Nahwegahbow: ‘Terra Nullis’ is Dead in Canada

29 06 2014

[Editor: ‘Terra Nullis’ was the legal doctrine used by the British Empire to declare that indigenous territories were ’empty’ or devoid of any indigenous claims on the land. This same doctrine was used throughout the British Empire, including India and Australia. With the Tsilhqot’in decision, the Supreme Court has declared ‘terra nullis’ dead in Canada.]

Supreme Court had ‘no other choice’ in landmark ruling: lawyer

Tsilhqot’in Nation case first time that the Supreme Court issued a declaration of Aboriginal title

By David C. Nahwegahbow, for CBC News Posted: Jun 29, 2014 5:00 AM ET Last Updated: Jun 29, 2014 5:00 AM ET

The Supreme Court of Canada decision resolves important legal questions, such as how to determine aboriginal title and whether provincial laws apply to those lands.

The Supreme Court of Canada decision resolves important legal questions, such as how to determine aboriginal title and whether provincial laws apply to those lands. (CBC)


The Tsilhqot’in Nation case is a landmark decision because it is the first time in history that the Supreme Court ever issued a declaration of Aboriginal title – essentially a declaration that the Tsilhqot’in owned the land.

But reading the case, it is clear the Court had no other legitimate choice.

The BC government did not properly consult and accommodate the Tsilhqot’in people with regard to forestry operations within their lands. The BC Supreme Court issued a non-binding ruling wherein Justice Vickers said that the Tsilhqot’in probably had Aboriginal title and that the Crown ought to negotiate a fair and honourable settlement.


The Supreme Court of Canada struck down Canada’s prostitution laws on Dec. 20 and gave the federal government one year to draft new legislation.

What did the federal and BC governments do? Ignoring previous directions from the Supreme Court to seek reconciliation, they decided to appeal the ruling to the BC Court of Appeal and the Supreme Court of Canada.

The Crowns lost; common sense, the rule of law and constitutionalism prevailed.

Tsilhqot’in case proves Aboriginal title

The Crown governments argued that Aboriginal claimants had to establish intensive physical use of specific tracts of land to prove Aboriginal title – what has come to be known as the “postage stamp” theory of Aboriginal title. As the ethno-centric argument goes, the Tsilhqot’in and Aboriginal peoples generally were nomadic or semi-nomadic and unlike sedentary agricultural people, could never establish Aboriginal title to their traditional territories.

  • The Calder decision (1973) recognized the possibility that Aboriginal title may exist in Canada.
  • The Guerin decision (1984) where it held that Aboriginal title was an independent legal interest that could only be ceded to the Crown, which as a result made Aboriginal peoples vulnerable to the Crown and imposed a corresponding fiduciary duty on the Crown to act in the best interest of Aboriginal title-holders.
  • The Sparrow decision (1990) recognized and affirmed Aboriginal and treaty rights as “existing rights” within section 35 of the Constitution Act, 1982.
  • The Delgamuukw case (1997) which said that Aboriginal title was on par with non-Aboriginal land ownership, in that it gave a right to exclusive occupancy and the right to enjoy the economic benefits of the land.  Delgamuukw also set-out the test for proving Aboriginal title.
  • The Haida case (2004) where the Supreme Court said that Aboriginal peoples had to be consulted and accommodated before the Crown could take decisions that impacted adversely on their Aboriginal rights.

The IBA argued that Aboriginal claimants can also lead evidence of legal occupancy, i.e., Indigenous laws such as laws on tenure and trespass, to establish proof of Aboriginal title. There was ample evidence produced at trial to show that Tsilhqot’in people had such laws. The Supreme Court held that the Aboriginal perspective, including Tsilhqot’in laws are to be given equal weight in determining Aboriginal claims. This applies equally to treaty claims.

Tsilhqot’in proven to be owners of land

Further, one of the most interesting things about the Tsilhqot’in case is with regard to the doctrine of terra nullius, a Latin term which means empty land. That theory espouses that Indigenous peoples were so uncivilized that they could not be seen in law to be true legal occupants and owners of their lands.

It was the legal basis upon which Indigenous peoples were dispossessed of their lands throughout the colonial period in many parts of the world. The Crown postage stamp theory of Aboriginal title is reminiscent of the doctrine of terra nullius. The Supreme Court has now stated unequivocally in the Tsilhqot’in case that the doctrine of terra nullius is not part of the law in Canada.

‘It is quite likely that federal and provincial governments will again ignore the advice of the Court on reconciliation. This will mean more conflict in the future.’– David C. Nahwegahbow, lawyer

There is another important point in the case and that is the issue of consent.

The Supreme Court wrote that whether before or after a declaration of Aboriginal title, governments and individuals can avoid an infringement of the duty to consult by obtaining the consent of the Aboriginal group affected.

This effectively raises the significance of the First Nation communities in decision-making processes regarding resource management decisions affecting their land and rights. This lends credence to the United Nations Declaration on the Rights of Indigenous Peoples, which calls for the free prior and informed consent before development on Indigenous lands.

More conflict in future likely

What are the implications of the Tsilhqot’in Nation case for Canada? Will Crown conduct change? It is hard to say. Unfortunately, judging from their past conduct, it is quite likely that federal and provincial governments will again ignore the advice of the Court on reconciliation. This will mean more conflict in the future.

However, I am hopeful that the Crown will learn from this case: that they will sit down with Indigenous peoples, modify federal and provincial  laws and policies to positively embrace what section 35 of the Constitution Act, 1982 provides, and what the Supreme Court has been saying all along — Aboriginal and treaty rights are hereby “recognized and affirmed”, and not denied, infringed and extinguished.





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