The survival of Native territorial sovereignty in Canadian land claims law: Acknowledging and historical fact.

Abstract

The thesis of this dissertation is that the sovereignty of Natives over their ancestral lands not transferred by treaty or conquest was always recognized by the various colonial Powers who successively claimed Canada. The focus of the paper is legal. The aim is to prove the maintainability at law, and specifically at Canadian law, of Native territorial sovereignty. The paper does not attempt to describe the qualities this legal sovereignty possesses. To prove the thesis, the study takes a primarily historical perspective in determining what was the law of the various Powers at the relevant time as concerns the status of indigenous populations and their territories in newly discovered lands. The dissertation begins in chapter two, by examining international law. Chapters three, four and five then look at the practices, respectively, of Spain and Portugal, of France and of England as the principal Powers involved in the colonial history of Canada. In chapter six, the study turns to the judicial arena and examines Canadian caselaw, and its American influences. It also engages in a comparative review of the caselaw in Australia and New Zealand. Finally, having established that Native sovereignty is at least theoretically part of the law Canada inherited and that the issue has not been judicially foreclosed, chapter seven examines the treaty and comprehensive land claims agreement processes in Canada. To show that vast parts of the country which were occupied by Indians at the time of European contact, remain so today, and are not yet under treaty. These areas constitute territories over which Canadian sovereignty has wrongly been assumed which potentially could be lost to Canada if not secured by treaty. (Abstract shortened by UMI.)