7 Colonial Underpinnings of the Legal System

Colonialism refers to a situation where one state or group has control over another group of people and their territory. In practice, colonialism includes the permanent migration of a population to a previously occupied territory. Laws and policies are developed to justify claiming territory that is already occupied. In Canada, these legal and moral concepts are not simply artifacts of colonial history but serve as the foundation of land claims that are argued in court today. The Doctrine of Discovery and Terra Nullius are legal doctrines that serve as the basis for Canada’s legal right to its territory.

The Doctrine of Discovery finds its origins in Papal Bulls, which are formal statements made by the Pope. The Doctrine can be traced as far back as at least the crusades, where conquest was justified based on the Popes obligation to care for everyone’s spiritual needs.^[1] Relevant to this discussion is Dum diversas and Romanus Pontifex, issued by Pope Nicholas V in the 1400s sanctioning the conquest of North Africa by the Portuguese. Pope Nicholas V states in Romanus Pontifex,

“We [therefore] weighing all and singular the premises with due meditation, and noting that since we had formerly by other letters of ours granted among other things free and ample faculty to the aforesaid King Alfonso — to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his and their use and profit”^[2]

While Romanus Pontifex authorized King Ferdinand of Portugal to conquer North Africa and enslave their population, it did not contemplate Spain, which had just been in the process, referred to as the “Reconquista”, or “conquering Spain back” under the so-called “Reyes Catolicos” or “Catholic King and Queen” – who in turn in 1492 mandated Christopher Columbus to head westward.^[3] In response, the Pope issued Inter Caetera, stating, “…you have purposed with the favour of divine clemency to bring under your sway the said mainlands and islands with their residents and inhabitants and to bring them to the Catholic faith.”^[4]

British and French legal scholars of the time argued over the proper interpretation of the papal bulls, concluding that they could justly assert their sovereignty over any territory or people that is not already under the control of another Christian nation.^[5]

Royal Proclamation of 1763^[6]

With the pope having less authority over international affairs, disputes over land arose from the colonies in North America. After the British defeated the French with the help of the First Nations, the Royal Proclamation of 1763 was issued. The proclamation, in part, served to mediate tensions arising from colonial encroachment onto First Nations territories. The Proclamation is seen as affirming First Nations sovereignty and rights over their land but at the same time, it asserted First Nations Territories as crown ‘dominion’, providing the crown with a mechanism to modify and extinguish Aboriginal Title.

Johnson v M’intosh^[7]

The most prominent case on the Doctrine of Discovery is Johnson v M’intosh, a case from the US Supreme Court. At issue was whether private individuals have the title to land if it was granted by First Nations. In short, the court stated that First Nations could not sell the land because they were not rightful owners. Justice Marshall asserted that European states acquired title to the land upon its discovery. He argues,

“On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire…. discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.”^[8]

The reasoning by Justice Marshall is inherently racist as he explicitly states the Doctrine of Discovery “…is confined to countries ‘then unknown to all Christian people;’”^[9] In other words, First Nations could not own land because their title was not granted through the church. The reasoning is not confined to American jurisprudence either, as the case is referenced throughout Canadian jurisprudence as well.

St. Catherine’s Milling and Lumber Company v The Queen (1888)^[10]

St. Catherines Milling and Lumber Company v The Queen can be interpreted to establish the principles espoused in Johnson v M’intosh into Canadian law. The court determined that First Nations had the right to occupancy and use, but the crown maintained the underlying title. Even though the case had a substantial impact on the rights of Indigenous peoples, there were no Indigenous advocates taking part. The court stated that there was no legal obligation to affirm First Nations title to land, and the reservation of lands was done “For obvious political reasons, and motives of humanity and benevolence…”, although “…it does not give them any title in law.”^[11]

The decision is a good reflection of Eurocentric thinking because it did not consider the Indigenous perspective at all. As an example, the court says, “…nothing is more clear than that they have no government and no organization, and cannot be regarded as a nation capable of holding land.” They also say, “It is a rule of the common law that property is the creature of the law and only continues to exist while the law that creates and regulates it subsists. The Indians had no rules or regulations which could be considered laws.”^[12] We now know these conceptions of First Nations peoples are not true and Canadian courts have acknowledged that in Calder v. Attorney-General of British Columbia (1973). 

Calder v. Attorney-General of British Columbia (1973)^[13]

Calder marked a major shift in the thinking of Aboriginal Title. Justice Judson states,

“Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means…”^[14]

The significance of Calder is that it establishes Aboriginal title as being a legal right based on the prior occupation of traditional territories. It was the first time the courts recognized Aboriginal Title to the land prior to colonization, and it did not happen until 1973. Still, the case was thrown out on a technicality because the Nisga’a had not asked for permission from the crown to sue them  While the case recognized the possibility of Aboriginal title, the doctrine of discovery still serves as a barrier to modern land claims.

Tsilhqot’in v British Columbia (2014)^[15]

The notion that the crown has an underlying title because they ‘discovered’ it is relevant to modern land claim cases. For example, in Tsilhqot’in Nation v. British Columbia (2014) the court argued that the Tsilhqot’in have a right to their lands and claimed that the idea of Terra Nullius never applied in Canada. Terra Nullius is a concept closely tied to the Doctrine of Discovery. It translates to “nobody’s land” and in practice means a nation can assert sovereignty over land that nobody owns. The court’s rejection of Terra Nullius in Tsilhqot’in affirms Indigenous title to land pre-colonization.

But the court went on to describe Indigenous title as a “burden on the underlying title asserted by the Crown at sovereignty”.^[16] Since the Crown has an underlying title, they can encroach on it in instances where it is in the “broader public interest”. The crown’s underlying title is still based on the Doctrine of Discovery.