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Findings of the Truth and Reconciliation Commission of Canada

Doctrine of Discovery

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Judiciary Colonization Tools in Canada


Introduction:


The judicial branch of government functions to maintain the judicial system. The function of the judicial system is to maintain the rule of law.


Rule of Law:


1. Canadian Rule of Law:


The rule of law is the principle that laws limit what we do to protect the greater good – they protect rights. For ease of discussion, we will define laws within the rule of law that protect rights in Canada as constitutional, legislative, or common law:

1. Constitutional law: The codified constitution in Canada that defines roles, powers, and structures for the federal and provincial governments.

2. Legislative law: Legislation that is enacted by provincial or federal governments in Canada.

3. Common law: Decisions made by judges on a case by case basis as they rule on Issues brought before them.


The function of the rule of law in Canada is to protect Crown rights and jurisdiction as they are expressed through the constitution, legislation and court decisions. Included within this protection, are rights the Crown grants to its citizens.


2. Indigenous Rule of Law:


Indigenous law encompasses the protection of an Indigenous nation’s sovereignty, jurisdiction and people as defined by Immemorial rights given by the Creator. Canada’s rule of law is based on the British system and has not been adapted to include Indigenous law.1


The inclusion of indigenous law and sovereignty into the Canadian rule of law would provide protection for sovereign Indigenous Immemorial rights. Conversely, the current exclusion of Indigenous law from the rule of law in Canada, permits the violation of sovereign Immemorial rights.


3. Aboriginal Law:


The rule of law excludes Indigenous law but it does contain Aboriginal law.2 Aboriginal law:

1. Is a body of Non-Indigenous Canadian law related to Indigenous Peoples;

2. Manages the interaction between Indigenous Peoples and the Crown; and,

3. Interprets Aboriginal title and Indigenous-related Fiduciary, Constitutional, Treaty and Aboriginal rights.


The bulk of Aboriginal law in Canada is contained within common law. Indigenous-related rights granted by the Crown are defined and protected by Canadian courts. These include: Fiduciary, Constitutional, Treaty and Aboriginal rights.


Constitutional law:


On another page of the website we have already demonstrated that the Constitution Act, constitutional law, contains instruments for the ongoing colonization and assimilation of Indigenous Peoples within sections 91 (24), 25 and 35. The rule of law upholds the Government of Canada’s rights to:

1. Assume sovereignty of Indigenous land, resources and people;

2. Extinguish sovereign Indigenous rights to land and resources;

3. Extinguish sovereign and international rights to self-determination;

4. Create an alternate rights system to replace sovereign Immemorial rights; and

5. Create Aboriginal citizens to replace pre-existing nation distinctions of Indigenous Peoples.


Legislative Law:


On another page of the website we have already discussed three types of legislation that violate or  exclude sovereign Indigenous Immemorial rights. They are:

1. Indigenous-directed legislation;

2. Indigenous-related legislation; and,

3. Indigenous-omitting legislation.


Common Law:


Common law is the accumulation of constitutional and legislative law interpretation within court decisions. All court decisions are meant to uphold the rule of law which we know:

1. Excludes Indigenous law;

2. Defines and protects Crown rights and jurisdiction while excluding Immemorial rights and Indigenous jurisdiction; and,

3. Defines and protects Crown-granted Indigenous-related Fiduciary, Treaty, Constitutional and Aboriginal rights.


1. Court bias against Indigenous Peoples:


Despite the integrity of those who sit on the bench, common law is biased and retains Crown colonial objectives3 as judges interpret the rights of Indigenous Peoples based on legislation, regulations, previous court decisions, and a constitution that are essentially devoid of Indigenous law and Indigenous-defined rights. The root of all of this is the Doctrine of Discovery.


Moving Forward:


Canada must recognize and include Indigenous sovereignty, rights, law, and jurisdiction into the rule of law to renew its relationship with Indigenous Peoples.4 To accomplish this, Canada will need to embark on a consultation process that meaningfully consults community-based Immemorial rights holders. Due to the nature of traditional Indigenous governance, the information the Government of Canada needs to reconcile the rule of law is carried in the oral traditions and practices of community members.


The impact of reconciling the rule of law will be profound but not insurmountable. Two areas in which we would expect to see an impact are:

1. The reconciliation of rights; and,

2. Traditional Territory Management Rights.


1. The Reconciliation of Rights:


Courts have ruled that Treaty5 and Aboriginal6 rights recognized in section 35 of the Constitution Act must be based on the reconciliation of pre-existing Indigenous societies with the assumed sovereignty of the Crown. However, reconciliation done this way only includes rights (pre-contact) from past generations, excluding present and future generations.7 It also excludes rights of the land vested in Indigenous Peoples.


Without the Doctrine of Discovery, reconciliation will be between all of sovereign Immemorial rights (past, present, and future generations plus the land) and the Crown using Indigenous sovereignty, not Crown sovereignty, as the source of Indigenous rights.


2. Traditional Territory (Resource) Management Rights:


Courts have ruled that both Crown8 9 and corporate interests10 have a veto over Indigenous law and rights. Interesting though, is the claim that Indigenous Peoples are demanding a veto11 over Crown and corporate interests as they push for joint decision making on the management of their traditional territories. In fact, it is the Crown and corporate interests vocalizing to maintain their veto.


How can the Government of Canada renew its relationship as a partnership with Indigenous Peoples and recognize the international right to self-determination, if relevant decisions over traditional territories are not made jointly? When the rule of law is reconciled, no one will have a veto; or, everyone will have a veto.



