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The Doctrine of Discovery

There was a cataclysmic change in rights of Indigenous Peoples when the Crown assumed sovereignty1 in Canada. Sovereign rights of Indigenous Peoples and nations were usurped and replaced by Crown rights. This was done through the Doctrine of Discovery and the doctrine of Terra Nullius.2

1. The Doctrine of Discovery allowed the Crown to claim sovereignty over Indigenous Peoples and land by holding that Indigenous Peoples cannot claim ownership of land. It does concede a restricted title (an ‘Aboriginal title’) to rights of occupation and land use;3 and,

2. The legal doctrine of Terra Nullius, land that is legally deemed to be unoccupied or uninhabited,4 allowed for the Crown to grant land to its colonial interests, including 70-80% of Canada’s land mass to the Hudson Bay Company.5

The Doctrine of Discovery finds its root in the 1455 papal bull Romanus Pontifex of the Roman Catholic Church.6 Pope Nicholas V authorized the conquest and enslavement of non-Christian Indigenous Peoples for the purposes of land acquisition and profit from natural resources.7

Terra Nullius finds its legal root in eighteenth century European law, but the concept was used to justify the right to colonize Indigenous lands throughout the sixteenth to twentieth centuries.8

The Report of the Royal Commission on Aboriginal Peoples (1996) determined the concepts of  the Doctrine of Discovery and Terra Nullius were factually, legally, and morally wrong.9 The Commission stated that these two concepts are the impediments to Indigenous Peoples assuming their rightful place in Canada.

The 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)  recognizes that doctrines such as the Doctrine of Discovery are not legally valid.10 and that the continuation of colonialism is a crime which violates the Charter of the United Nations.11

The Supreme Court of Canada’s Tsilhqot’in decision (2014) dismissed the argument Canada was Terra Nullius at the time of discovery.12 However, the Supreme court of Canada left the Doctrine of Discovery in place by granting the Tsilhqot’in Peoples the sovereignty-restricted ownership of ‘Aboriginal title’ to their traditional lands.

The 2015 report of the Truth and Reconciliation Commission of Canada (TRC) called for the Government of Canada to:13

1. Adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples;and,

2. Renounce the concepts of Terra Nullius and the Doctrine of Discovery.

Without the Doctrine of Discovery, the current status quo of colonial control over Indigenous Peoples will no longer exist. Indigenous sovereignty and jurisdiction will need to be defined so that a new relationship can then be established based on the reconciliation of Indigenous sovereign rights with Crown rights.

1. St. Catherines Milling and Lumber Co. v. R., [1887] 13 SCR 577.

2. (2018) Dismantling the Doctrine of Discovery, Assembly of First Nations.

3. (2010) Reid, Jennifer. The Doctrine of Discovery in Canadian Law. The Canadian Journal of Native Studies 30(2): p335-359.

4. Oxford Dictionary.

5. (1670) The Royal Charter for Incorporating The Hudson's Bay Company, A.D. 1670.

“And whereas the said undertakers for theire further encouragement in the said designe have humbly besought us to Incorporate them and grant unto them and theire successors the sole Trade and Commerce of all those Seas Streightes Bayes Rivers Lakes Creekes and Soundes in whatsoever Latitude they shall bee that lye within the the entrance of the Streightes commonly called Hudsons Streightes together with all the Landes Countryes and Territoryes upon the Coastes and Confynes of the Seas Streightes Bayes Lakes Rivers Creekes and Soundes aforesaid which are not now actually possessed by any of our Subjectes or by the Subjectes of any other Christian Prince or State” [Emphasis Added]

6. (1455) The Bull Romanus Pontifex (Nicholas V), January 8, 1455.

7. (2010) United Nations Permanent Forum on Indigenous Issues, Ninth Session: Preliminary Study of the Impact on Indigenous Peoples of the International Legal Construct Known as the Doctrine of Discovery. Submitted by the Special Rapporteur. E/C.19/2010/13 at para. 9 & 15.

