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ests in land, the rights and interests in the land which they had theretofore
enjoyed under the customs of their community are seen to be a burden
on the radical title which the Crown acquires.59
Thus, the Mabo judges not only purported to reject “the doctrine of terra
nullius”, but they also rejected what they saw as a straight line of legal reasoning
from the designation of the colony as “settled”, to the application of
English law to the colony, to the inability or refusal of English common law
to recognize Aboriginal title.60
So, what does all this Australian analysis and debate have to do with
Canada? In Part II of this article, I tackle this question. I will begin by showing
that the first mention of terra nullius in a Canadian judgment came a
year after the High Court of Australia’s decision in Mabo. It is clear, I suggest,
that Canada imported terra nullius from Australia. Yet it is equally
clear, in my view, that our jurisprudential treatment of the term and the
concept is distinct from Australia’s. But my ultimate point, which I make by
brief reference to historical facts in British Columbia, is that as lawyers, we
would be best served by considering the history of the role of law in our
province, rather than continuing to engage with the shorthand terra nullius.
ENDNOTES
1. New Zealand’s inclusion in this paragraph could be
the subject of a separate article. See e.g. the 1840
Treaty of Waitangi | Te Tiriti o Waitangi.
2. For similar statements regarding terra nullius, see
United Nations Declaration on the Rights of Indigenous
Peoples Act, SC 2021, c 14, preamble (providing,
as a recital, that “all doctrines, policies and
practices based on or advocating the superiority of
peoples or individuals on the basis of national origin
or racial, religious, ethnic or cultural differences,
including the doctrines of discovery and terra nullius,
are racist, scientifically false, legally invalid, morally
condemnable and socially unjust”); British Columbia,
“Directives on Civil Litigation Involving Indigenous
Peoples” (21 April 2022), Directive #14, online:
<news.gov.bc.ca/files/CivilLitigationDirectives.pdf>
(“the Province is committed to negotiating treaties,
agreements and other constructive arrangements
outside of the litigation process, guided by, among
other things, the repudiation of concepts such as the
doctrine of discovery and terra nullius … ”).
3. Andrew Fitzmaurice, “The Genealogy of Terra Nullius
” (2007) 38:129 Austl Historical Studies 1 Fitzmaurice,
“Genealogy”.
4. Mabo v Queensland (No 2), 1992 HCA 23
Mabo. Unless stated otherwise, all references are to
Justice Brennan’s reasons.
5. Noel Castree, Rob Kitchin & Alisdair Rogers, eds, A
Dictionary of Human Geography (Oxford: Oxford
University Press, 2013).
6. Laura Benton & Benjamin Straumann, “Acquiring
Empire by Law: From Roman Doctrine to Early Modern
European Practice” (2010) 28:1 L & Hist Rev 1 at
1.
7. What follows is an abbreviated synopsis of an
exceedingly complicated history.
8. Andrew Fitzmaurice, Sovereignty, Property and
Empire, 1500-2000 (Cambridge: Cambridge University
Press, 2014) at 302 Fitzmaurice, Sovereignty
; Anthony Pagden, The Burdens of Empire:
1539 to the Present (Cambridge: Cambridge University
Press, 2015) at 138; Douglas Howland, “Sovereign
Claims and Possessions – The Beginnings of the
Territorial State” (2019) 7:6 Intl J Social Science
Studies 71 at 72–73.
9. Conal Condren, Political Vocabularies: Word
Change and the Nature of Politics (Rochester: University
of Rochester Press, 2017) at 85.
10. Fitzmaurice, Sovereignty, supra note 8 at 304–10;
Howland, supra note 8 at 74–76.
11. Fitzmaurice, Sovereignty, supra note 8 at 303. See
also Fitzmaurice, “Genealogy”, supra note 3 at 6;
Benton & Straumann, supra note 6 at 3, 6.
12. Fitzmaurice, Sovereignty, supra note 8 at 303–04.
13. Ibid at 306–10.
14. Ibid at 310.
15. Fitzmaurice, “Genealogy”, supra note 3 at 4. See also
ibid at 311. Fitzmaurice refers to Piccioni as Italian,
but my research discloses that he was French, born in
Corsica, and worked for the French government.
16. Fitzmaurice, Sovereignty, supra note 8 at 312.
17. Fitzmaurice, “Genealogy”, supra note 3 at 15.
18. Fitzmaurice, Sovereignty, supra note 8 at 319–20.
19. Ibid at 316.
/CivilLitigationDirectives.pdf
/CivilLitigationDirectives.pdf