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CBC
6 days ago
- Politics
- CBC
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 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. As Indigenous people gear up for court, previous rights and title cases are top of mind as Canada pushes for "shovels in the ground." With Indigenous people citing the Calder case, and their rights and title, what does that mean? Indigenous rights and title In a 1982 amendment to the Constitution, 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 has 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 better hand 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. The court's two other 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 that the Calder case initiated the modern treaty era in Canada. "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." And even as the Calder case was influential in Canada, according to the University of British Columbia, it has also been referenced in Australia and New Zealand.
Yahoo
6 days ago
- Politics
- Yahoo
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 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. As Indigenous people gear up for court, previous rights and title cases are top of mind as Canada pushes for "shovels in the ground." With Indigenous people citing the Calder case, and their rights and title, what does that mean? Indigenous rights and title In a 1982 amendment to the Constitution, 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 has 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 better hand 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. The court's two other 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 that the Calder case initiated the modern treaty era in Canada. "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." And even as the Calder case was influential in Canada, according to the University of British Columbia, it has also been referenced in Australia and New Zealand.
Yahoo
23-07-2025
- Business
- Yahoo
Report raises questions about First Nations ownership in major projects
OTTAWA — A new think tank report is questioning how the federal and provincial governments' sprint to build major infrastructure projects might affect Indigenous Peoples' rights — and warns that it could end up pitting Indigenous communities against each other. The report by the Yellowhead Institute, "Buried Burdens," takes a look at major projects through a case study of the Prince Rupert Gas Transmission Project and the Ksi Lisims facility in B.C., which are expected to transport millions of tonnes of gas per year. Owned in part by the Nisga'a Nation, the project has seen staunch opposition from other First Nations communities that did not approve or consent to it. The Yellowhead report, released this week, comes amid a countrywide push to rapidly launch major projects, including pipelines, to shore up the economy against U.S. President Donald Trump's trade war. The recently passed One Canadian Economy Act gives Ottawa the power to fast-track projects it deems to be in the national interest by sidestepping environmental protections and other legislation. Governments have been encouraging First Nations leaders to support such projects through loan guarantees and promises of financial incentives. But many First Nations leaders fear their ways of life could be irreparably harmed if governments evade environmental standards. "Right now, the narrative is full speed ahead on resource development," said Hayden King, a member of Beausoliel First Nation who serves as Yellowhead's executive director. "Increasingly, that includes Indigenous partners, but there's not a lot of discussion on the dynamics of investing in projects like these, and there's a risk that has to be considered … "First Nations are not necessarily the ones merely impacted by these developments, but they're being encouraged to invest in these projects, to be partners in these projects and grant social licence to enable these projects." Some provinces have enacted laws similar to the One Canadian Economy Act, including Bill 5 in Ontario, now the subject of a court challenge by nine First Nations. And in B.C., Premier David Eby's government passed Bills 14 and 15 — pieces of legislation meant to ramp up energy and infrastructure development that have come under fire from First Nations. Prime Minister Mark Carney has frequently pointed to Indigenous participation in major projects as a means to ensure their success and prevent delays. He has pointed to the $10 billion Indigenous Loan Guarantee Program as proof of Ottawa's commitment to ensuring Indigenous communities have a meaningful stake. The report challenges that argument altogether, calling it an "industry-driven narrative." "While there are potential benefits from participating in equity ownership when compared to shorter-term impact benefit agreements and service contracts, there are also greater risks," the report says. "This particular philosophy of 'economic reconciliation' imagines Indigenous communities regaining control of their economies, aiming for self-sufficiency, sustainability, and self-determination. This is an industry-driven narrative that presents resource extraction as the singular pathway to achieve these ends." That narrative, the report says, could also cause rifts between Indigenous communities that support specific projects and those that do not. "While uncomfortable, conflict and disagreement are part of Nation-to-Nation relationships — and always have been. However, it is equally important to recognize that in true Nation-to-Nation relationships, the self-determining rights of one Nation cannot supersede the inherent rights of another," the report says. King said potential conflicts between pro-development communities and those more hesitant lends itself to conversations about the kinds of development that align with their