The Doctrine of Discovery and Papal Bulls- Not Worth the Papal They’re Written On

In a recent CBC opinion column a writer wrote that Canada must “disavow the Doctrine of Discovery” that he asserts provides the flawed basis for Britain and then Canada  asserting sovereignty over Canada’s Aboriginal peoples.

For Britain, the original “legal” justification for the exploration of Canada, (assuming without agreeing that any was required), was the Vatican-based  Letters Patent issued by King Henry VII to the explorer John Cabot in 1496, by which Cabot was authorized to “subdue, occupy and possess” all the lands he discovered.

If any international “law” doctrine is needed to justify the status quo in Canada today it would not be the “Doctrine of Discovery” or any Papal Bull.  It would be this later Letters Patent. When Britain began its colonization of North America in the early 1600’s its ties to the Pope had long been severed.

What motivated the British to sail to North America was what has motivated all of humanity since perpetually migrating man first walked out of Africa 100,000 years ago: such happenings as overpopulation, resource scarcity. poverty at home, the exigencies of war, trade, expansionist and proselytizing urges, and even things like simple curiosity and desire for adventure.

Great Britain’s real international law justification for colonizing Canada is the simple, age-old law of conquest, an accepted principle of international law, which the word “subdue” in the Letters Patent reflected, the two conditions of which are, firstly,  physical dominion and control acquired by the conquering nation over the nation or tribe conquered, and secondly, the conquest being accepted by the international community. In the case of Canada, certainly by the end of the 19th century those conditions as they affected our Aboriginal peoples had been satisfied.

The conquest need not be military in nature. It can be peaceful, social, cultural, technological and economic domination, essentially acquiesced in by the Aboriginal peoples of the day, which was the case with Canada.

As Professor Tom Flanagan wrote in First Nations? Second Thoughts,[1]by the late 19th century, “the Indians had become subject de facto to the sovereignty of the Crown. They knew it and everybody else knew it at the time.” The treaties deliberations at that time, and the treaties themselves, confirmed this. The Queen was frequently referred to as “the Great Mother” and the Indians as her “children”. The pathos-filled inevitability of the situation was illustrated by the realistic statement of a Cree Chief prior to the signing of Treaty No. 6 at Fort Carlton in 1876, on the banks of the Saskatchewan River. Pointing to the river, he said: “No more can you stop the flow of that river than you can stop the progress of the Queen’s Chief.” [2]

The treaties themselves contained several standard provisions that presumed the absolute sovereignty of the Crown, including explicit land surrender wording, and the Indians’ promise to “conduct themselves as good and loyal subjects of the Queen.” Aboriginals regard treaty promises as sacred. One can’t be a loyal subject of the Crown of Canada and at the same time assert that one is a member of a separate, independent, sovereign nation.

If the Doctrine of Sovereignty, or the Papal Bulls that preceded it, were ever relevant, that relevance ended centuries ago. Now these things are empty, abstract, straw man, word constructs, without any relation to present, practical life.

Focussing on these irrelevant abstractions distracts Canadians from the terrible social conditions  on and off First Nations reserves, as well described by Tanya Talaga in Seven Fallen Feathers, which should be the focus of everyone.

The Doctrine of Discovery, Papal Bulls, and Papal apologies are all irrelevant, red herring, “castle in the air” issues.  Focussing on them will do nothing to improve the lives of Aboriginal Canadians in 21st century Canada.

“Castles in the air do not require very rigid foundations; their enchantment lies in the fact that they are built on almost nothing.”[3]

Peter Best

April 6th, 2022

[1] McGill-Queen’s University Press, Montreal-Kingston, 2008

[2] From, Alexander Ross, The Treaties of Canada with the Indians, originally published in 1862, facsimile edition reprinted by Coles Publishing Company, Toronto, 1979

[3] From Patrick Leigh Fermor’s essay, Mani, in Words of Mercury, John Murray (Publishers) London, 2003

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