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The Doctrine of Discovery and Reconciliation: What's the Next Step?

Tansi Nîtôtemtik,

On September 8th, 2022, Queen Elizabeth II passed away at the age of ninety-six after a reign of more than seventy years. Although many individuals from the U.K. and from around the Commonwealth are sending their condolences, others feel conflicted as they reflect on the tragedy and strife that the monarchy caused in places like Canada, the United States, Australia, and New Zealand.

There is no contesting that the relationship between Indigenous people and the Crown is complicated. Though some Indigenous people see the Crown as a symbol of the treaties, peace, and cooperation, others see the Crown as the thief of their children and culture. These feelings of anguish and distrust can be traced back to the days of colonization, and to the continued mistreatment and discrimination faced by Indigenous people today.

Following the Queen’s death, there have been calls on the Crown to renew efforts toward reconciliation.[1] Worldwide there are calls for the new King to push for reconciliation efforts, including the repudiation of the doctrine of discovery.[2]

Photo Credit: CBC News https://www.cbc.ca/news/canada/pope-francis-doctrine-discovery-indigenous-1.6536174

The doctrine of discovery emerged as a legal concept in the United States in the mid-1800s.[3] The doctrine gave ‘discovering’ European nations the right of ownership of lands previously occupied by Indigenous nations and reduced pre-existing Indigenous rights to a right of occupancy, ultimately allowing the Europeans to dispose of the land as they wished.[4] This doctrine, along with other instruments like the Royal Proclamation of 1763, essentially granted underlying title of all lands to the Crown.[5] Although this doctrine has since been criticized as being deeply flawed,[6] it was adopted by the Supreme Court of Canada and has influenced many Aboriginal title and rights cases.[7]

The call for the renunciation of the doctrine has been codified in The Truth and Reconciliation Commission Call to Action #47. It is difficult to say for certain what the effects of the renunciation may have. The doctrine is deeply entrenched in Canadian law and is “a core component of Canada’s sovereignty claim.”[8] I believe that casting a critical eye to the doctrine, and pushing for its renunciation can, if nothing else, be an incredibly important first step in moving through the journey of reconciliation.

Even if abandoning the doctrine has no concrete effects in Canadian law right away, the symbolic significance of the action could bode well for the relationship between the Crown and Indigenous people worldwide.[9] The renunciation would signify the understanding that the Crown recognizes that the doctrine was “racist, scientifically false, legally invalid, morally condemnable and socially unjust”,[10] and could pressure Canadian courts to take a critical look at how we understand the validity of Aboriginal title in our country.

In summary, the renunciation of the doctrine of discovery by King Charles III would be an important symbolic gesture and could be an early step in the journey of reconciliation in Canada.

Until next time,

Team Reconcili-ACTION YEG

[1] “With death of Queen Elizabeth, Indigenous people reflect on often difficult relationship with the Crown” (11 September 2022), online: CBC News <https://www.cbc.ca/news/canada/manitoba/first-nations-relationship-with-crown-1.6578321>. [2] “First Nations Leadership Council calls on King Charles to renounce the Doctrine of Discovery as first act” (10 September 2022), online: CBC News <https://www.cbc.ca/news/canada/british-columbia/indigenous-communities-bc-monarchy-reconciliation-queens-death-1.6578284>. [3] Johnson v M’Intosh, 21 US (8Wheat) 543, 5 L Ed 684 (1823). [4] Kent McNeil, “The Doctrine of Discovery Reconsidered: Reflecting on Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies, by Robert J Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg, and Reconciling Sovereignties: Aboriginal Nations and Canada, by Felix Hoehn” (2016) 53:2 Osgoode Hall LJ at 703-705. [5] Kent McNeil, “The Source, Nature, and Content of the Crown’s Underlying Title to Aboriginal Title Lands” (2018) 96:2 Can Bar Rev at 289. [6] Supra note 4 at 711. [7] Ibid at 715. [8] Brett Forester, “Doctrine of Discovery is a ‘legal fiction’, but revoking it won’t herald immediate changes, experts say” (29 July, 2022), online: APTN National News <https://www.aptnnews.ca/national-news/doctrine-of-discovery-is-a-legal-fiction-but-revoking-it-wont-herald-immediate-changes-experts-say/>. [9] Jessica Mundie, “The Doctrine of Discovery and what would happen if the Pope revoked it” (30 July 2022), online: National Post <https://nationalpost.com/news/doctrine-of-discovery>. [10] Supra note 8.

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