egal assertion of Aboriginal land rights was initiated by the Nisga’a Nation in Calder v. Attorney-General of British Columbia, decided by the Supreme Court of Canada in 1973. For the first time, the Court decided that Aboriginal title is a legal right to land that does not depend on the Royal Proclamation of 1763. However, the Court split evenly on whether Aboriginal title had been legislatively extinguished in British Columbia prior to the province joining Canada in 1871.
The Calder decision caused the federal government to reassess the policy of refusing to recognize Aboriginal land rights that it had generally followed since the late 1920s. Soon after that court decision it created the comprehensive land claims policy to deal with Aboriginal title claims, and participated in the James Bay and Northern Quebec Agreement (1975), the first modern-day treaty to be negotiated. It also set up a specific claims process to deal with past violations of treaty rights, unlawful taking of reserve lands, and other matters.
When patriation of the Canadian Constitution and inclusion of the Charter of Rights and Freedoms came to dominate the political agenda in the late 1970s, Aboriginal leaders lobbied for constitutional recognition of Aboriginal and treaty rights. This was accomplished by the inclusion of section 35(1) in the Constitution Act, 1982, which reads: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Section 35(2) defines the Aboriginal peoples of Canada as including the “Indian, Inuit and Métis peoples”.
Section 35 is a landmark in acknowledgement of the rights of the Aboriginal peoples. It has largely determined the political and legal discourse on Aboriginal rights since 1982.