values. But that conversation is also about rights, King said, and how courts will strike a balance among First Nations who don't see eye-to-eye on project proposals. "Let's not have the courts decide the answers to those questions, but let's actually work through diplomacy and figure those out on our own terms, using our own Indigenous law," he said. King said that discussion should "feed back into the conversation about what kind of economy … we want," pointing to the pre-contact economies that once sustained Indigenous Peoples. "We had these economies, and still do to a degree. So what would it look like to reimagine those, and rearticulate them in the face of the narrative that we only have one option, which is resource development?" he said. This report by The Canadian Press was first published July 23, 2025. Alessia Passafiume, The Canadian Press Error in retrieving data Sign in to access your portfolio Error in retrieving data Error in retrieving data Error in retrieving data Error in retrieving data
CTV News
23-07-2025
- Business
- CTV News
Report raises questions about First Nations ownership in major projects
People rally against Bill C-5 on Parliament Hill in Ottawa on Tuesday, June 17, 2025. THE CANADIAN PRESS/Justin Tang OTTAWA — A new think tank report is questioning how the federal and provincial governments' sprint to build major infrastructure projects might affect Indigenous Peoples' rights — and warns that it could end up pitting Indigenous communities against each other. The report by the Yellowhead Institute, 'Buried Burdens,' takes a look at major projects through a case study of the Prince Rupert Gas Transmission Project and the Ksi Lisims facility in B.C., which are expected to transport millions of tonnes of gas per year. Owned in part by the Nisga'a Nation, the project has seen staunch opposition from other First Nations communities that did not approve or consent to it. The Yellowhead report, released this week, comes amid a countrywide push to rapidly launch major projects, including pipelines, to shore up the economy against U.S. President Donald Trump's trade war. The recently passed One Canadian Economy Act gives Ottawa the power to fast-track projects it deems to be in the national interest by sidestepping environmental protections and other legislation. Governments have been encouraging First Nations leaders to support such projects through loan guarantees and promises of financial incentives. But many First Nations leaders fear their ways of life could be irreparably harmed if governments evade environmental standards. 'Right now, the narrative is full speed ahead on resource development,' said Hayden King, a member of Beausoliel First Nation who serves as Yellowhead's executive director. 'Increasingly, that includes Indigenous partners, but there's not a lot of discussion on the dynamics of investing in projects like these, and there's a risk that has to be considered … 'First Nations are not necessarily the ones merely impacted by these developments, but they're being encouraged to invest in these projects, to be partners in these projects and grant social licence to enable these projects.' Some provinces have enacted laws similar to the One Canadian Economy Act, including Bill 5 in Ontario, now the subject of a court challenge by nine First Nations. And in B.C., Premier David Eby's government passed Bills 14 and 15 — pieces of legislation meant to ramp up energy and infrastructure development that have come under fire from First Nations. Prime Minister Mark Carney has frequently pointed to Indigenous participation in major projects as a means to ensure their success and prevent delays. He has pointed to the $10 billion Indigenous Loan Guarantee Program as proof of Ottawa's commitment to ensuring Indigenous communities have a meaningful stake. The report challenges that argument altogether, calling it an 'industry-driven narrative.' 'While there are potential benefits from participating in equity ownership when compared to shorter-term impact benefit agreements and service contracts, there are also greater risks,' the report says. 'This particular philosophy of 'economic reconciliation' imagines Indigenous communities regaining control of their economies, aiming for self-sufficiency, sustainability, and self-determination. This is an industry-driven narrative that presents resource extraction as the singular pathway to achieve these ends.' That narrative, the report says, could also cause rifts between Indigenous communities that support specific projects and those that do not. 'While uncomfortable, conflict and disagreement are part of Nation-to-Nation relationships — and always have been. However, it is equally important to recognize that in true Nation-to-Nation relationships, the self-determining rights of one Nation cannot supersede the inherent rights of another,' the report says. King said potential conflicts between pro-development communities and those more hesitant lends itself to conversations about the kinds of development that align with their values. But that conversation is also about rights, King said, and how courts will strike a balance among First Nations who don't see eye-to-eye on project proposals. 'Let's not have the courts decide the answers to those questions, but let's actually work through diplomacy and figure those out on our own terms, using our own Indigenous law,' he said. King said that discussion should 'feed back into the conversation about what kind of economy … we want,' pointing to the pre-contact economies that once sustained Indigenous Peoples. 'We had these economies, and still do to a degree. So what would it look like to reimagine those, and rearticulate them in the face of the narrative that we only have one option, which is resource development?' he said. This report by The Canadian Press was first published July 23, 2025. Alessia Passafiume, The Canadian Press
