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| Nick Leeson |
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| Tolu Kolawole |
Colonizer states have used the doctrine to justify invading and seizing Indigenous peoples’ lands and subjugating Indigenous Peoples and sovereign nations. The doctrine is based on the racist notion that simply being the first Europeans to “discover” a territory grants the government of those Europeans sovereignty and title over that territory, including over the Indigenous Peoples who belong to those lands.
The nakedness of the assertion of Crown sovereignty
In Canada, the doctrine and related concept of terra nullius formed the basis for asserting Crown sovereignty, imposing colonial laws on Indigenous Peoples and denying Indigenous sovereignty. While the Pope’s long overdue repudiation of the doctrine is a welcome first step in challenging and undermining the Crown’s claim of sovereignty, it falls woefully short of accountability.
The Vatican’s statement ignores the church’s active institutional role in assimilative policies by stating that the papal declarations “were manipulated for political purposes” and deflects responsibility onto individuals and the “government authorities of the time.”
Repudiation takes more than words. Accountability in the form of direct actions by the church, such as returning sacred objects and church lands on Indigenous territories in Canada, would make the statement more meaningful.
There was never a legitimate basis to seize and assert control of Indigenous lands, or to strip Indigenous Peoples of their rights and sovereignty. Despite modern rejection of the doctrine and its related concepts for their racist, dehumanizing and exploitative foundations, far too little has been done to repair the damage done to Indigenous Peoples. While it can be unsettling for non-Indigenous people to realize that the very foundation of Canada’s claims to land are based on an invalid racist policy, dismantling colonialism demands not only recognizing the truth but actively working to correct the lies.
Pope’s repudiation presents renewed opportunity for reconciliation
The church’s statement represents a new opportunity for renewed commitment to address the injustices faced by Indigenous Peoples who are still suffering the consequences of the doctrine’s application through the Crown’s assumption of sovereignty. The doctrine’s centrality in modern Canadian Aboriginal law is the source of many Indigenous Peoples’ rejections of the Canadian legal system and government policies on “reconciliation.” To achieve transformative change, the Crown must actively seek to make amends for the effects of the doctrine on Indigenous Peoples’ sovereignty, rights and sacred, lawful obligations to the land.
For these reasons, the Truth and Reconciliation Commission of Canada: Calls to Action sought outright rejection of the doctrine and reformation of all laws, policies and governance structures that rely upon such concepts. Calling for the adoption and implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as the framework for reconciliation is a part of this.
UNDRIP pushes back on the doctrine and calls on states to establish effective mechanisms to redress any action that has the aim or effect of dispossessing Indigenous Peoples of their lands, territories and resources. Notably, the federal government and the province of British Columbia have already passed legislation for implementing UNDRIP into their laws. Recently, the territorial government of the Northwest Territories introduced legislation to begin implementing the declaration into their territorial laws.
In a similar vein, the Assembly of First Nations of Canada recommends that Canada take concrete steps for remedying the damage caused by the Doctrine of Discovery, including:
a. Acknowledging the consequences of it on Indigenous Peoples;
b. Rejecting it, and examining in collaboration with First Nations how Canadian history, laws, practices and policies have relied on it;
c. Repudiating all doctrines of superiority in a legislative framework for implementation of UNDRIP;
d. Reinterpreting Canadian law in a manner consistent with UNDRIP;
e. Ensuring that violations of the First Nations’ right to lands, territories and resources taken without their free, prior and informed consent are effectively redressed; and
f. Ensuring that the doctrine is not used in any way in contemporary court cases or negotiations.
b. Rejecting it, and examining in collaboration with First Nations how Canadian history, laws, practices and policies have relied on it;
c. Repudiating all doctrines of superiority in a legislative framework for implementation of UNDRIP;
d. Reinterpreting Canadian law in a manner consistent with UNDRIP;
e. Ensuring that violations of the First Nations’ right to lands, territories and resources taken without their free, prior and informed consent are effectively redressed; and
f. Ensuring that the doctrine is not used in any way in contemporary court cases or negotiations.
Ushering in an era of transformative change
Rejection of the doctrine is hollow without steps to correct the wrongs committed in its name. Reconciliation is not about being a spectator, but actively making change and encouraging the same from others. Those who have carried out and benefited from damage done under the guise of the doctrine must hold themselves and each other accountable and commit to the process of establishing and maintaining relationships of respect and trust with Indigenous Peoples.
In not calling on governments and others to make amends through meaningful action, the church’s renunciation missed the mark. But we need not rely on the church to complete the process of undoing the deception of terra nullius and the denial of Indigenous sovereignty.
As with UNDRIP, redressing historical injustices to Indigenous Peoples requires a collective commitment and the continued leadership of Indigenous Peoples. Such an approach will support the renewal of treaty federalism and move forward an agenda for transformative change in partnership with Indigenous Peoples. This must include fundamental changes to Canadian law and dismantling colonial structures.
Denouncing the doctrine could be a positive move toward breaking down existing legal concepts and approaches and exposing their invalidity. It presents us with a chance to substitute beliefs based on the denial of Indigenous sovereignty and rights with those designed to actively promote their advancement.
Let’s hope that the March 30 announcement is the first step towards realizing the possibilities of a fairer, better Canada for all of us.
Nick Leeson is a senior counsel with Woodward & Company LLP, a law firm located in Victoria, BC and Whitehorse, YK. His practice is based out of British Columbia, from where he represents Indigenous clients and interests from coast-to-coast-to-coast. Tolu Kolawole practises from the Victoria office of Woodward & Company, representing Indigenous clients and interests in the areas of Aboriginal title and rights litigation.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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