1. (2015) Truth and Reconciliation Commission of Canada: Volume 6, 2. Indigenous Law: Truth, reconciliation, and access to justice, p. 46-79. http://caid.ca/TRCFinVol62015.pdf

2. (2015) Truth and Reconciliation Commission of Canada: Volume 6, p. 46. http://caid.ca/TRCFinVol62015.pdf

“Canadians need to understand the difference between Indigenous law and Aboriginal law. Long before Europeans came to North America, Indigenous peoples, like all societies, had political systems and laws that governed behaviour within their own communities and their relationships with other nations. Indigenous law is diverse; each Indigenous nation across the country has its own laws and legal traditions. Aboriginal law is the body of law that exists within the Canadian legal system.” [Emphasis Added]

3. (1996) Report of the Royal Commission on Aboriginal Peoples. Volume 1: Looking Forward Looking Back. Part One: The Relationship in Historical Perspective. Chapter 7 Stage Four: Negotiation and Renewal, 2. The Role of the Courts. Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9. http://caid.ca/RRCAP1.7.pdf

“Unfortunately, Canadian courts were unable or unwilling to incorporate the perspective of Aboriginal peoples within existing British and Canadian land law. Thus, they simply adopted the 'discovery doctrine' discussed in earlier chapters, asserting that legal title and ultimate 'ownership' of Aboriginal lands in North America either became vested in the Crown at the moment of discovery by British explorers, or passed from the 'discovering' French king to the British Crown upon France's 1763 cession of its North American possessions to Great Britain. Under the discovery concept the newcomers thus became the 'owners' in terms of their own legal framework. The original Aboriginal inhabitants who had been living on the land from time immemorial were found to have no real property interest in the land at all; rather, they had a mere 'personal' and 'usufructuary' right that constituted a burden on the Crown's otherwise absolute title.” [Emphasis Added} 4.

4. (2015) Truth and Reconciliation Commission of Canada: Calls to Action, at para 45. iv. http://caid.ca/TRCFinCal2015.pdf

45. “We call upon the Government of Canada, on behalf of all Canadians, to jointly develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown. The proclamation would build on the Royal Proclamation of 1763 and the Treaty of Niagara of 1764, and reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown. The proclamation would include, but not be limited to, the following commitments:

iv. Reconcile Aboriginal and Crown constitutional and legal orders to ensure that Aboriginal peoples are full partners in Confederation, including the recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes involving Treaties, land claims, and other constructive agreements. [Emphasis Added]

5. Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 20. http://caid.ca/HaidaDec010208.pdf

“Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims: R. v. Sparrow, [1990] 1 S.C.R. 1075, at pp. 1105-6. Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982.” [Emphasis Added]

6. R. v. Vanderpeet, [1996] 2 S.C.R. 507, at para. 31. http://caid.ca/VanDec1996.pdf

“More specifically, what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.” [Emphasis Added]

7. R v. Marshall; R. V. Bernard, [2005] 2 S.C.R. 220, at para. 124 & 125. http://caid.ca/MarBerDec2005.pdf

124 “… Given the cultural and historical context in which the treaties were signed, to interpret the right of access to resources for the purpose of engaging in traditional trading activities as a right to participate in the wholesale exploitation of natural resources would alter the terms of the treaty and wholly transform the rights it confirmed. Accordingly, trade in logs is not a right afforded to the Mi’kmaq under any of the treaties of 1760-61 because logging represents a fundamentally different use from that which would have been in the contemplation of the parties.”

125 “The right to trade and the right of access to resources for trade must bear some relation to the traditional use of resources in the lifestyle and economy of the Mi’kmaq people in 1760. I conclude that the evidence supports the Chief Justice’s conclusion that logging was not in the contemplation of the parties and was not the logical evolution of Mi’kmaq treaty rights.” [Emphasis Added]

8. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 165. http://caid.ca/DelDec1997.pdf

“The general principles governing justification laid down in Sparrow, and embellished by Gladstone, operate with respect to infringements of aboriginal title. In the wake of Gladstone, the range of legislative objectives that can justify the infringement of aboriginal title is fairly broad. … In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.” [Emphasis Added]

9. Tsilhqot’in Nation v. British Columbia, [2014] SCC 44, at para. 88. http://caid.ca/TsiDec2014.pdf

“Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown’s procedural duty to consult and must also be justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group.”

10. Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), [2017] SCC 54, at para. 154. http://caid.ca/KtunDec2017.pdf

“But here, an accommodation that would not compromise the Minister’s statutory mandate was unavailable. As indicated, the Minister did make an effort to provide the Ktunaxa with accommodation to limit the impact on their religious freedom, but the Ktunaxa took the position that no permanent development in the area could be allowed. This placed the Minister in a difficult, if not impossible, position. He determined that if he granted the power of exclusion to the Ktunaxa, this would significantly hamper, if not prevent, him from fulfilling his statutory objectives: to administer Crown land and to dispose of it in the public interest. In the end, he found that the fulfillment of his statutory mandate prevented him from giving the Ktunaxa a veto right over the construction of permanent structures on over fifty square kilometres of public land” [Emphasis Added]

11. Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., [2017] SCC 41, at para. 59. http://caid.ca/ChiDec2017.pdf

“Indeed, it is for this reason that the duty to consult does not provide Indigenous groups with a “veto” over final Crown decisions (Haida, at para. 48). Rather, proper accommodation “stress[es] the need to balance competing societal interests with Aboriginal and treaty rights” (Haida, at para. 50).” [Emphasis Added]



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Last Updated August 30, 2018