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Call to Action # 47: Royal Proclamation and Covenant of Reconciliation (45-47)

Doctrine of Discovery is a ‘legal fiction,’ but revoking it won’t herald immediate changes, experts say

July 29, 2022

APTN: The principle is entrenched in Canadian and U.S. law and may be a challenge to dismantle.

Doctrine of Discovery

Chelsea Brunelle, left, her mother Kim and Sarain Fox hold up a banner calling on the Pope to rescind the Doctrine of Discovery outside the cathedral in Sainte-Anne-de-Beaupré, Que. Photo: Emelia Fournier/APTN. 

Pope Francis and his entourage of Vatican officials on their week-long Canadian pilgrimage have faced mounting pressure to renounce, repudiate and revoke something scholars increasingly describe as a legal fiction rooted in imperial ideology: the Doctrine of Discovery.

For centuries, this doctrine justified the seizure and dispossession of Indigenous territories and nations all over the world. Canadian judges have based their country’s sovereignty claims on it for 134 years. While experts say a public papal renunciation won’t bring major domestic legal changes overnight, it will provide an impetus for lawmakers and judges to change their thinking.

“It’s so well entrenched in Canadian and U.S. law that retracting it will not maybe legally change the legislation recognized by Canadian courts,” explains University of Alberta law professor Tamara Baldhead Pearl, who hails from One Arrow First Nation in Treaty 6 territory.

Despite that, a repudiation “would have significant symbolic value,” and place substantial pressure on the Supreme Court. “If the Supreme Court finally acts on this pressure, then that will, at least in my opinion anyway, have a fundamental effect on Canadian state law that directly affects Indigenous people,” said Pearl. “It will force the courts to recognize Indigenous nations as sovereign, and this means that treaties will be required as a foundation of Crown sovereignty instead of the Doctrine of Discovery.”

But what exactly is the Doctrine of Discovery, why has it proved so hard to dismantle, and what could change if it was formally revoked?

Here is a look at some of those questions.

Papal bulls and the ‘enemies of Christ’

The Doctrine of Discovery is an idea rooted in a string of 15th century orders, or edicts, from the Pope called papal bulls. They were codified into modern American and Canadian law through two precedent-setting 19th century court rulings explains Anishinaabe legal expert and former appellate court judge Harry LaForme.

“It was created out of nothing, other than the papal bulls,” says LaForme. “By and large, legal scholars around the world make it clear that it’s a legal fiction, and I think it’s well known as a legal fiction.” This legal fiction originates as a set of concepts imperial European powers agreed on amongst themselves to seize, carve up and plunder non-Christian territories while converting, enslaving or murdering their inhabitants, LaForme explains.

Papal bulls were formal declarations from the Holy See about what European kings had the church’s blessing to do, and such are the directions offered by Pope Nicholas V in a 1452 papal bull titled Dum Diversas. The decree, issued to Portuguese King Alfonso, authorized the king “to invade, search out, capture, vanquish, and subdue all Saracens (Muslims) and pagans whatsoever, and other enemies of Christ wheresoever placed.” The bull further directed Alfonso to annihilate these peoples’ political dominions, reduce their inhabitants to “perpetual slavery,” and pillage all their possession for the monarch’s personal use and profit.

Doctrine of Discovery
The banner calling on the Pope to revoke the Doctrine of Discovery is unfurled during a mass led by the pontiff near Quebec City. Photo: Tom Fennario/APTN

In 1493, the Vatican issued another bull greenlighting the designs of Portugal and Spain, the latter represented by Christopher Columbus, to “discover” parts of the world hitherto unknown to Christians, and convert their inhabitants to Catholicism.

These decrees gave rise to Europeans laying claim to sovereignty over other people’s land by planting flags or crosses in the dirt and purportedly “discovering” it, LaForme says.

It doesn’t become a legal principle until 1823 via the U.S. case of Johnson v. McIntosh, a dispute between two people who acquired the same piece of land — one from the Piankeshaw Native Americans and the other from the federal government — which landed in the country’s high court.

It was here that Chief Justice John Marshall, who wrote the decision, took the papal bulls and associated doctrines and evolved what remains the highest law of the land in that country: that when the U.S. asserted sovereignty over territories it claimed, no one else had it. “That includes the Indians who were there,” explains LaForme. “In other words, they never owned the land. And it was theirs (Americans’) to discover and to claim. It followed those papal bulls.”

Marshall decided Native Americans had no right to sell their land because they didn’t own it. More than 60 years later, Canada’s highest appeal court, which was then the privy council in England, imported this principle almost verbatim. The St. Catharine’s Milling lumber ruling of 1888, which remained the leading case on Aboriginal title rights until the late 20th century, was a dispute over whether the federal or Ontario government had jurisdiction over non-reserve territory of Treaty 3.

The federal government had issued the lumber company a licence to harvest timber around Wabigoon Lake in northwestern Ontario, but the province challenged the licence, arguing it owned rights to the timber in the area.

They turned to their courts, which used the relatively new British North America Act to decide who owned the trees, and in the process endorsed the McIntosh ruling and inserted this same contention into Canadian legal precedent. “All this country was once occupied by Indian tribes,” Canada’s Supreme Court said. “On its discovery by Europeans the discoverers acquired a right of property in the soil provided that discovery was followed by possession.”

St. Catharine's milling
The original timber licence granted via order in council at centre of the St. Catharine’s Milling case. Photo: Library and Archives Canada

The ruling was handed down without, in any way, involving First Nations, who then and now oppose many of its key elements.

