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From Terra Nullius to Affirmation: Reconciling Aboriginal Rights with the Canadian Constitution1

Published online by Cambridge University Press:  18 July 2014

Michael Asch
Michael Asch
Affiliation:
Department of Anthropology and Indigenous Governance Program, University of Victoria, Victoria (B.C.)CanadaV8P 5C2, [email protected]
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Abstract

The Canadian state presents itself as tolerant, anti-colonial and self-critical. Yet, the legal justification for the Crown's acquisition of sovereignty and jurisdiction concerning Indigenous peoples and their lands, relies on the colonial era doctrine of terra nullius which is based on the proposition that Indigenous peoples were sufficiently inferior to enable the Crown to presume that their territories were unoccupied. This paper discusses how the doctrine of terra nullius becomes applied in Canadian law and its limitations as an acceptable proposition at this time in history. It then discusses and evaluates alternatives to that doctrine which have been proposed in various quarters in order to determine the possibilities for the conceptualization and establishment of a political and legal relationship between First Nations and Canada that is post-colonial in its approach and practice.

Résumé

L'État canadien se présente comme tolérant, anti-colonial et auto-critique. Cependant, la justification légale de la Couronne pour acquérir souveraineté et juridiction sur les Peuples autochtones et leurs terres s'appuie sur la doctrine coloniale de la terra nullius qui est fondée sur le postulat que les peuples indigènes étaient inférieurs au point de permettre à la Couronne de présumer que leurs terres étaient inoccupées. L'article analyse comment la doctrine de la terra nullius a fini par s'appliquer en droit canadien et ses limites en tant que proposition acceptable dans la contemporanéité. Dans un second temps, il évalue des alternatives proposées dans des milieux variés pour déterminer si la conceptualisation et la mise en œuvre d'une relation politique et légale entre les Premières nations et le Canada qui serait post-coloniale dans sa perspective et pratique, est possible.

Type
Aboriginally and Normativity/Autochtonie et normativités
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 17 , Issue 2 , August 2002 , pp. 23 - 39
Copyright
Copyright © Canadian Law and Society Association 2002

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References

2 I am using sovereignty in the sense that it is used when describing the sovereignty enjoyed by states as that is commonly understood.

3 This is not a view generally shared by Indigenous peoples. For example, Antonia Mills points out: “To the Gitksan and Witsuwit'en, [in British Columbia] it was, and is, not apparent that the federal government has ever clearly established a right to their land”. Mills, A., Eagle Down Is Our Law (Vancouver: University of British Columbia Press, 1997) at 5.Google Scholar

4 Slattery, B., The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown's Acquisition of the Territory (PhD dissertation, University of Oxford 1979) [unpublished].Google Scholar

5 Asch, M. & Macklem, P., “Aboriginal rights and Canadian sovereignty: An essay on R. v. Sparrow” (1991) 29–2 Alberta L. Rev. 498Google Scholar; Asch, M., “Aboriginal Self-Government and the Construction of Canadian Constitutional Identity” (1992) 30:2Alberta L. Rev. (Constitution Series) 465Google Scholar; Asch, M., “Errors in the Delgamuukw: An Anthropological Perspective” in Cassidy, F., ed., Aboriginal Title in British Columbia: Delgamuukw vs. The Queen (Vancouver and Montreal: Oolichan Books and the Institute for Research on Public Policy, 1992)Google Scholar [hereinafter “Errors in the Delgamuukw”]; Asch, M. & Bell, C., “Definition and Interpretation of Fact in Canadian Aboriginal Title Litigation: An Analysis of Delgamuukw” (1994) 19:2Queen's L. J. 503.Google Scholar

6 For discussions by other scholars who have reached similar conclusions, see Mackiem, P., Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001) at 95Google Scholar [hereinafter Indigenous Difference]; McNeil, K., Emerging Justice? Essays on Indigenous Rights in Canada and Australia (Native Law Centre, University of Saskatchewan, 2001) at 121–23Google Scholar [hereinafter Emerging Justice?]; and Russell, P., Constitutional Odyssey, Can Canadians Become a Sovereign People? (Toronto: University of Toronto Press, 1993) at 132.Google Scholar

7 Calvin's Case (1608), 7 Co Rep 1a, 2 State Tr 559.

8 Mabo v. Queensland (1992), 107 A.L.R. 1 (Aust. H.C.)

9 In Re: Southern Rhodesia (1919) AC 210 (PC) at 233.

10 “Errors in Delgamuukw”, supra note 5.

11 Calder v. British Columbia (A. G.) (1970), 74 W.W.R. 481 (BCCA).

12 Calder v. British Columbia (A.G.) (1973), 34 D.L.R. (3rd) 145; [1973] S.C.R. 313.

13 Ibid. at 156.

14 Ibid. at 169–70.

15 Asch, M. & Bell, C., “Challenging Assumptions: The Impact of Precedent in Aboriginal rights Litigation” in Asch, M., ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver: University of British Columbia Press, 1997) 38Google Scholar [hereinafter “Challenging Assumptions”].

