The Crown’s rights are grounded in its sovereignty and the Crown in Canada is the British monarchy. In that regard, the Crown’s rights in Canada derive from British sovereignty that was extended over Indigenous lands, resources and peoples in Canada. This was done using the Doctrine of Discovery to remove Indigenous sovereignty and implant the Crown’s sovereignty through the doctrine of terra nullius.1,2,3
The Crown’s right in Canada is absolute. All rights in government, corporations, citizens and Indigenous Peoples are granted [given] by the Crown. The Crown can also remove rights it has granted.
The Crown’s right in Canada is placed into the jurisdiction of three branches of government: Executive, legislative, and judicial branches. The Constitution Act (1982) limits parliamentary powers and divides legislative authority between federal and provincial governments. Authority over Indigenous Peoples and Indigenous lands falls within the federal government’s jurisdiction through section 91(24) of the Constitution Act.4
The Crown’s rights are expressed in a combination of constitutional directives, legislation and regulations. Crown rights are interpreted and protected by the judicial [court] system. The judicial system also protects organizations and individuals to whom Crown rights have been granted. This protection of Crown and Crown-granted rights is referred to as the rule of law.
There cannot be two sovereigns [Crown and Indigenous Peoples] over the same territory. This is why the doctrine of discovery was used to remove Indigenous sovereignty. The Crown’s subsequent assumption of sovereignty over the land placed Crown’ rights above sovereign Immemorial rights.5
It makes no matter that Indigenous sovereignty and Immemorial rights predate the Crown in Canada. The only way this will change is if the doctrines of discovery and terra nullius are renounced. The United Nations,6 the Royal Commission on Aboriginal Peoples7 and the Truth and Reconciliation Commission of Canada8 have all denounced these doctrines as racist and criminal. However, the Crown and the Government of Canada have left them in place.
Without the doctrines of discovery and terra nullius, the Crown’s assumed sovereignty disappears leaving the Crown’s right grounded in its rule of law. However, the rule of law can be adapted.
1. (2018) Dismantling the Doctrine of Discovery, Assembly of First Nations. https://caid.ca/AFNDisDocDis2018.pdf
2. (2010) United Nations Permanent Forum on Indigenous Issues, Ninth Session: Preliminary Study of the Impact on Indigenous Peoples of the International Legal Construct Known as the Doctrine of Discovery. Submitted by the Special Rapporteur. E/C.19/2010/13 at para. 9 & 15. https://caid.ca/UNECS19Feb2010.pdf
3. (2007) Fitzmaurice, A., The Genealogy of Terra Nullius, Australian Historical Studies 129: p. 1-15. https://caid.ca/GenTerNul2007.pdf
4. The Constitution Acts 1867 to 1982, section 91 (24). https://laws-lois.justice.gc.ca/PDF/CONST_E.pdf
5. St. Catherines Milling and Lumber Co. v. R., [1887] 13 SCR 577. https://caid.ca/StCatMilDec1887.pdf
6. (2007) United Nations General Assembly, Sixty-First Session: United Nations Declaration on the Rights of Indigenous Peoples, Preamble. https://caid.ca/UNIndDec010208.pdf
“Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust,” [Emphasis Added]
7. (1996) Report of the Royal Commission on Aboriginal Peoples. Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9. Rec. 1.16.1 & 1.16.2. https://caid.ca/RepRoyCommAborigPple.html
8. (2015) Truth and Reconciliation Commission of Canada: Calls to Action, at para 45. i & ii. https://caid.ca/TRCFinCal2015.pdf
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