Montreal and Aboriginal Law

Guest post by Maxime St-Hilaire

This post is translated and adapted (by L.S.) from the original version published at À qui de droit

I have recently had an email exchange with a colleague from McGill, and noticed that their signature included the following statement: “McGill University is located on unceded Indigenous land Tiohtià:ke – Montreal”. Tiohtià:ke is the Mohawk name of the Monreal area. As the colleague in question is not an expert in this area, I surmise that this assertion is in more or less common use at McGill. 

And not only there. For instance, on October 26, 2021, Radio-Canada’s “Indigenous Spaces” page published an op-ed by a “lawyer specializing in aboriginal law for about 10 years” under the heading “Montreal, unceded territory: what does the law say”? Here is an excerpt:

Montreal is an unceded Indigenous territory. This is an unchallengeable fact. You can search the archives night and day, you will find no evidence to the contrary. Never did an Indigenous nation give these lands to the ancestors of the non-Indigenous Canadians.

Indeed, what really happened was quite different. When Jacques Cartier made his first visit, having erected his cross at Gaspé, and when de Maisonneuve et Jeanne Mance first began settling the island, they didn’t ask for anyone’s permission. They unilaterally decided to take possession of these lands as if they had been unoccupied.

Already the following year [i.e. after the foundation of Montreal], the Guardians of the Eastern Gate of the Haudenosaunee Confederation (i.e. the Mohawk) set out on a reconnaissance mission to meet the new French settlers. A series of Iroquois raids on Ville-Marie [as Montreal was then known] follows, in an attempt to dislodge the invaders. Thus, by then, the Mohawks already occupied the Upper-Saint-Lawrence region.

Claims to the effect that these lands were unoccupied are rooted in the discovery myth, also known as the terra nullius doctrine.

Of course, there is a debate as to which Indigenous people occupied the territory of the island of Montreal. Anichinabé, Mohawk, Abénaki and other Indigenous nations may have done so at one point or another in their history. The island may have served as a gateway or a shared space. But this debate (which the nations concerned should settle themselves) takes nothing away from the fact that Indigenous peoples were present on the island before any of those whose ancestors got off a boat.

This gets any number of things wrong. The op-ed purports to answer the question “what does the law say?”. But as a matter of positive Canadian state law, the 2005 companion cases of Marshall and Bernard suggest that, in order to claim Aboriginal title to a territory, an Indigenous group must have occupied it exclusively (and “sufficiently”) at the moment of the British assertion of sovereignty. So far as Montreal is concerned, the relevant time is that of the Treaty of Paris and the Royal Proclamation: 1763. Yet at that point, the island of Montreal was not occupied by any Indigenous people in the necessary way.

Moreover, it is pointless to look for a cession in an area where, as a matter of fact, European settlement only occurred outside the territories occupied by Indigenous peoples ― as seems to have generally been the case in New France (see Michel Morin and also Sylvio Normand’s writings). Thus, even if we were to ignore the importance of the British assertion of sovereignty in Canadian law, and set the relevant time earlier, back to French settlement of Montreal, still it would be fruitless to look for cession or to describe this territory as “unceded”.

And furthermore, while French public law and treaties were not given effect by British and then Canadian law following the conquest of New France (see the 1996 Côté case), it is important to understand that France never applied to the terra nullius doctrine to the Indigenous peoples. Rather, alliance treaties were concluded with them. And, so far as international law was concerned, this doctrine was rejected by the Pope as early as 1537. The weight of the scholarly opinion was also against it.

Lastly, we must come back to two key historical facts. First, it is far from a given that the present-day Mohawk are the descendants of the Saint-Lawrence Iroquois, who had dispersed by 1580 (John P. Hart, Jennifer Birch and Christian Gates St-Pierre). And second, however that may be, and whatever the history of the Iroquois and Mohawk presence in the “Upper-Saint-Lawrence region” ― a region vastly larger than the island of Montreal alone ― the island itself was seemingly not occupied by the time of French settlement in 1642, let alone British conquest.

One final thing: let me point the reader to a series of posts (here, here, here, here and  here) over at À qui de droit on the myth of the “discovery doctrine”.