THE SUPREME COURT OF CANADA AND THE `LEGAL AND POLITICAL STRUGGLE' OVER.
Many Indian leaders have recognized that the Supreme Court of Canada .
changed direction very significantly on issues of treaty and aboriginal.
rights. As a result, Indian attitudes towards the courts and litigation.
as a strategy are changing. This paper attempts to describe the changes.
that have been underway, with particular reference to judicial .
towards Indian treaties. .
United States law has used the doctrine of "discovery" to justify the.
takeover of Indian people and territory. In the same way Australian law.
has used the concept of "terra nullius," the legal myth that Australia.
had no previous owners. Today it is easy to see that both doctrines are.
racist. Both are inconsistent with modern international law. The United.
Nations Working Group on Indigenous Populations rejects both doctrines.
Canadian law has never used either "discovery" or "terra nullius." Our.
legal tradition has been so self-confident, so arrogant, that it felt .
need to have any legal theory justifying British colomalism. .
It is now generally accepted that the initial relations between Indian.
tribes and the European colonial powers in New England were on a nation.
to nation basis. Written treaties between tribes and European powers go.
back to the early 1 7th century. International practice on treaties was.
flexible in that period. International law accepted that there were a.
range of political entities, not simply the single modern model of the.
sovereign state. In the law of the period it was not remarkable for.
tribes to be recognized as natural political communities, with whom.
international relations could be established. .
Indian-Colonial Relations .
There are many myths about this early period. The reality was not.
peaceful negotiations leading to treaties. The history was much more.
brutal, with extensive warfare and the extermination of whole tribes.