of the tribe…The owners in this sense had certain rights of alienation. They could give up the tract of land, lose it in warfare, but in practice it would not go to anybody outside of the tribe, that is, a tract of Nishga land might change hands but it wouldn’t go to other than a Nishga family.
The Court: So am I correct in assuming that there are similarities in the Nishga civilization in the first two characteristics, but not the third? All that alienation means, of course, is that you can sell it to anybody you like?
Duff: Yes … The Court: I will give two more characteristics of ownership, the right to destroy it at your own whim, if you like, and the other, that the exclusive possession should be of indeterminable time, that is, cannot be terminated by a person’s life, that is, can be passed on to one’s heirs. That makes five. Now, you have dealt with three. Now the right to destroy at whim, set fire to your own house; these matters you have been dealing with, would a group within the Nishga have the right, if the buildings at the mouth of a certain river had been in their exclusive use some time and they will say, ‘Let’s set fire to it,’ would the tribe prohibit that?
Duff: I would think that they would have that right.
The Court: You would think they would have that right?
Duff: Yes.
The Court: Now, what about the duration of the right, not to destroy, but the right of exclusive ownership, would it go to their heirs?
Duff: Yes.
The Court: Or go back to the tribe for distribution?
Duff: In theory it belongs within that kinship group through time, with no duration in theory. It always remains with that same kinship group.
The Court: There is the matrilineal line?
Duff: Yes.25
The Supreme Court of British Columbia ruled that the Nishga were too “primitive” in the nineteenth century to have held concepts of property that could be considered on an evolutionary developmental par with the concept of property upheld by British law.
European colonial cultural beliefs, or ideologies, set up relationships between colonizer and colonized as a hierarchical set of binary oppositions in which one member of the pair is always symbolically superior to the other.26 Colonizers are rational, the colonized are irrational. Colonizers are guided by reason, the colonized are driven by instinct. Colonizers are industrious, the colonized are lazy. Colonizers are active agents, the colonized are passive objects.27 But binary oppositions are two-way streets: when colonizers describe the characteristics of the colonized, they are simultaneously describing themselves, through defining the differences between themselves and their “Other.” Each description of the other is at the same time a description of self.28 Interpreted from this perspective, Justice Gould’s ruling can be read as defining Euro-Canadian property law, and presumably the more highly evolved cultural values reflected in that law as: individually owning land, building fences around it and kicking your family off it, and burning down your house on a whim.
When the Nishga case was appealed, the Justices of the B.C. Court of Appeal declared that if any form of Aboriginal title had existed it had been explicitly extinguished by Britain’s assertion of sovereignty and “implicitly” extinguished by provincial land legislation prior to Confederation. The Nishga, on this basis, had no legal rights.
The Supreme Court of Canada, however, found differently when the case was appealed to them. In their 1973 decision, of the seven judges, one dismissed the case on a technicality and did not comment on the issues at trial. The remaining six found unanimously that Aboriginal title had existed prior to European arrival, based on long term occupancy. On the other important questions before them, the six judges split into two groups: Justices Ritchie and Martland supported the main judgment written by Justice Judson; while Justices Laskin and Spence supported the dissenting judgment written by Hall.29 Judson, Ritchie and Martland agreed with the Province of British Columbia’s argument that the Royal Proclamation of 1763 was not meant to apply to the then-undiscovered British Columbia. Relying on the St. Catherine’s Milling and Lumber Co. precedent, they found that Aboriginal title was a “mere burden” on Crown title. From Chief Justice Marshall’s ruling in Johnson v. McIntosh they drew the conclusion that the Crown had the exclusive right to extinguish Aboriginal title; and that whatever Aboriginal rights might have existed were lawfully extinguished by Britain’s declaration of sovereignty. Judson, however, differed with the Crown on the nature of Aboriginal title. In what was to become an oft-quoted statement, he wrote: “…the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a ‘personal or usufructuary right’.”30
On the other hand, Justice Hall, supported by Laskin and Spence, argued that the Royal Proclamation was meant to apply to British Columbia; that while the Crown did have the right to extinguish Aboriginal title it must state its intention to do so in “clear and plain language,” and it could not be concluded that “implicit” extinguishment had taken place by virtue of colonial authorities having simply ignored Aboriginal title. On the issue of the nature of Aboriginal title, Hall cited Lord Sumner’s decision in Re: Southern Rhodesia stressing the possibility that some Indigenous property systems were sufficiently well developed to be recognized by British law, and Lord Haldane’s caution in Amodu Tijani v. Secretary of Southern Nigeria, that non-British systems should be understood on their own terms and not only in relation to British law. Hall argued that, “to ascertain how far this latter development of right has progressed involves the study of the history of the particular community and its usages in each case. Abstract principles fashioned a priori are of but little assistance, and are as often as not misleading.”31 The Supreme Court of Canada appeal panel judges relied extensively on both the written historical record and the testimony of the expert witnesses, reserving their highest praise for the contribution of Wilson Duff. Hall wrote: “What emerges from the…evidence is the following: the Nishgas in fact are, and were from time immemorial a distinctive cultural entity with concepts of ownership indigenous to their culture and capable of articulation under the common law, having, in the words of Dr. Duff, ‘developed their culture to higher peaks in many respects than in any other part of the continent north of Mexico.’”
The Calder decision therefore marks a significant departure from the positivist theory of Aboriginal rights which gave legal standing only to rights recognized by a sovereign. The Supreme Court of Canada’s ruling in the Calder case was a victory for British Columbia First Nations and their supporters. Six Supreme Court of Canada judges agreed that Aboriginal title in fact existed, and three allowed that it may continue to exist.
Nevertheless, certain aspects of this landmark decision would haunt future Aboriginal land rights litigation in other parts of Canada. Justice Hall did not reject the test Lord Sumner set out in 1919 in Re: Southern Rhodesia, but affirmed it by using its criteria to distinguish the Nishga culture as qualifying for respect and recognition on the grounds of evolutionary theory. Hall’s reasoning allowed for the possibility that other Aboriginal peoples might fail Sumner’s and Haldane’s tests. While both rejected crude and archaic concepts and language, neither Duff’s anthropology, nor Hall’s law, rejected the philosophical or theoretical premises of “neo-evolutionary” theory that in 1973 remained current in academic anthropology and embedded in popular culture. Various iterations of neo-evolutionary theory have emerged throughout this century.32 Most recent versions eschew ethnocentric judgments, while still retaining beliefs in the determining role of the economy and technology in shaping culture. While rejecting the notion that all people progress through pre-determined “stages of development” from hunting and gathering to industrial capitalism,
