The Durability of Terra Nullius: Tsilhqot'in Nation v. British Columbia
![handle is hein.journals/ubclr48 and id is 723 raw text is:
DURABILITY OF TERRA NULLIUS
ARTICLES
THE DURABILITY OF TERRA NULLIUS: TSILHQOT'IN
NATION VBRITISH COLUMBIA
JOHN BORROWSt
Indigenous peoples across the world have long critiqued the idea that
their lands were legally vacant when Europeans arrived on their shores.
Nevertheless, many countries with significant Indigenous populations
were subject to legal regimes that confiscated Indigenous lands and
destabilized their decision-making powers.2 Though never perfected,, the
Professor John Borrows, BA, MA, JD, LLM, PhD, LLD (Hons), FRSC, IPC, of the
Chippewas of the Nawash First Nation, Canada Research Chair in Indigenous Laws,
University of Victoria Faculty of Law. I would like to acknowledge the following
individuals for their feedback on earlier drafts of this paper: Hannah Askew, Ben
Berger, Lindsay Borrows, Carwyn Jones, Aaron Mills, and Kerry Wilkins. A short,
skeletal version of the following ideas appeared in John Borrows, Aboriginal Title in
Tsilhqot'in v. British Columbia [2014] SCC 44, online: Maori L Rev (August 2014)
<maorilawreview.co.nz>.
See Robert J Miller et al, Discovering Indigenous Lands: The Doctrine ofDiscovery in
the English Colonies (Oxford: Oxford University Press, 2010); Lindsay G Robertson,
Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of
Their Lands (New York: Oxford University Press, 2005); Robert A Williams, Jr, The
American Indian in Western Legal Thought: The Discourses of Conquest (New York:
Oxford University Press, 1990).
2 See Permanent Forum on Indigenous Issues, Preliminary study of the impact on
indigenous peoples of the international legal construct known as the Doctrine of
Discovery, UNECOSOCOR, 2010, UN Doc E/C19/2010/13, online:
<www.un.org/esa/socdev/unpfii/documents/E.C.19.2010.13%20EN.pdf>.
For a discussion of the legally pluralistic histories of encounter, see Lauren Benton,
Law and Colonial Cultures: Legal Regimes in World History, 1400-1900
2015
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The Durability of Terra Nullius: Tsilhqot'in Nation v. British Columbia
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