Judicially Reconciling Settler Colonial Occupation

On April 1, 2022, Pope Francis apologized to residential school survivors, after a week of private meetings with delegations from Indigenous people in Canada,

I also feel shame… sorrow and shame for the role that a number of Catholics, particularly those with educational responsibilities, have had in all these things that wounded you, and the abuses you suffered and the lack of respect shown for your identity, your culture and even your spiritual values.

For the deplorable conduct of these members of the Catholic Church, I ask for God’s forgiveness and I want to say to you with all my heart, I am very sorry. And I join my brothers, the Canadian bishops, in asking your pardon.

This statement represents an important symbolic, and for some, ethical and religious step, necessary towards achieving reconciliation with Indigenous peoples in Canada. But it will also lead to some difficult and challenging questions about the legitimacy of the settler-colonial state itself, and of the judicial system.

The Supreme Court of British Columbia wrestled with this very issue in a recent decision in Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc.

The plaintiffs claimed Aboriginal title and right to fish in a watershed affected by the Kenney Dam, which was constructed in the early 1950s. They sought common law tort claims against the company responsible for building the reservoir, and injunctive relief against the company and both levels of government to mitigate the environmental effects that had direct impacts on these fishing interests and title claims.

Both levels of government denied a fiduciary duty of this type, and while acknowledging the Aboriginal right to fish for food, social, and ceremonial purposes, denied that any such claim could create a basis for nuisance in law.

The lengthy trial, which took a year and a half, resulted in a decision over 200 pages, resulted in Justice Kent granting an unprecedented decision confirming that non-governmental parties are not immunized from potential liability claims based on breaches of Aboriginal rights. However, in this case the company was immunized from liability under the defence of statutory authority.

In coming to this conclusion, Justice Kent was forced to directly confront the contest between Aboriginal title and Crown sovereignty. These were grounded from the perspective of the state in the earliest days prior to confederation in the Royal Proclamation of 1763 by King George II on Oct. 7, 1763, which drew heavily on the doctrine of discovery and the concept of terra nullis to provide settler title to lands they erroneously presumed to be empty and hence discovered. 

The common law long endorsed and and advanced these concepts. In R. v. Van der Peet, the Supreme Court of Canada drew on American jurisprudence and stated in 1996,

34. The basis of aboriginal title [is] based that fiduciary relationship… derived from the Indians’ historic occupation and possession of their tribal lands“.

36. In Johnson v. M‘Intosh, 21 U.S. (8 Wheat.) 543 (1823), the first of the Marshall decisions on aboriginal title, the Supreme Court held…

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.

Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.

In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.

While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.

It is, similarly, the reconciliation of pre-existing aboriginal claims to the territory that now constitutes Canada, with the assertion of British sovereignty over that territory, to which the recognition and affirmation of aboriginal rights in s. 35(1) is directed.

[Emphasis added in bold; emphasis in original underlined.]

More recently though, the Court stated in 2014 in Tsilhqot’in Nation v. British Columbia,

[69] The starting point in characterizing the legal nature of Aboriginal title is Dickson J.’s concurring judgment in Guerin, discussed earlier. At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province. This Crown title, however, was burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival.  The doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada, as confirmed by the Royal Proclamation of 1763.  The Aboriginal interest in land that burdens the Crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.

The federal government enacted into law on June 21, 2021 the United Nations Declaration on the Rights of Indigenous Peoples Act, which states in the preamble,
Whereas 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;
[Emphasis added in bold]

Justice Kent examined this apparent dichotomy and philosophical tensions in the law, and the very legal justification for the assertion of Crown sovereignty over Indigenous peoples and land and stated,

[196] This construct has become a fundamental part of the framework animating Aboriginal law jurisprudence following 1982, when s. 35 of the Constitution Act1982 formally recognized and affirmed the existing Aboriginal rights of the Indigenous peoples in Canada. But, one may rightly ask, if the land and its resources were owned by Indigenous peoples before the arrival of Europeans, how, as a matter of law, does the mere assertion of European sovereignty result in the Crown acquiring radical or underlying title? How and why does pre-existing Indigenous title somehow become subordinate?

While Justice Kent does not presume to answer this question definitively, he lent support to the theory that this legal construct is a legal fiction to justify the seizure and control of land and resources from Indigenous peoples, but ultimately concluded,

[201] Still, regardless of any legal frailties underlying the Crown’s assertion of sovereignty over British Columbia in 1846, the plaintiffs’ claims confront certain harsh realities, unpalatable though they may be to many.

In this decision, the court was unable to find liability on behalf of the government given overlapping title claimants that were not involved in the proceedings, even though the Kenny Dam substantially affected the fish in the area and its use by the plaintiffs. They did find that Aboriginal rights can be the foundation for civil action against non-governmental entities, but this would not apply here because the corporation was authorized by governmental permits and covered by the defence of statutory authority.
Justice Kent applied the main cases of the defence of statutory authority, which was itself imported from England in City of Manchester v. Farnworth,
When Parliament has authorized a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorized. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense.

An act that is authorized by statute cannot be tortious, as long as the statute authorizes the work, conduct or activity expressly or by necessary implication. Justice Kent rejected the notion of constitutional inapplicability as it related to this type of immunity, as the legislation involved related to the corporation and not the plaintiffs.

The difficulty with this type of immunity is that the a statutory authority that is provided may not see its effects for decades or even generations to come. The opportunity is that these decisions are made not in the courts, but through government, as awareness of the importance of reconciliation increases.

The Pope’s recent statement, and more broadly reconciliation activities across Canada, may assist in that necessary shift.


  1. Gerald Genge (Adjudicator)

    Very thorough… Thank you for this. It seems the problem will continue to remain in both the terminology and in the rules of engagement. A settler lens will be used by courts because those are constructs of settler law. However, Indigenous “law”, which resided prior seems to have no standing in a settler law court except as allowed by settler law. I don’t think we can properly resolve disputes like this until we have a new set of laws that respect both Indigenous rights and idea(l)s as well as European rights of property use.

  2. Matthew Oleynik

    This is an excellent article about a subject that can seem impenetrable to non-experts. Thank you for posting it.

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