Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights.
Contains Photos, Maps, Bibliography, Index
David Mardiros is a lawyer and anthropological consultant in Kars,
It has now been more than 35 years since the Supreme Court of Canada took its first tentative steps to recognizing the concept of Aboriginal title in Canadian law. The contributions in this book, taken from the proceedings of a conference held to commemorate the decision of Calder et al v. Attorney General of British Columbia, set out the legal and historical context of this important case and offer some ideas of where it may take us. The authors include one of the original plaintiffs in the case, their legal counsel, a former Supreme Court judge who at the time Calder was decided was a Department of Justice lawyer, and many noted academics from Canada, Australia, and New Zealand. The book provides a well-rounded view of the importance of this seminal case from several vantage points and the perspective of three decades.
While the book shows us how slowly changes occur (and how litigation on Aboriginal rights can, at times, appear interminable) it also reminds us of how far we have really come. Indeed, it is often forgotten that when the original decision in Calder came down in 1973, it was seen as a defeat for the Nisga’a plaintiffs (by a vote of four to three). The force of the decision (and most notably the reasons of the late Mr. Justice Emmett Hall) only started to become evident when Pierre Trudeau famously reversed his negative views on the existence of Aboriginal rights and title as a result of the court’s decision. It was much later, after Trudeau’s decision to initiate a comprehensive process toward the negotiation and settlement of Aboriginal claims, that the full import and impact of the case began to be felt. The reasons of the Supreme Court in Calder are now some of the seminal judicial statements on Aboriginal rights and title in much of the common-law world.
The last part of the book focuses on the future of Aboriginal rights and title in Canada. While not ignoring the deep divide that exists between aboriginal and non-aboriginal cultures and legal traditions in this country, the tone of these latter contributions is hopeful. Indeed, John Borrows, a senior Aboriginal scholar, sees Canadian law as deriving its authority from appeals to consensus, reason, and constancy. If his optimism proves correct, perhaps the next 30 years will bring us even further than we have come since 1973.