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Indigenous Sovereignty: Tsilhqot’in Nation v. British Columbia (2014)

"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" (par. 69).

Tsilhqot’in Nation v. British Columbia, 2014 SCC 44

"[T]his conception of Aboriginal rights relies, if not on terra nullius, then on some attenuated doctrine of a hierarchy of civilizations, or at least a hierarchy of legal systems. How else could the Crown acquire sovereignty over, and underlying title to, Indigenous territories through mere assertion, in the face of 'pre-existing systems of aboriginal law' that did not recognize the Crown's acquisition of sovereignty and underlying title? If the Crown acquired sovereignty and underlying title by assertion . . . then it follows that the Crown displaced pre-existing systems of Aboriginal law . . . by mere assertion. To accept that conclusion, in such a manner that it would ground de jure Crown sovereignty, we must accept that the legal system asserted by the Crown is in some sense superior to pre-existing systems of Aboriginal law — a view that, historically at least, is grounded in doctrines of civilizational hierarchy that rank Indigenous societies as less advanced than those of their European colonizers" (27).

Beaton, Ryan. "De Facto and De Jure Crown Sovereignty: Reconciliation and Legitimation at the Supreme Court of Canada." Constitutional Forum constitutionnel, vol. 27, no. 1, 2018, pp. 25-33.