Friday, January 29, 2021

Why not immediately formally denounce the racist doctrine of discovery and terra nullius as justifications for settler presence?

This article is in the form of a question. I don't know the answer, but it is something I hope people start to think about.


This comes up regularly on social media when people ask why Canada can't simply recognize the human rights of indigenous peoples (as articulated by UNDRIP), as well as formally denounce racist doctrines so that Canada is no longer so obviously a systemically racist country.


I've already discussed that I agree with all the people who believe that implementing UNDRIP requires a change to the Canadian constitution.  Given how hard it is to make changes to the constitution, this isn't gong to happen in the short term. Canada needs a process to change the large number of Canadian laws which are based on systemic racism and white supremacy before we can then change the constitution to allow full UNDRIP implementation.


But what about the racist doctrines?

We are all treaty people.

Anishinabek Nation provides a great reading of the children's book titled "We are all ... Treaty People". This is for anyone who hasn't thought before about the treaties that form the basis of Canada, or know about the Royal Proclamation (1763) or the Treaty of Niagara (1764).

Are we all treaty people?

This leads me to my next question, which is whether we are all treaty people?

Westward colonial expansion after the Treaty of Niagara happened very quickly, and quite regularly in violation of that treaty: that is whether we consider the British loyalists, or the separatists who didn't want to pay taxes (what is now called the United States).

I discuss the racist Doctrine of Discovery and terra nullius in an earlier article suggesting how to help stop overt racism and white supremacy in Canada.

If we rid ourselves of those doctrines, what we end up with is treaties that European nations (or European created subsidiaries like Canada) made with the nations that already existed on Turtle Island.

Anyone quickly looking at a map of the areas of Canada covered by treaties may notice something interesting.

Several provinces that people consider part of Canada, including the bulk of "British Columbia", "Quebec", and "Newfoundland and Labrador", aren't covered by treaties.  There are some modern treaties relating to northern territories, so that work is already underway (even if currently far too tilted in favor of colonial interests).

Lacking any treaties, and absent the racist doctrines, by what legal right do these provinces exist?

This is a serious question:  The Holy See has already indicated these doctrines have been abrogated, and given the papal bulls from the Pope were the origins of this offensive legal concept, what is left?

I'm aware the Quebec government (they call themselves a "National Assembly" as part of their marketing to falsely claim they are a nation) believes they have the legal right to separate from the Canadian Crown. I don't see how that is legally possible as it appears to be the case that if the Quebec government separated from the Canadian Crown that it would cease to exist as it would have no land base. The same is true of the so-called WExit movement made up of people who seem to believe that the Alberta and Saskatchewan governments have the legal ability to separate from the Canadian Crown and still have a land base.

I'm currently looking for a Canadian (well, Turtle Island) source for a book written by the Grand Council of the Crees called "Sovereign injustice: Forcible inclusion of the James Bay Crees and Cree territory into a sovereign Quebec".

This was written in the aftermath of the Quebec referendum of 1995, based on a Cree Brief in the Debate leading up to the referendum.  It addresses odd presumption that the Government of Quebec had the legal authority according to international, Canadian or Aboriginal law to be sovereign from Canada.

While I look forward to reading this book, I don't see a way to believe that provinces have the legal authority to be sovereign from Canada, or that specific lands that Canadians consider part of Canada would remain so unless new treaties were signed to allow settlers to continue to share the lands.

I believe with the existence of the Quebec and Alberta sovereignty movements there is clearly work to be done for Canadians to have a shared understanding of the current legal situation before we can move forward, including the necessary upgrades of the constitution to conform to international law and recognized human rights.

There are many activities that can be done in the short term towards Canada honoring human rights and stopping the genocide, but I don't believe it is reasonable to believe everything can be done immediately.

My suggestion for a short-term list:


  • Launch a formal process to upgrade laws towards conformity with UNDRIP, with full indigenous consultation and cooperation, and with regular reporting on progress (so the international community can apply appropriate pressure).  This is the design of Bill C-15, and it is important to remember that this bill does not itself implement anything, whether UNDRIP or CANDRIP.
  • Correct the racist injunction process such that not destroying land is the status-quo, and that "developers" or other entities are disallowed from modifying the land until clear title is established for the land.
    • Apologies and adequate reparations made for all the racist abuses of this legal doctrine in recent years should be carried out, not limited to the high profile examples in Kanesatake,  Chippewas of Kettle and Stony Point First Nation, Wet’suwet’en Nation, Haudenosaunee (Grand River).
  • Restore rights of self-determination.
    • This means Canada recognizing these nations as nations, and addressing them on a nation to nation basis.
    • This will be different in different nations, and there can be no one size fits all.
    • In the case of the 6 Nations of the Grand River, their participatory democracy is intact and all that is needed is for the Canadian governments to fully recognize this democracy as the legitimate government, allowing the Indian Act band council bureaucracy to fold. It was never legitimate for Canada to send in the RCMP to depose a democratic government, and this offense should be corrected immediately.
    • In other cases some help will be needed to build back governance infrastructure which Canada destroyed. It should be up to the nation who (which other nation/nations) they receive that help from, and not imposed on them by the Canadian government.  The only thing the Canadian government must do is recognize the new national government once established, and fold the Indian Act band council bureaucracy.

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