16 M. Asch, “Errors in Delgamuukw”, supra note 5 at 221.

17 Asch, M., “From Calder to Van der Peet: Aboriginal Rights and Canadian Law, 1973–96” in Havemann, P., ed., Indigenous Peoples' Rights in Australia, Canuda, and New Zealand (Melbourne: Oxford U niversity Press, 1999) 428Google Scholar [hereinafter “From Calder to Van der Peet”].

18 Hamlet of Baker Lake v. Minister of Indian Affairs (1979), 107 D.L.R. (3d) 513 (F.C.). This decision was at the trial division of the Federal Court. It was not appealed.

19 Ibid. at 557.

20 Ibid.

21 Delgamuukw v. British Columbia (1991), 79 D.L.R (4th) (B.C.S.C.) 185 at 419; affirmed (1993), 104 D.L.R. (4th) (B.C.C.A.) 470; appeal allowed in part [1997] 3 S.C.R. (S.C.C.) 1010

22 Delgamuukw v. British Columbia (1991), 79 D.L.R (4th) (B.C.S.C.) 185 at 441.

23 A special issue of BC Studies (No.95, 1992) was devoted to excoriating McEachern's reasons for judgment in Delgamuukw.

24 R. v. Sparrow, [1990] 70 D.L.R. (4th) 385 at 398.

25 Ibid. at 404.

26 Asch and Macklem, supra note 5.

27 R. v. Van der Peet, [1996] 2 S.C.R. 507

28 Ibid. at 534.

29 Ibid. [emphasis theirs].

30 Ibid. at 548.

31 P. Macklem comes to a similar conclusion in a recent book: “[i]nternational law regarded North America as vacant because it viewed Aboriginal nations to be inferior to European nations”, and “[g]iven its inherent ethnocentrism, the proposition of Aboriginal inferiority cannot stand as a valid reason for excluding Aboriginal nations from the distribution of sovereignty on the continent” (Indigenous Difference, supra note 6 at 121).

32 Milirrpum v. Nabalco Pty. & Commonwealth of Australia (1971), FLR 141 (SCNT).

33 Mabo v. Queensland (1992), 107 A.L.R. 1 (Aust. H.C.) at 27 cited in Spaulding, R., “Are Aboriginal Rights Discriminatory?” (Master of Laws Thesis, Queen's University 1995) [unpublished] at 16.Google Scholar

34 Ibid.

35 Mabo, supra note 33 at 82; Spalding, supra note 33 at 221.

36 United Nations, General Assembly, Declaration on the Granting of Independence to Colonial Countries and Peoples (New York: United Nations, 1961)Google Scholar cited in Asch, M., Home and Native Land: Aboriginal Rights and the Canadian Constitution (Toronto: Methuen Publishers, 1984) at 130Google Scholar [hereinafter Home and Native Land].

37 Western Sahara: Advisory Opinion [1975] International Court of Justice Reports 12 at 14.

38 Ibid. at 39.

39 Ibid.

40 Home and Native Land, supra note 36.

41 This position is echoed by Kent McNeil: “No Canadian court has yet come up with a convincing explanation of what happened to Aboriginal sovereignty, or how that sovereignty can be denied in light of the Indian treaties which Canada continued to sign after Confederation” (Emerging Justice, supra note 6 at 101).

42 Quoted with respect to Treaty 11 in Fumoleau, R., As Long as This Land Shall Last: A History of Treaty 8 and Treaty 11, 1870–1939 (Toronto: McClelland & Stewart, 1975) at 166.Google Scholar

43 Treaty 7 Elders and Tribal Council, The True Spirit and Original Intent of Treaty 7 (Montreal: McGill-Queen's University Press, 1996)Google Scholar; Price, R., ed., The Spirit of the Alberta Indian Treaties (Montreal: Institute for Research on Public Policy and Indian Association of Alberta, 1980).Google Scholar

44 Asch, fieldnotes, 1969–70.

45 The person responsible for the initial Treaty payment would be the Treaty Commissioner.

46 Smith, S., Dene Treaties, Anthropology and Colonial Relations (PhD Dissertation, University of Alberta 1979) [unpublished] at 80.Google Scholar

47 Fumuleau, supra note 42.

48 Aasen, W., “Report on Treaty 8 in British Columbia” prepared for the Royal Commission on Aboriginal Peoples by the B.C. Treaty 8 Tribal Council [unpublished, 1993]Google Scholar; Lamothe, R., “‘It Was Only a Treaty’: Treaty 11 According to the Dene of the Mackenzie Valley” prepared for the Deh Cho Tribal Council, the Dene Nation and the Royal Commission on Aboriginal Peoples [unpublished, 1993]Google Scholar; and Smith, S., “The Treaty Relationship: Dene and Treaty 11” prepared for the Royal Commission on Aboriginal Peoples by the Deh Cho Tribal Council [unpublished, 1993].Google Scholar

