Letter: A primer on the international law and Indigenous rights

Writer exposes common myths about the Doctrine of Discovery and Terra Nullius

To the Expositor:

There are three instruments in international law that are legally binding upon the parties that enter into agreements using those instruments.  One is a treaty, the second is a convention, and the third is a covenant.  A declaration is not legally binding in international law.  So, UNDRIP or the United Nations Declaration on the Rights of Indigenous Peoples is merely persuasive.  

The fact that there is an 1850 Robinson Huron Treaty speaks to several important concepts.  The first is that the British Crown in 1850 entered into a treaty with the Anishinaabe nation knowing that they were dealing with “Indians” as a sovereign nation.  The second is that a treaty is an international legally binding agreement.  The British Crown treaty commissioners knew that, in order to gain access to Indian lands, they had to enter into treaty with Anishinaabek.  The motivating factor was the discovery of gold and silver on Anishinaabe lands, among other resources. 

There are two other myths that have been debunked – time and again.  The first is the “Doctrine of Discovery” which posits that European explorers “discovered” the Americas, North, Central, and South America.  The Americas had been civilized by Indigenous peoples since time immemorial.  City-states and nation-states existed in the Americas for thousands of years before the arrival of Europeans, examples being the Maya, the Inca, and the Three Fires Confederacy of Anishinaabek.  These civilizations created governance systems, infrastructure connecting nations to each other, agricultural and irrigation systems, writing, calendars, and a myriad of indigenous languages.

The second myth that has been exposed is “Terra Nullius” or empty land.  Terra Nullius was the doctrine that European monarchs relied on when they instructed European explorers to claim “empty lands” for them.  Indigenous lands could, according to the European monarchs, be taken by force, and religious indoctrination imposed upon the Indigenous peoples in order to “civilize” them.  Indigenous knowledge systems, about how Indigenous civilizations came to be, existed among every Indigenous nation in the Americas.  

If Canada and Ontario are unable to pay shares of the net Crown resource based revenues, meaning that the coffers are nearly empty, there is a simple solution to that.  The “Indians” who entered into treaty with the Crown can take the lands back.  Those lands are Indigenous allodial title lands and the 1850 Robinson Huron Treaty was merely, and only, an agreement to share the land’s resources.  The underlying title was, and is, Anishinaabe original land title. So maybe $4 per year per capita x 171 years x accrued annual interest would be one way to think about it.  Or how about the number of square kilometres of land within the 1850 Robinson Huron Treaty area x the Anishinaabek share of the value of extracted resources since 1850 x the number of Anishinaabek within the Robinson Huron Treat area x accrued annual interest.  Bingo! Bakanaagemi!  

There is an Indian Trust Fund in existence, which holds funds accrued from the “sale” of Indian lands in Canada.  Funds from that trust are applied to infrastructure, housing, health services, education, water delivery, and community services provided on “Indian” reserves.  So the myth that “Indians” get everything for free is just that – a myth.

The honour of the Crown is frayed and ragged.  Just look at the substandard housing; the boil water advisories; the health issues including diabetes, cancer, heart disease, and the opioid crisis; domestic violence; missing and murdered Indigenous women and girls; and corrupt leadership in many communities. Time to make some things right, I say.  Na haaw, mii sa iw.

Marie McGregor Pitawanakwat

Daawganing (South Bay)