The Doctrine of Discovery and Terra Nullius
Reconciliation is important. “[It] is about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country. In order for that to happen, there has to be awareness of the past, an acknowledgment of the harm that has been inflicted, atonement for the causes, and action to change behaviour.” One of the critical aspects of Canadian institutions that must change is the continued belief in the Doctrine of Discovery and the concept of terra nullius.
The Doctrine of Discovery was the principle used by European colonizers starting in the 1400s in order to stake claim to lands beyond the European continent. The doctrine gave them the right to claim land that was deemed vacant for their nation. Land was considered terra nullius (vacant land) if it had not yet been occupied by Christians. Such vacant lands could be defined as “discovered” and as a result sovereignty, title and jurisdiction could be claimed. In doing so the Doctrine of Discover invalidated the sovereignty of Indigenous nations and gave Christians the right to subjugate and confiscate the lands of Indigenous Peoples.
Following Columbus’ voyage in 1492, which resulted in Europe learning of the existence of the Americas, Pope Alexander VI issued the first of four orders (referred to as “papal bulls”) which would together become the Doctrine of Discovery. This order gave the majority of North and South America to Spain, which had made the first “discovery.” While most other European powers disagreed with the surrender of such large expanses of land to the Spanish they agreed with the idea of being able to claim land for their nations by “discovering” “new” lands. These European powers simply redefined what qualified as discovery and what was required in order to claim lands for a specific nation shaping the principles which would come to be known as the Doctrine of Discovery.
This doctrine was used by the Spanish, Portuguese and English, among others, as a framework for the colonization of many places including regions of Africa and the Americas. It claimed that the presence of Indigenous Peoples on lands did not prevent them from being terra nullius by arguing that the Indigenous communities occupied the lands but did not own them by European definitions of ownership. These principles of terra nullius were adopted to varying degrees into the legal frameworks of colonized countries across the world and continue to impact the rights of Indigenous Peoples across the world.
The Doctrine of Discovery and terra nullius in Canada
The Supreme Court of Canada stated in 2014 that “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 of 1763.” Nonetheless, the Doctrine of Discovery has influenced court rulings in Canada and the ways in which Aboriginal titles are defined. Rulings influenced by the Doctrine of Discovery include St. Catherine's Milling and Lumber Company v. The Queen, and Tsilhqot’in Nation v. British Columbia. Furthermore, when Indigenous communities challenge the Crown’s title to lands, the government and courts claim the “underlying title” of the Crown as the basis of their ownership of these lands. This underlying title simply being the Doctrine of Discovery put into practice.
The reality is that beyond the legal context, the principles of terra nullius continue to influence the ways in which society operates, a prime example being the Canadian parks system. Wilderness has often been defined as terra nullius resulting in land being claimed for parks without regard for the Indigenous communities that will be displaced as a result. Two specific cases include the creation of the Kluane Game Sanctuary and Jasper National Park. In 1948, the Kluane Game Sanctuary was created, resulting in the violent separation of the Champagne and Aishihik First Nations and the Kluane First Nations from their traditional lands. Similarly, in 1910, the creation of Jasper National Park caused 25 First Nations Groups to be expelled from the park with limited compensation. The Canadian government and Canadian society claim to be against the Doctrine of Discovery and the principles it stands for, and yet continue to act in line with these ideas.
The Doctrine of Discovery enabled the colonization of lands across the globe to happen within the boundaries of colonizing countries' laws. It persists to this day in many forms and continues to shape legal and political decisions that infringe on the rights of Indigenous Peoples. Because of this, Call to Action 47 of the Truth and Reconciliation Commission of Canada states “We call upon federal, provincial, territorial, and municipal governments to repudiate concepts used to justify European sovereignty over Indigenous peoples and lands, such as the Doctrine of Discovery and terra nullius, and to reform those laws, government policies, and litigation strategies that continue to rely on such concepts.” The repudiation of these documents will enable a shift to be made within Canadian institutions so that Indigenous rights are better protected and honoured and reconciliation can become institutionalized.
Sources:
https://www.ictinc.ca/blog/indigenous-title-and-the-doctrine-of-discovery
https://www.afn.ca/wp-content/uploads/2018/02/18-01-22-Dismantling-the-Doctrine-of-Discovery-EN.pdf
https://sciencepolicy.ca/wp-content/uploads/2020/10/CSPC_Magazine_2019-Optimized.pdf (page 38)
https://ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Principles_English_Web.pdf
https://ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Calls_to_Action_English2.pdf