Para. 9.  “The papal bull Romanus Pontifex, issued in 1455, serves as a starting point to understand the Doctrine of Discovery, specifically, the historic efforts by Christian monarchies and States of Europe in the fifteenth and later centuries to assume and exert rights of conquest and dominance over non-Christian indigenous peoples in order to take over and profit from their lands and territories. The overall purpose of these efforts was to accumulate wealth by engaging in unlimited resource extraction, particularly mining, within the traditional territories of indigenous nations and peoples. The text of Romanus Pontifex is illustrative of the doctrine or right of discovery. Centuries of destruction and ethnocide resulted from the application of the Doctrine of Discovery and framework of dominance to indigenous peoples and to their lands, territories and resources.” [Emphasis added]

Para. 15. “Pope Nicholas authorized King Alfonso to assume and take control over non-Christian lands because the Holy See “had formerly … [for example, in the bull Dum diversas of 1452] granted among other things free and ample faculty to the aforesaid King Alfonso — to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and [the right] to convert them [those things] to his and their use and profit …”. This “faculty” granted by the Holy See to King Alfonso to “apply and appropriate to himself” the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods, is a papal licence for the forced taking of all indigenous lands and territories in the regions located, and to engage in unlimited resource extraction for the monarch’s “use and profit”. In this context, the secular meaning of “convert” is “to appropriate dishonestly or illegally that which belongs to another”. To make the forced appropriation seem “lawful” and “right”, Pope Nicholas declared that because the Apostolic See had previously issued the “faculty”  to engage in such work, and because the king had thereby “secured the said faculty”, “the said King Alfonso … justly and lawfully has acquired and possessed, and doth possess, these islands, lands, harbours, and seas, and they do of right belong to … the said King Alfonso and his successors…”.” [Emphasis Added]

8. (2007) Fitzmaurice, A., The Genealogy of Terra Nullius, Australian Historical Studies 129: p. 1-15.

9. (1996) Report of the Royal Commission on Aboriginal Peoples. Canada Communication Group — Publishing, Ottawa, Ontario K1A 0S9. Rec. 1.16.1 & 1.16.2.

“The Commission recommends that:

1.16.1 To begin the process, the federal, provincial and territorial governments, on behalf of the people of Canada, and national Aboriginal organizations, on behalf of the Aboriginal peoples of Canada, commit themselves to building a renewed relationship based on the principles of mutual recognition, mutual respect, sharing and mutual responsibility; these principles to form the ethical basis of relations between Aboriginal and non-Aboriginal societies in the future and to be enshrined in a new Royal Proclamation and its companion legislation (see Volume 2, Chapter 2).

1.16.2 Federal, provincial and territorial governments further the process of renewal by

(a) acknowledging that concepts such as terra nullius and the doctrine of discovery are factually, legally and morally wrong;

(b) declaring that such concepts no longer form part of law making or policy development by Canadian governments;

(c) declaring that such concepts will not be the basis of arguments presented to the courts;

(d) committing themselves to renewal of the federation through consensual means to overcome the historical legacy of these concepts, which are impediments to Aboriginal people assuming their rightful place in the Canadian federation; and

(e) including a declaration to these ends in the new Royal Proclamation and its companion legislation.” [Emphasis Added]

10. (2007) United Nations General Assembly, Sixty-First Session: United Nations Declaration on the Rights of Indigenous Peoples, Preamble.

“Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust,” [Emphasis Added]

11. (2014) UN Economic and Social Council, Permanent Forum on Indigenous Issues; Thirteenth Session: A Study on the impacts of the Doctrine of Discovery on Indigenous Peoples, Including Mechanisms, Processes and Instruments of Redress, with Reference to the Declaration, and Particularly to Articles 26-28, 32 and 40, at para. 6. E/C.19/2014/3

6. “The UN General Assembly has indicated that the continuation of colonialism is “a crime which constitutes a violation of the Charter of the United Nations ... and the principles of international law”. Colonial-era doctrine cannot continue to oppress and impoverish generations of indigenous peoples and to deny them jurisdiction to exercise their indigenous laws and legal orders.”

12. Tsilhqot’in Nation v. British Columbia, [2014]  SCC 44, at para. 69.

Para. 69. … “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 (1763), R.S.C. 1985, App. II, No. 1. 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.” [Emphasis Added]

13. (2015) Truth and Reconciliation Commission of Canada: Calls to Action, at para 45. i & ii.

45. “We call upon the Government of Canada, on behalf of all Canadians, to jointly develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown. The proclamation would build on the Royal Proclamation of 1763 and the Treaty of Niagara of 1764, and reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown. The proclamation would include, but not be limited to, the following commitments:

i.  Repudiate concepts used to justify European sovereignty over Indigenous lands and peoples such as the Doctrine of Discovery and terra nullius.

ii. Adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.” [Emphasis Added]

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