The Doctrine of Discovery is less of a problem than terra nullius

by reconciliationproject

There has been considerable activity in recent years surrounding the ‘Doctrine of Discovery’. The Doctrine of Discovery is a legal doctrine which prevents countries from engaging in relations with indigenous nations which are located within the territorial boundaries of other countries. The rationale of the Doctrine was that once a territory was ‘discovered’ by a European power, the European power acquired the exclusive right to deal with the indigenous populations of that territory in order to secure lands and resources, establish trade or any number of other activities (for example, missionary work).

The legal effect of the Doctrine of Discovery was simply to enjoin European powers from engaging in relations with indigenous peoples. The Doctrine had no direct legal impact on the rights of indigenous peoples. The practical effect of the Doctrine of Discovery; however, was to leave indigenous nations to the mercy of domestic law, and to deny indigenous nations equivalent standing to nation-states, which in many cases prevented indigenous nations from securing redress under international law.

What made the Doctrine of Discovery so devastating was the application of a related legal concept, the principle of terra nullius. Terra nullius is a legal theory, or more accurately a legal fiction (something which may not be true, but is assumed to be so in order to facilitate particular legal findings) which holds that ‘discovered’ lands were, or are, empty. As a result of this ‘emptiness’, European powers asserted a unilateral right to simply take territories and resources within their jurisdictions. To put it another way, the legal fiction of terra nullius allowed European powers to simply assume that the underlying title to the entire territory belonged to those powers, rather than to the indigenous nations actually living there.

In a territory subject to terra nullius, once that territory has been properly claimed by a European power (vis a vis other powers), it would be assumed to be ‘owned’ by the power. By default, all lands, territories and resources would be the patrimony of the colonizing power.

This is important because the fundamental point of an indigenous rights claim is that indigenous peoples controlled lands, territories and resources before being ‘discovered’ by a European power and that they were never legally dispossessed of those lands, territories and resources. In other words, an indigenous rights case is, at base, a challenge to the assertion by the state that it has complete control over the lands, territories and resources within its international boundaries.

It should be noted there are a variety of ways for states to legally acquire lands, territories and resources from indigenous nations, for example through conquest (which is generally not applicable in Canada) or through treaty. But where there is no treaty, there is a legitimate question as to the source of Canada’s rights to lands, territories and resources. Hence, the reconciliation between the simple fact that First Nations (or Metis or Inuit) not only occupied and possessed territories, but were organized in distinct societies, with the de fact (or factual, which is to say, not legal) assertion of sovereignty by the Crown over those same territories.

The fiction of terra nullius simply states that Canada could claim rights over all territories within its boundaries because those lands were treated as ‘empty’ upon ‘discovery’.

This fiction (or principle) was rejected by the International Court of Justice in its Western Sahara Advisory Opinion (http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=69&case=61&code=sa&p3=4). At paragraph 80, the ICJ stated,

80. Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as teirae nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through "occupation" of terra nullius by original title but through agreements concluded with local rulers. On occasion, it is true, the word "occupation" was used in a non-technical sense denoting simply acquisition of sovereignty; but that did not signify that the acquisition of sovereignty through such agreements with authorities of the country was regarded as an "occupation" of a "terra nullius” in the proper sense of these terms. On the contrary, such agreements with local rulers, whether or not considered as an actual "cession" of the territory, were regarded as derivative roots of title, and not original titles obtained by occupation of terrae nullius.

The ICJ clearly recognizes the importance of treaties, a very important point for First Nations and Inuit seeking greater recognition of their treaties. However, the ICJ also clearly notes that so long as a territory is “inhabited by tribes or peoples have a social or political organization”, simply occupying the territory is insufficient for a state to successfully assert sovereignty over that territory. I leave it to another day to consider whether this test accords closely with the current test for aboriginal title, as currently applied by Canadian courts (or more interesting, what to do about it if one thinks that it doesn’t).

For my part, I’m unsure whether placing the particular burdens of proof on aboriginal peoples to demonstrate occupation, possession and continuity, as well as how the Courts interpret those terms in the context of an aboriginal title claim, can plausibly fit within this test offered by the ICJ. The Western Sahara Opinion involved ‘nomadic tribes’, which means that the threshold for ‘inhabitation’ was quite low (it does not involved fixed settlements, for example)

Incidentally, Canadian courts have also rejected the fiction of terra nullius. Further, they have strongly discouraged First Nations and others from bringing claims based on the injustices created by this fiction. In a very clever, subtle and remarkably incorrect application of the doctrine, the Court in Van der Peet even noted that the foundation of aboriginal peoples’ claims to territory themselves are based on a claim on terra nullius (http://canlii.ca/t/1fr8r at para. 106). I doubt both the factual and legal accuracy of this statement, note that it has very little to do with the case at hand, and have a hard time understanding precisely why the Court felt compelled to issue this statement.

The Van der Peet court also assured aboriginal claimants that “The assertion of British sovereignty was thus expressly recognized as not depriving the aboriginal people of Canada of their pre‑existing rights; the maxim of terra nullius was not to govern here.” (at para 270).

In Marshall and Bernard, after noting again that Canadian courts reject the fiction of terra nullius, the Court states, “Aboriginal title reflects this fact of prior use and occupation of the land together with the relationship of aboriginal peoples to the land and the customary laws of ownership. This aboriginal interest in the land is a burden on the Crown’s underlying title.” (http://canlii.ca/t/1l5zg at para 134). Again, aboriginal title appears to reflect quite a bit more than ‘inhabitation’. More disturbing is the court notes that aboriginal title is a burden on the Crown’s underlying title (this is likely a call out to the St. Catherine’s Milling case). In other words, the Crown’s rights to the territory prevail and aboriginal title operates only as a ‘burden’ on that apparently ‘pre-existing’ title.

While there may be a very good explanation for the ‘aboriginal title as burden’ argument, I have yet to hear a coherent explanation for how this argument does not pre-suppose terra nullius. In other words, what, precisely is the basis of the Crown’s title (particularly vis a vis the rights of indigenous nations which were present upon ‘discovery’?)

All lands in Canada were clearly not held by European powers before Canada was ‘discovered’. Again, one is left to ask precisely how Canada ended up with apparently sovereign rights over all of this territory, particularly that territory not covered by treaty. But this isn’t the question asked in aboriginal law.

Aboriginal law demands that First Nations prove aboriginal title. The details of the test are less important than the fact it is highly likely that at least one claimant is likely to fail (indeed, a case now approaches the Supreme Court of Canada which may present the first award of aboriginal title in Canada). Does that mean that Canada was, for legal purposes, ‘empty’ upon discovery, or sovereignty?

Recent developments, particularly the British Columbia Court of Appeal judgment in William v. British Columbia (http://www.courts.gov.bc.ca/jdb-txt/CA/12/02/2012BCCA0285.htm), suggest that the principle of terra nullius is alive and well in Canadian aboriginal law. More on why I think that is the case in my next post.