.

It took longer for the Nisga'a, who signed their treaty in 2000, after 113 years of negotiations.

Matthew Moore was on the negotiation team for 16 of those years and remembers how B.C. kept turning them away.

"Every time I went to the provincial government, I would get refused with the comment that you guys aren't Canadian citizens, you're wards of the federal government. You have to talk to the federal government," he said.

"It was really humiliating and frustrating to go through that." 

Following Calder, Moore says that Nisga'a members asked then-prime minister Pierre Trudeau if the government was open to negotiating a treaty, or if they wanted to go back to court.

"Our people got a response back that the federal government did not want to go back to the Supreme Court of Canada. They wanted to explore negotiations," said Moore. 

Canada and many First Nations call the period from the 1970s onward the modern treaty era.

Saskatchewan impact

Among those participating in the modern treaty process is a nation in Saskatchewan that wasn't allowed to sign a numbered treaty between 1871 and 1921.

Darcy Bear, chief of the Whitecap Dakota First Nation, told CBC News the Dakota territory spans from the United States to Canada, and negotiators from the government labelled Chief Whitecap and his people as "American Indians," and so, didn't allow him to sign. 

The Whitecap Dakota signed its self-government treaty with the Crown in 2023.

"The self-government treaty recognized Whitecap Dakota Nation members as Aboriginal peoples of Canada with section 35 rights, something they never did before," said Bear. 

Bear says that it was important for his people to be governed by their own Dakota laws, instead of being governed by the Indian Act — a policy still in place today, enacted in 1876 that changed Indigenous governing systems to the chief and council system.

Bear says that his community researched modern treaties and self-government agreements in B.C. and the United States before requesting a negotiation process with the Crown.

Yukon impact

Another area of Canada that was settled without a treaty is the Yukon.

Dave Joe, a member of the Champagne and Aishihik First Nations and the first native lawyer in the territory, says that before modern treaties, "it was a dark period in history" for First Nations people in Canada.

"It was a period of restrictions about whether or not we could own the land, whether or not we could pursue a land claim, whether or not we could pursue court action." 

He was involved in creating the Umbrella Final Agreement, the template used to negotiate all land claim settlements for Yukon First Nations. 

Joe says that the Calder case with the Nisga'a, the civil rights movement in the United States, and another rights and title case pursued by the Tlingit and Haida nations in Alaska, all inspired First Nations in the Yukon to pursue their land claims. 

"Those were the three sorts of backdrops to Yukon First Nations, saying that hey, we have a valid claim here as well." 

He says the Calder case was instrumental in validating that claim.

"And so [the Nisga'a] had a good case going forward. That recognition, I think, prompted Pierre Trudeau to accept our proposal to negotiate rather than proceeding with court action." 

The Calder case not only helped establish Indigenous rights in Canada, it has also been cited in cases around the world, including in Australia and New Zealand.