49 There are many examples of the view, on the part of Indigenous peoples, that treaties did not extinguish sovereignty and were, in fact, intended to develop political relations. Some of these are: Williams, P., “Kayanerenh Teskenonhweronne: Relations Between the Haudenosaunee and the Crown, 1664–1993” prepared for the Royal Commission on Aboriginal Peoples [unpublished, 1993]Google Scholar and Wicken, B., “An Overview of the 18th Century Treaties Signed Between the Mi'kmaq and Wuastuwiuk Peoples and the English Crown, 1725–1928” report submitted to the Royal Commission on Aboriginal Peoples [unpublished, 1993].Google Scholar

50 “Challenging Assumptions,” supra note 15.

51 Re: Southern Rhodesia, supra note 9.

52 Slattery, B., “Aboriginal Sovereignty and Imperial Claims” (1991) 29 Osgoode Hall L. J. 681.Google Scholar Slattery develops an analogous argument which he bases on the presumption of a “Principle of Territoriality” which suggests that “every human society whose members draw the essentials of life from territories in their possession … has a right to these territories as against other societies and individuals.” He later (ibid. at 701) uses this principle to assert that the lands in Canada and the United States could not have been “legally vacant territories” prior to colonization and hence that a terra nullius thesis is inapplicable. While I accept that the Principle of Territoriality may be useful in certain circumstances, I believe that the principle that human societies always contain institutions and values reconcilable to the concepts of sovereignty and underlying title, as constituent elements of their nature, is a firmer basis upon which to rest the rights discussed here.

53 Asch, M. & Zlotkin, N., “Affirming Aboriginal Title: A New Basis for Comprehensive Claims Negotiations” in Asch, M., ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver: University of British Columbia Press, 1997)Google Scholar [hereinafter “Affirming Aboriginal title”].

54 “From Calder to Van der Peet” supra note 17.

55 Among these, an attempt to resolve the relationship in a manner that promotes justice as Canada has seen it in the context of other colonial situations ranks highly in my mind.

56 “Affirming Aboriginal title”, supra note 53.

57 Royal Commission on Aboriginal Peoples, “Partners in Confederation” (Ottawa: Minister of Supply and Services, 1993)Google Scholar [hereinafter “Partners in Confederation”].

58 The RCAP argument is taken up in some detail by Judge Binnie of the Supreme Court of Canada in some obiter remarks in the recent case of Mitchell v. M.N.R.I, [2001] 1 S.C.R. 9, where he describes with approval the American concept of “residual” aboriginal sovereignty. In Emerging Justice, Kent McNeil proposes a similar approach, which acknowledges “the limited territorial sovereignty of the Aboriginal peoples as nations within Canada”, supra note 6 at 95.

59 “Partners in Confederation”, supra note 57 at 699, fn 18.

60 P. Macklem also advocates a “distribution” of sovereignty among three levels of government (Indigenous Difference, supra note 6 at 123). However, there is a question as to the strength of the powers of the Aboriginal vis-à-vis those of the Provincial and Federal levels which are explicitly recognized in the constitution. While the specifics have, of course, yet to be resolved, the approach taken does seem to point to an American style resolution to the issue whereby the Aboriginal sovereign exists but is, in an ultimate sense, subordinate to the Congress, – or in the Canadian case the Parliament and, perhaps, the legislatures. The difference would be that, because Aboriginal rights are constitutionalized in Canada, passage of laws that interfered with them would undergo a specific process not required by normal legislation.

61 One vision of the future is articulated by Alfred, G. in Heeding the Voices of Our Ancestors (Toronto: University of Toronto Press, 1995) at 103Google Scholar where he says “Mohawks see the consideration of self-government arrangements as part of the inevitable process of divesting themselves from colonized status and regaining the status of an independent sovereign nation.”

62 Royal Commission on Aboriginal Peoples, Transcripts of the Public Meetings of the Royal Commission on Aboriginal Peoples, The Pas, Manitoba (20 May, 1992) at 252.

63 Venne, S., “Understanding Treaty 6: An Indigenous Perspective” in Asch, M., ed., Aboriginal and Treaty rights in Canada: Essays in Law, Equity and Respect for Difference (Vancouver: University of British Columbia Press, 1997) 184.Google Scholar

64 Home and Native Land, supra note 36 at 105

65 Bear, Leroy Little, “Aboriginal Rights and the Canadian ‘Grundnorm’” in Ponting, J.R., ed., Arduous Journey: Canadian Indians and Decolonization (Toronto: McClelland and Stewart, 1986) 246.Google Scholar

66 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

67 R. v. Marshall, [1997] 3 S.C.R. 456.

68 Chamberlin, J.E., “Culture and Anarchy in Indian Country” in Asch, M., ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (Vancouver: University of British Columbia Press, 1997) 3.Google Scholar