In March 2023, the Vatican formally rejected the Doctrine of Discovery — finally heeding the calls of Indigenous advocates worldwide, including here in Canada. But what actually is the doctrine, and why does it matter?
How the Doctrine of Discovery came to be
Métis lawyer Bruce McIvor describes the doctrine as the “fundamental lie that non-Indigenous people can show up, plant a flag, and claim a right to own the land and displace Indigenous laws over the land.” It was initially set out in a series of papal bulls — written decrees from the pope. These 15th-century declarations gave Christian nations the religious authority to claim the land and resources of non-Christians. It amounted to the Catholic Church “dividing up of the world,” says McIvor.
They were built on the concept of terra nullius¸ or “nobody’s land.” Essentially: Indigenous peoples were considered not worthy of land ownership, so the land was free to claim. “It’s one of the biggest frauds that ever was perpetrated on people,” says retired Anishnaabe judge Harry LaForme. “And it’s not just in Canada or the United States. It’s all over the world. The Doctrine of Discovery was evil from the beginning, and it’s still evil today. That’s taken the soul out of indigenous people when you take their land.”
A declaration becomes law
But papal bulls from the 1400s are not legally binding in perpetuity. “It’s a legal fiction. It’s not law,” says LaForme. “It’s akin to a country going in and sprinkling magic dust over something — and that gives them ownership to it.”
According to Pam Palmater, the chair in Indigenous governance at Toronto Metropolitan University, “while the papal bulls didn’t directly create a legal doctrine, it became a legal doctrine through various court cases in the United States.”
The 1823 case of Johnson v. McIntosh, heard by the United States Supreme Court, was a dispute focused on a tract of land allegedly sold to Thomas Johnson by a Native American tribe. The U.S. later sold that same piece of land to William McIntosh. Chief Justice John Marshall ruled against Johnson on the grounds that the U.S. owned the land. The thinking went: Johnson could not have purchased the land from a Native American tribe, as the tribe did not own the land to begin with. “And [Marshall] stumbles on this Doctrine of Discovery,” says LaForme. “And he uses that as a legal principle and says the Indians never had anything to sell in the first place.”
“It’s this racist principle that comes from the Catholic Church that was formulated in the U.S. Supreme Court, and then it was adopted by Canadian courts,” says McIvor.
U.S. law enters the Canadian courts
Three major court cases shaped Canada’s use of the logic of the Doctrine of Discovery. The first is that of St. Catharine’s Milling and Lumber, in the 1880s, which involved a dispute over logging rights in northwestern Ontario. The highest court of appeal at the time ruled that Indigenous interests in the land existed only by the grace or goodwill of the Crown. While neither the Doctrine of Discovery nor Johnson v. McIntosh is explicitly mentioned in the case of St Catharine’s Milling, legal scholars say the U.S. case heavily influenced the decision.
In 1967, Nisga’a elder Frank Calder (along with other tribal leaders) claimed the Nisga’a never extinguished its title to land in British Columbia. The case went to the Supreme Court. While Calder lost the case, the decision recognized Aboriginal title in Canadian law for the first time. “However, it’s something less than full ownership. The Crown has underlying title,” says Palmater, who is Mi’kmaq.
Then in 2014, in the Tsilhqot'in case, the Supreme Court of Canada declared that 1,700 kilometres of land belonged to the Tsilhqot'in Nation. It was the first time that the Supreme Court of Canada had declared Aboriginal title to a specific parcel of land. The ruling gave the First Nation exclusive right to the use of the land and any benefits and profits derived from it.
“The Supreme Court of Canada officially denounced that there was any concept of terra nullius,” says Palmater. “However, that’s not the end of the story, because if you take all the case law in Canada that deals with Indigenous land rights, aboriginal rights, treaty rights, any rights whatsoever, you always see the Supreme Court of Canada (or any other court) support this idea that Canada, of course, naturally has title, naturally has sovereignty over all these territories.”
“What we have is something less,” she adds. “We have the right to use it, to occupy it — but never that underlying title. It’s always presumed to be vested in the Crown.”
“The St. Catharine’s milling case means as much today as it did when they first decided it in 1888,” says LaForme.
Legacy and repudiation
“Lots of Indigenous peoples, especially those that went to Indian residential schools, have been lobbying the Pope for a long time to rescind the papal bulls,” says Palmater.
Those advocates made their voices heard when Pope Francis visited Canada in 2022. In 2023, he acted on that demand.
“I think it’s important politically,” says Palmater. “Keep in mind, the Catholic Church ran the majority of Indian residential schools here in Canada. That’s important for people’s healing.”
Pope Francis claimed that it was never the Catholic Church’s intention that anyone would go and claim lands or create legal doctrines based on the papal bulls. “With all due respect, I don’t think that’s the case,” Palmater says. “You don’t send Europeans to go forth and steal lands unless you actually mean it.”
What comes next
With the papal bulls rescinded, focus can turn to the future. “What’s the impact in law? Nothing,” says Palmater.
“We need to change our own laws.”
“Non-indigenous people say, ‘Oh, my family’s been here for two generations, three generations,’” says McIvor. “That’s nothing compared to the Indigenous people, who have been on those lands for thousands of years. That history ends up being denied and devalued. And then it puts Indigenous people on a back foot, because they’re forced to go into a Canadian court, into a colonizer court, to defend themselves … That is, unfortunately, the basis of the relationship between Canadian law and Indigenous people.”
But is Canada ready to completely rethink land ownership across North America? “The United States and Canada don’t want to do this,” says LaForme. “This is absolutely fundamental to their ownership of all the land. They’re not going to give that up easily."
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