Colonialism and Aboriginal Title:

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Colonialism and Aboriginal Title

• The Doctrine of Discovery and the Royal
  Proclamation, 1763
• Prepared by Gregor P. Burton, BA

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The Doctrine of Discovery

• Was used by European nations to legalize and
  legitimate the colonization of territory that was
  already occupied
• ? This is not one specific doctrine, but rather a
  collection of the rulings of religious and
  political leaders from the time of the Romans
  onwards.
• ? Prior to the 1500s, there was no concept of
  international law rather, states worked with
  each other through treaties and agreements.
• ? In the 1500s, Francisco de Vitoria and Hugo
  Grotius developed the theoretical framework for
  international law. This was based on natural
  law, which had been describedin detailby
  Aristotle.

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What do the doctrines say?

• ? As they developed, the doctrines came to assert
  that the European, Christian nations had the
  right to dominate non-Christian peoples.
• ? Initially, the doctrines promoted the idea that
  European conquerors could claim territory that
  was terra nullius or empty land.
• ? During the Age of Discovery, European states
  found that there was very little land that was
  truly empty. As such, they developed the
  concept of terra incognito or void or unused
  land.

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More on Terra Incognito

• This concept extended the rights that European
  nations had to claim territory they could now
  claim land that was not properly cultivated.
• The European nations were, of course, charged
  with determining what proper cultivation meant.
  These explorers applied their standards of
  living to the new world, and in most cases, the
  manner in which discovered peoples lived was
  found to be lacking.
• ? Where inhabitants had no fixed residences, but
  roamed like wild beasts in a forest, European
  states could claim territory and sovereignty over
  all the peoples who lived there.

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What does this mean?

• Christian, European states had the right to claim
  land that was already occupied, by virtue of a
  value judgement of the people who lived there.
• ? The conquering nations created the legal
  systems that allowed them to claim the territory,
  and imported their own legal systems to the
  newly-claimed land.
• ? How just was this?

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The Royal Proclamation, 1763

• Was a statement by King George III regarding how
  Britain would rule its territories in North
  America. The French had signed the Treaty of
  Paris, 1763, to end the Seven Years War, and
  this gave Britain control over virtually all of
  Frances North American possessions.
• Asserts that British rule over territories in
  North America is legitimate, and will continue.
• Our loving Subjects should be informed of
  our Paternal care, for the security of the
  Liberties and Properties of those who are and
  shall become Inhabitants thereof.

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What does the Royal Proclamation say about
Aboriginal Peoples?

• 1) It acknowledges Aboriginal title to reserve
  lands.
• 2) It acknowledges Aboriginal hunting and
  fishing rights on lands that have not been ceded
  to the Crown.
• 3) It forbids non-Aboriginal settlers from
  encroaching upon Aboriginal land, or making
  agreements to purchase it.
• 4) It states that all land surrenders by First
  Nations (Nations or Tribes of Indians) must be
  made to the crown.

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What does this mean for Aboriginal Peoples?

• ? The Royal Proclamation formally recognizes
  Aboriginal title that is, title to traditional
  lands and those that have not been ceded to the
  crown.
• ? This is important, as the British Common Law
  tradition acknowledges this proclamation as law.
  Britain does not have a traditional constitution
  rather, its constitution is considered to be a
  living document, which changes as a result of
  laws, statutes, proclamations, charters, and
  legal decisions.

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Continued

• ? The only mention of Aboriginal Peoples in the
  British North America Act, 1867, is in s.91 (24),
  which grants the Federal government jurisdiction
  over Indians, and Lands reserved for the
  Indians.
• ? The Constitution Act, 1982, (s. 25) recognizes
  all of the rights provided to Aboriginal Peoples
  by the Royal Proclamation, and further recognizes
  all rights that have been obtain up to 1982,
  those that have been obtained since then, and
  those that will be obtained in the future.