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by the Honourable Bob Rae

Some of the reactions to the Supreme Court’s decision in the Tsilhqot'in First Nation case, which requires pipeline projects and similar developments to seek aboriginal approval, are so over the top they cannot go without comment.

Nearly forty years ago a case from the Nisga'a community known as Calder made a similar long journey through the courts, and it was there that the Supreme Court (long before the Charter) held that the arguments from both Ottawa and British Columbia that no aboriginal title or claims survived the arrival of European settlement was wrong.

The invasion and occupation of the Americas had been seen by imperial powers as a conquest of empty land, whose borders and boundaries were decided by any number of treaties and agreements signed in Europe. In the sixteenth century there was even a theological argument in the Valladolid debate about whether aboriginals were human. The doctrine of "terra nullius" was often invoked to assert the legal fiction that these lands belonged to "no one" before they were "discovered" by white people from Europe.

The Calder decision rightly blew those doctrines out of the water, and urged governments, First Nations, and other aboriginal peoples to sort out their relationships on the basis of equality and respect. Since that time, in a variety of ways, governments have made an effort to do this, but it has been slow, halting, begrudging, and only rarely successful.

The Supreme Court’s BC land-title decision? It’s more important than you think - The Globe and Mail

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