Governments in Canada will never repudiate the Doctrine of Discovery

For weeks, one of the biggest news stories in Canada was the renunciation of the Doctrine of Discovery by the Vatican on March 30, 2023.

The Vatican unequivocally “repudiates those concepts that fail to recognize the inherent human rights of indigenous peoples, including what has become known as the legal and political “doctrine of discovery”.

Joint Statement of the Dicasteries for Culture and Education and for Promoting Integral Human Development on the “Doctrine of Discovery”, 30.03.2023

The legal concept of “discovery” was debated by colonial powers from the sixteenth century onward and found particular expression in the nineteenth century jurisprudence of courts in several countries, according to which the discovery of lands by settlers granted an exclusive right to extinguish, either by purchase or conquest, the title to or possession of those lands by indigenous peoples. Certain scholars have argued that the basis of the aforementioned “doctrine” is to be found in several papal documents, such as the Bulls Dum Diversas (1452), Romanus Pontifex (1455) and Inter Caetera (1493).

The Church is also aware that the contents of these documents were manipulated for political purposes by competing colonial powers in order to justify immoral acts against indigenous peoples that were carried out, at times, without opposition from ecclesiastical authorities.

Joint Statement of the Dicasteries for Culture and Education and for Promoting Integral Human Development on the “Doctrine of Discovery”, 30.03.2023

The primary purpose of the Doctrine of Discovery was to establish “legal” claim by the colonial powers to all newly discovered territories and the extinguishing of all rights – legal, social, economic and human – from any Indigenous people who lived on those lands. The Doctrine is embedded in Canada’s constitution and the federal, provincial and territory governments are determined to keep it that way despite the Vatican’s repudiation of the doctrine and its deadly consequences on Indigenous people all over the world.

The main sections of Bill C-15, particularly section 2, maintain the common law interpretation of section 35(1) and section 35(2) of the Constitution Act, 1982, which is heavily based on the colonial Doctrine of Discovery, which strips Indigenous people of their land ownership and land rights;

Russ Diabo, “Federal UNDRIP Bill C-15 is an attack on Indigenous sovereignty and self-determination: Opinion” APTN News

In 1867, The British North America Act established crown ownership over all the land comprising Canada at that time. The BNA Act deliberately ignored the Royal Proclamation of 1763 and the subsequent Treaty of Niagara in 1764 between the British Crown and Indigenous Nations. Both declared and honoured Indigenous rights over their lands. Between 1871 and 1877 seven numbered treaties were signed with Indigenous nations under duress caused by the collapse of the fur trade economy, rampant disease introduced by settlers flooding their territories, the disappearance of buffalo as the staple of their existence – all resulting in a severe famine.

And how did the federal government help? They used starvation as an official government policy tool to force Indigenous people off their land and onto reserves. (See “Clearing the Plains: Disease, Politics of Starvation and the Loss of Indigenous Life” by James Daschuk).

Nine years later, in 1876 the Indian Act institutionalized government policy for the displacement and ultimate erasure of Indigenous people. But 147 years later, we are still here and still fighting for what is right.

The problem is that the courts, for the most part, agree and governments do not. The courts have settled numerous land claims recently in favour of First Nations even more than 100 years after the fact. For example:

  • Ahtahkakoop Cree Nation: $43.3M from the federal and Saskatchewan governments to settle land claim from violation of 1878 treaty
  • Siksika Nation: $1.3B to settle breaking Treaty 7 and stealing almost 50% of prime Blackfoot land for settlers without any compensation
  • Williams Lake First Nation: $135M settlement 160 years after being forced off its land
  • 13 First Nations on Ontario and Manitoba: compensation for flooding their territory in 1887 and 1895 without their consent or compensation
  • Mitaanjigamiing First Nation: $84M settlement for flooding their territory in the early 1900s without their consent or any compensation
  • Peepeekisis Cree Nation: $150M to settle File Hills Farm Colony Scheme established in 1898
  • Saugeen First Nation: Treaty dispute on century-old land dispute in Sauble Beach

Now the premiers of Saskatchewan, Manitoba and Alberta are are complaining that the federal government is “stripping resource rights away from the three Prairie provinces”. They obviously have chosen to ignore all the commentary about what the repudiation of the Doctrine of Discovery really means: colonial governments were legally, socially and morally wrong to expropriate indigenous land without consent or compensation The consensus from numerous articles in the mainstream media is that the next step has to come from governments who have been the main enforcers of the Doctrine of Discovery over that last 500+ years.

But that won’t happen. Why?

  • Because six provinces are opposing Bill C-15, “An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples” in the courts: Alberta, Saskatchewan, Manitoba, Ontario, Québec and New Brunswick
  • No less than 10 of the 13 provinces and territories – BC, Alberta, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick, Nova Scotia, Yukon, Newfoundland and Labrador – are fighting Indigenous people in all levels of the court system over Aboriginal Rights and Title, Land Claims, Duty to Consult/ Free Prior and Informed Consent:
      • BC: Coastal GasLink, Tahltan Land Management, Nuchatlaht Nation title claim, Site C Dam, Cumulative Impacts Settlement, BruceJack Mine, Gitxaała Nation vs BC Mining Law, Bill 17
      • Alberta: Alberta Sovereignty Act, Duncan First Nation Cumulative Damages, Omnibus Bill 22, Métis Consultation Policy
      • Saskatchewan: Saskatchewan First Act, 2010 First Nation and Métis Consultation Policy Framework
      • Manitoba: Métis Section 35 Rights, Treaty Land Entitlements, Crown Land Auctions, Annuity Claims
      • Ontario: Grassy Narrows Mining Claims, Ring of Fire, Boreal Forests, 1492 Land Back Lane, Haldimand Tract, Building More Mines Act, More Homes Built Faster Act, Bill 97, Cumulative Impacts
      • Québec: Innu Hydro Québec lawsuit; Bill 61, Economic Recovery Bill, opening mines in Nunavik
      • Nova Scotia: Indigenous Lobster Fishery
      • New Brunswick: Wolastoqey Title Claim, Mi’kmaw Land Claim, withholding of tax revenue, Mactaquac Dam refurbishment
      • Yukon: Wetlands Policy, Territorial Consent Clause, Mayo Mining project, Regional Land Use Plans
      • Newfoundland and Labrador: Muskrat Falls Mitigation Plan
  • Supreme Court:
    • Federal Impact Assessment Act over jurisdiction (brought by Alberta plus six other provinces)
    • Beaver Lake Partial Advance Cost award (Alberta)
    • Robinson-Huron Inuit Claims (Ontario)
    • Recognition of Indigenous laws and governance (brought by Assembly of Manitoba Chiefs)
    • Lac Seul First Nation: settlement for intentional flooding to their territory ruled insufficient
    • Honour of the Crown (brought by Métis Nations of Ontario and Alberta)
  • Delgamuukw (26 years ago) and Tsilqot’in (2014) were precedent setting decisions at the Supreme Court that no level of government – anywhere – has acknowledged and accepted. The court’s ruling that Aboriginal Rights and Title exist and pre-date Confederation have consistently been ignored by virtually all levels of government. Witness the ongoing court cases listed above.

This is what Indigenous reconciliation really looks like.

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