egal assertion of Indigenous land rights was initiated by the Nisga'a Nation in Calder et al. v. Attorney-General of British Columbia, [1973] SCR 313. For the first time, the Supreme Court of Canada decided that Aboriginal title is a legal right to land that does not depend on the Royal Proclamation of 1763 (Period 4 above). However, the Court split evenly on whether Aboriginal title had been legislatively extinguished in British Columbia before the province joined Canada in 1871.
The Calder decision caused the federal government to reassess the policy of refusing to recognize Indigenous land rights that it had generally followed since the late 1920s. Soon after that court decision, the federal government created a 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. It also set up a specific claims process to deal with past violations of treaty rights, unlawful taking of reserve lands and other matters. In 2008, this process was revised by the creation of the Specific Claims Tribunal, an adjudicative body.
In another Aboriginal title case, Hamlet of Baker Lake v. Canada (Indian Affairs and Northern Development), [1980] 1 FC 518, the Baker Lake Inuit claimed title to their traditional lands, which were then in the Northwest Territories and are now in Nunavut. Justice Mahoney issued a declaration in their favour, but limited their title to a right to hunt and fish. He also described that right as non-proprietary and subjected it to mining rights granted by the federal government under the Canada Mining Regulations. His characterization of Aboriginal title is inconsistent with the more recent Supreme Court decisions in Delgamuukw v. British Columbia (1997) and Tsilhqot'in Nation v. British Columbia, [2014] 2 SCR 256. Also, his decision that the Inuit title is subject to federal mining laws pre-dated inclusion of section 35 in the Constitution Act, 1982 (discussed in the next paragraph); thereafter, an infringement of this sort would require proof of justification by the Crown (Delgamuukw; Tsilhqot'in Nation).
In the late 1970s, patriation of the Canadian Constitution and inclusion of the Charter of Rights and Freedoms came to dominate the political agenda. Indigenous Peoples were concerned that this process would compromise their nation-to-nation relations with the British Crown and undermine their inherent sovereignty and treaty rights. In November 1980, two chartered trains, dubbed the Constitutional Express, carried close to 1,000 Indigenous protesters from the West Coast to Ottawa, where they peacefully lobbied hard for constitutional recognition of Aboriginal and treaty rights. Indigenous leaders also went to London and began an unsuccessful attempt in the English courts to block patriation. These efforts contributed to the inclusion of section 35 in the Constitution Act, 1982, subsection (1) of which provides: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." Subsection (2) defines the Aboriginal peoples of Canada as including the "Indian, Inuit and Métis peoples." Explicit inclusion of the Métis was a significant victory for the Métis, as their rights had been consistently ignored in the past (see Period 5, above).
Section 35 is a landmark acknowledgement of the rights of the Indigenous Peoples. It has largely determined the political and legal discourse on Aboriginal and treaty rights since 1982.