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Colonialism and Aboriginal Title:


Was used by European nations to legalize and legitimate the colonization of ... inhabitants had no fixed residences, but roamed like 'wild beasts in a forest, ... – PowerPoint PPT presentation

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Title: Colonialism and Aboriginal Title:

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

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
  • ? 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

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

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.

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?

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.

What does the Royal Proclamation say about
Aboriginal Peoples?
  • 1) It acknowledges Aboriginal title to reserve
  • 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.

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
  • ? 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.

  • ? 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
  • ? 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.