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Let’s begin with a little Latin. Terra nullius means land belonging to no one. That’s what the Europeans claimed the Americas were back when they “discovered” them.
A papal bull (really) invented something called the “Doctrine of Discovery” to validate the European claim over terra nullius. It said pagan souls don’t count as human; therefore their lands are uninhabited and can be discovered and claimed by Europeans.
All you have to do is make up some bull to say that other people aren’t human and you can take their land. Well, at least according to the laws of the people who made up the bull. Of course, they didn’t ask the non-people already living here about their own laws.
Fast forward 500 years and one finds, rather unsurprisingly, that the doctrines of discovery and terra nullius have been thoroughly discredited and disavowed at international law. They have been rejected firmly by the United Nations as a legal basis for the assertion of sovereignty. The UN Special Rapporteur for Indigenous Peoples called the doctrines “racist,” which is obvious from the definitions.
Australia’s highest court said the same thing. But the U.S. still relies on the doctrine, as does Canada, although Canada usually tries not to admit that’s what its doing.
The Supreme Court of Canada has approvingly cited the Australian rejection of the doctrine as fundamentally racist, and Indigenous rights and title are recognized in Canada’s constitution. However, Government of Canada lawyers keep using the doctrines of discovery and terra nullius in court and at negotiating tables.
And this is more important than it should be, but Tom Flanagan supports the doctrines. In his book, he says that European society was “civilized,” with real governments, unlike Indigenous peoples who were “uncivilized.” He does not assert that they had no souls, but he comes to the same conclusion regarding sovereignty based on European superiority. As the prime minister’s teacher, mentor, campaign manager, and guru of the far right in this country, his unsupportable opinions matter.
We need a little more Latin. There is a difference between something being true in law, de jure, and something being true in fact, de facto.
You will hear people sometimes suggest that Indigenous people were conquered. That is untrue both de facto, as there was no conquest in Canada, and de jure, as conquest doesn’t create a legally valid claim to land.
Where people get confused is that wars often lead to peace treaties and treaties do create law.
For example, exactly 250 years ago, the colony of New France was ceded in both land and governance to the British through the Treaty of Paris (1763). That made the sovereignty issue clear between those parties (even if it remains an issue for many in Quebec), but it does not affect the pre-existing Indigenous rights in that territory.
Subsequent to the Treaty of Paris, George III issued the Royal Proclamation of 1763, which does speak to Indigenous sovereignty. And as the Proclamation is now part of the Constitution of Canada Act, 1982, it is valid domestic law.
Also important to note is that none of the treaties signed with First Nations extinguishes the sovereign right to self-governance.
The 18th century Peace and Friendship treaties were non-aggression pacts, granting no exclusive rights to land and no rights of governance over Indigenous peoples to the Europeans.
The pre and post-confederation treaties discuss land, but do not confer subjugation to colonial governance.
And parts of Canada have no treaty at all — Newfoundland and Labrador, the majority of British Columbia, portions of Quebec, the Algonquin in Ontario and the Lubicon in Alberta — are some of the most significant areas untreated.
In the end, there is no de jure doctrine at international law by which Canada can assert sovereignty over Indigenous peoples.
As the continued existence of the Indian Act shows, there remains conflict in domestic law, although it is almost exclusively politically rather than legally driven now, and constitutional law has supremacy.
The clarity of international law on the topic, the acceptance by Canada of the United Nations Declaration on the Rights of Indigenous Peoples, the primacy of constitutional documents such as the Royal Proclamation and the treaties, and Canadian court decisions point in only one direction.
What we have is de facto governance exercised over a long period of time by Canada, which has the force of customary law. And we have de facto governance by First Nations exercised over an even longer period that also has the power of customary law.
How is the situation to be resolved?
We could continue to battle it out in court for several more generations, or First Nations could declare secession and fight out the terms thereof, or Canada and Indigenous peoples could both benefit by establishing constructive terms of cooperation.
When people talk about nation-to-nation dialogue, they are talking about cooperation between sovereign entities to the mutual benefit of both, as the treaties were intended to function.
Last week, the New Democrats and Liberals endorsed this approach, as did the Assembly of First Nations and most Indigenous leadership.
It is time the Harper Conservatives — completely isolated in their insistence on a moribund worldview — adopt the only path to harmonious relations in respect of basic human rights, for the benefit of all citizens.