Doctrine of Discovery

What is the Doctrine of Discovery?

Bruce McIvor, lawyer, historian, partner at First Peoples Law LLP answers this question:

“The Doctrine of Discovery is a legal principle that European countries extinguished Indigenous sovereignty and acquired the underlying title to Indigenous Peoples’ lands upon ‘discovering’ them. 

The Doctrine of Discovery is inspired by racist 15th century papal bulls dividing up “uncivilized” Indigenous lands for European powers. It became a legal principle through United States Supreme Court decisions of the 1820s and 1830s (the “Marshall Decisions”). It made its way into Canadian law in the 1880s through the St. Catherine’s Milling decision.

While it has been repudiated around the world, the Supreme Court of Canada has grounded its interpretation of section 35 of the constitution on the dubious and racist legal principles that underlay the Doctrine of Discovery. The often-used phrase ‘assertion of Crown sovereignty’ is a Canadian euphemism for the Doctrine of Discovery.

The continued centrality of the Doctrine of Discovery to modern Canadian Aboriginal law is the source of many Indigenous people’s rejection of the Canadian legal system and government policies on ‘reconciliation’.”

Indigenous Values Initiative, “What is the Doctrine of Discovery?,” Doctrine of Discovery Project (30 July 2018)

Recent articles about the Doctrine of Discovery:

Why Pope Francis faces calls to revoke the Doctrine of Discovery (Globe and Mail)

Why Revoking the Papal Bulls is Necessary by Bruce McIvor (CBA/ABC National)

The Doctrine of Discovery explained and what would happen if the Pope revoked it (National Post)

Talks by Bruce McIvor explaining “Why Reconciliation Fails”


Truth and Reconciliation Report Calls to action

Document: Truth and Reconciliation Commission of Canada: Calls to Action

 

Action 49 explicitly asks religious denominations to repudiate the Doctrine of Discovery

 

UUA resolution to repudiate the Doctrine of Discovery

https://www.uua.org/action/statements/doctrine-discovery

A list of faith communities that have signed on in Canada and the US, can be found here:

https://doctrineofdiscovery.org/faith-communities/

 

Moving from Doctrine of Discovery to
Doctrine of Reconciliation

A Quote from:
ASSEMBLY OF FIRST NATIONS, Dismantling the Doctrine of Discovery, January 2018

“It is essential to ensure a paradigm that is truthful about the history of past relations between First Nations and settlers. We must ensure a just process for resolution of outstanding issues of land rights, consistent with our right of self-determination. Such a framework is essential for advancing the reconciliation process between First Nations and non-Aboriginal Canadians. Everyone must recognize that Indigenous Peoples in sovereign nations occupied the land before contact. Settlers are not
expected to surrender occupation of lands they live on and return to their ancestral countries of origin. We are all here and must live together.”

Watch video below to hear
Senator Murray Sinclair and others talk about the way forward.

Read the article below by Senwung Luk, Aboriginal Rights and Title lawyer at Olthuis Kleer Townshend LLP.

Ditching the doctrine of discovery (and what that means for Canadian law)

Other Videos about the Doctrine of Discovery: