Terra Nullius Part 2

by reconciliationproject

Terra nullius 2

The last post was on terra nullius generally, this one takes a closer look at the relationship between terra nullius and aboriginal title. My point is that the fiction of terra nullius is alive and well in Canadian jurisprudence and that claimants should be demonstrating this to courts, as well as offering options Courts to slowly (or quickly) extricate this fiction from Canadian law.

My last post provided several statements from the Supreme Court of Canada that the fiction of terra nullius does not inform Canadian aboriginal law. This is technically true, to the extent that the Supreme Court of Canada does not explicitly use the fiction of terra nullius to justify its decisions.

So long as the basis (or bases) for aboriginal law remains obfuscated and unexposed, true and meaningful reconciliation will escape Canada. The reason is that there will remain fundamental differences between aboriginal rights-holders and Canada; unspoken fundamental differences which will not receive critical reflection, nor will be the subject of dialogue.

In the last post, I superficially explained the legal doctrine (or as I call it, the legal fiction) of terra nullius, as well as the fact that the concept has been widely discredited, both in international law and in domestic aboriginal law. The next post will be an examination of the British Columbia Court of Appeal decision in William v. British Columbia, with a particular emphasis on why I think the fiction of terra nullius is alive and well in Canadian aboriginal law.

Before examining William, it might be helpful to offer some perspective on what an aboriginal title case is all about. Aboriginal title is not sourced in the Royal Proclamation, nor the Indian Act (obviously, I would hope) and not even in the Constitution Act, 1982 because the latter merely “recognizes and affirms” aboriginal title under Canadian law.

When Canada was settled, the rights of indigenous peoples did not receive recognition or affirmation in colonial courts. This does not mean those rights did not exist, nor does it mean those rights could not find application in colonial or British courts. In fact, there are several examples of British and colonial courts recognizing indigenous rights and applying the laws of indigenous nations, in recognition of the jurisdiction indigenous nations exerted within territories unsettled by colonial powers. That could be the subject of its own post, or even a book (and books have been written on this topic).

Aboriginal title rights have existed throughout Canada’s history, there simply haven’t been legal instruments to provide application for those rights in Canadian (or British or French) courts. As stated at paragraph 42 of the Taku River judgment (http://canlii.ca/t/1j4tr), s. 35 of the Constitution Act, 1982 provides a contemporary legal vehicle to translate or ‘reconcile’ “prior Aboriginal occupation with de facto Crown sovereignty.” What an interesting statement. First, note the express recognition from the Court that Canada was occupied prior to the Crown’s claim to sovereignty. This is a pretty clear reference to terra nullius and suggests one of the reasons for s. 35 is to ameliorate the past effects of the fiction.

The second point is the use of the term “de facto” in reference to the Crown’s claim to sovereignty. The term “de facto” means “in fact”, to be contrasted with “de jure”, which means in law. This phrase is suggesting that the Crown’s claim to sovereignty should not be considered a claim based in law until the rights of aboriginal peoples to their lands, territories and resources are dealt with (I presume through treaty).

The Court does not purport that the Constitution is the source of aboriginal rights because those rights already exist. This is a key point, and to the extent it is true, the fiction of terra nullius finds no application in Canada. The reason is that so long as aboriginal title is recognized and given effect by the Canadian legal order, then one cannot argue that the land was treated as empty when Canada established sovereignty over its claimed territory.

This brings me back to modern aboriginal title cases. For reasons which are entirely unclear to me, in an aboriginal title case, the burden rests on the claimant to “prove” title. This is curious because Canada is the party which is attempting to convert its de facto territorial sovereignty into de jure sovereignty.

To put it another way, aboriginal title is a pre-existing right which operates outside Canadian law, but is valid under some other form of law (say, that of the aboriginal claimant. I’d be willing to bet someone like Russell Barsh has written extensively on using a jurisdictional approach to resolve claims). Due to the discredited fiction of terra nullius, Canada (or BC) is unable to provide a legitimate juridical reason to solidify its own rights over the territory. Hence, statements like, “Let us face it, we are all here to stay.” That quote comprises the last words of the majority’s reasons in the Delgamuukw case (http://canlii.ca/t/1fqz8 at para. 186). Delgamuukw, interestingly, was an aboriginal title case in which the claimants were not awarded title.

The problem with forcing aboriginal claimants to prove title is that when they fail, that territory is effectively claimed by Canada as terra nullius. The reason is that when a claimant fails to ‘prove’ aboriginal title, Canada will not recognize their rights to the territory and the territory will then be governed (or ‘owned’ if you prefer) by Canada (federally or provincially). This means that Canadian courts will have effectively facilitated an acquisition of territory by terra nullius because the basis for Canada’s claim to the territory is that no aboriginal claimant could ‘prove’ title.

A nifty trick, given that terra nullius itself is alleged to find no application under Canadian law. My next post will be an examination of William v. British Columbia, with some thoughts on how the fiction of terra nullius was applied in the judgment of the Court of Appeal.