First, the privy council declared that Indian title, now called Aboriginal title, flowed from the Royal Proclamation of 1763, not Indigenous Peoples’ inherent rights to sovereignty.

This was the first time Canadian courts sought to define and limit Indigenous land rights, and, in the process, they examined this proclamation’s lasting legal implications for the first time as well. The British Crown hurriedly issued this 1763 royal edict following a full-on rebellion by First Nations in the lower Great Lakes region, which is known as Pontiac’s War and ended in military stalemate.

The proclamation protected First Nations lands from settler encroachment but also claimed those same territories as Crown property. It said First Nations land could only be settled after it was surrendered by treaty, ushering in a long era of treatymaking. But it remains a contentious document because it was, again, based on the Doctrine of Discovery, explains Pearl, the law professor.

“The Royal Proclamation is very controversial because some view it as almost like a magna carta of Indigenous rights here in Canada,” she says, “and others view it as a racist doctrine itself with this underlying sovereignty claim that the Indigenous people would never have agreed to if they understood what that actually meant.”

The council further declared Aboriginal title is only limited to exclusive use and occupation of land, and does not include ownership. Finally, it ruled Aboriginal title depends on the sovereign’s good will, who can unilaterally abolish that title at any time, for any reason.

While the high court tweaked these principles over the next century, they remain largely intact and identifiable in the court’s most recent landmark ruling on Aboriginal title, the 2014 Tsilhqot’in decision, LaForme explains.

Like St. Catharine’s Milling, this was a dispute about timber. While the St. Catharine’s case determined which Crown could claim jurisdiction over treaty land, Tsilhqot’in looked at who had jurisdiction over land never surrendered by treaty.

The Tsilhqot’in had long opposed clear cutting of their lands, and turned to the courts to stop it. The court eventual held the nation has good Aboriginal title, and thus jurisdiction over the trees, but the judges still argued ultimate ownership and sovereignty rests with the Crown.

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The ruling said Tsilhqot’in Aboriginal title amounts to an exclusive right to use or occupy the land for the nation’s collective benefit, but the Crown can still violate that title if it believes it has a good enough reason. “At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province,” the decision reads. “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.”

Here the judges were going out of their way to reaffirm Canada’s sovereignty using the basic principle the McIntosh case evolved from the Doctrine of Discovery.

But how? How did a foreign, colonizing power acquire underlying title to Tsilhqot’in land merely by asserting it, if not by the Doctrine of Discovery? “There is no principle of law, that I can tell,” LaForme says, “that you go to a strange land and you can just assert sovereignty over it when it’s occupied by other people.”

Kate Gunn, a partner at First Peoples Law, agrees. “There’s no cogent explanation in Canadian law for how the Crown acquired and continues to assert ownership and control,” she says.

That’s a crack in Canada’s legal foundation only now beginning to show, the experts say. Even lower court judges have started asking questions. In a January 2022 ruling, a B.C. judge essentially admitted that those who contend this regime is a fictitious colonial power grab are right. “Some argue, in my view correctly,” the judge wrote, “that the whole construct is simply a legal fiction to justify the de facto seizure and control of the land and resources formerly owned by the original inhabitants of what is now Canada.”

So what happens if it is rescinded?

The doctrine has thus proved difficult to dismantle because it was a core component of Canada’s sovereignty claim and remains central to modern rulings on Aboriginal rights and title.

Recently, Canada’s federal law on the UN Declaration on the Rights of Indigenous Peoples (C-15) denounced this doctrine in no uncertain terms, calling it and others like it “racist, scientifically false, legally invalid, morally condemnable and socially unjust” in its preambular text.

Fine words, LaForme says, but they’ll only amount to lip service until the high court adopts that position, which would require reversing more than a century of precedent. “It’s a nice statement,” he says, “but it’s not practice.”

A papal decision to name and repudiate the Doctrine of Discovery would up the pressure on Canadian judges to do just that, but it won’t in itself usher in a legal sea change, adds Gunn. “I don’t think taking that step, if the Pope had done it or if he does do it, would be like waving a magic wand in the sense that it would necessarily change the legal landscape or the issues Indigenous Peoples in Canada face overnight,” she explains.

Pope Francis
Pope Francis is gifted with a headdress by former Truth and Reconciliation Commission commissioner Wilton Littlechild following an apology in Maskwacis. Photo: APTN

“But I think it would be an important way of beginning to acknowledge the way the doctrine has been used as a tool to justify the dispossession of Indigenous Peoples from their lands for centuries, and beyond that as a tool for enabling cultural genocide in the form of residential schools.”

The Canadian Catholic bishops responded to these criticisms by statement to APTN News, saying the Pope’s apology “directly condemned many of the policies and principles that are commonly associated with the Doctrine of Discovery.”

While Francis didn’t rescind and repudiate it directly, they say they’re pressing the Vatican with the goal of issuing a new statement from the church on the issue. “The Vatican has clarified that the papal bulls associated with the Doctrine of Discovery have no legal or moral authority in the Church,” the bishops say. “However, we understand the desire to name these texts, acknowledge their impact and renounce the concepts associated with them.”

Those who spoke with APTN won’t be holding their breath.

“I think it’s a missed opportunity, and that it would’ve been really timely and important chance for the Pope and the Vatican to show some leadership on this issue,” says Gunn. “I think that, particularly given the apology that came this week, there is going to be an increased focus now on things that go beyond words into action.”

LaForme agrees.

“The U.S., South America, Australia, New Zealand, Canada, they’re all based on that same principle. I don’t think the church is likely to want to give any bad feelings to any of those countries,” he says. “I think there would be a lot of resistance to rescinding that just for that reason.”