LAW 202 Lecture Notes - Lecture 14: Thurgood Marshall, James Bay And Northern Quebec Agreement, Nunavut
20 May 2018
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The effect of the Doctrine of Discovery
• according to chief Justice Marshall: The effect was to
leave the original inhabitants of North America with a mere
right of occupancy in their traditional territories.
• And it was a right which they had until the Crown took it
away by agreement such as the signing of a treaty or by
unilateral proclamation.
This view was confirmed in the late 19th century by the Judicial
Committee of the Privy Council in London, then the highest
court of appeal for Canada and remains the law until 1973.
The Doctrine of Discovery is historically wrong (+ legally &
morally dubious)
→ The real way Europeans acquired rights + sovereignty in
North America was through treaty making.
When making the earliest treaties: both sides treated them importantly and as solemn
engagements. Over time, European self interest = treaties=
unnecessary formalities with little meaning except as: surrenders
of land to the Crown.
This contrasted the Aboriginal understanding of treaties as solemn agreements to share
the land and its resources in a fair and equitable way
It should be remembered that the treaties were entered into using
indigenous legal forms from past agreements between Aboriginal peoples
themselves.
The writing represented only one form or version of the treaty
(European).
When interpreting treaties, it would thus be unfair & misleading
to rely only on the written account of the agreement made.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
The effect of the doctrine of discovery: according to chief justice marshall: the effect was to leave the original inhabitants of north america with a mere right of occupancy in their traditional territories. And it was a right which they had until the crown took it away by agreement such as the signing of a treaty or by unilateral proclamation. This view was confirmed in the late 19th century by the judicial. Committee of the privy council in london, then the highest court of appeal for canada and remains the law until 1973. The doctrine of discovery is historically wrong (+ legally & morally dubious) The real way europeans acquired rights + sovereignty in. When making the earliest treaties: both sides treated them importantly and as solemn engagements. Over time, european self interest = treaties= unnecessary formalities with little meaning except as: surrenders of land to the crown.
