Do our Indigenous people own Canada? The irrelevance of the Doctrine of Discovery

By Dr. Hymie Rubenstein

“We repudiate the Doctrine of Discovery, which asserted that lands belonged to the Christian powers that ‘discovered’ them”

The United Church of Canada, 2012. 

THERE WAS A growing chorus of hyperbolic cries that Pope Francis, head of the Roman Catholic Church, renounce the "doctrine of discovery" during his “penitential pilgrimage” to Canada in July 2022. Calls to dump the discovery notion have come from the Anglican Church of Canada, Assembly of First Nations, Truth and Reconciliation Commission of Canada, and various Indigenous leaders and activists.

The transparent motives behind this call include demands to return Indigenous lands to their rightful owners and appeals for more Indigenous sovereignty. Both are based on shaky historical evidence. The roaming bands of foragers composing most pre-contact peoples had no systems of fee simple land ownership. Even in central Canada, horticultural tribes were obliged to relocate to new territories when other resources became depleted or neighbouring groups pushed them out. As for national sovereignty, there was little recognition of unity beyond face-to-face local groups many of which merged and divided on an irregular basis.

Still, the Supreme Court of Canada stated in 2014 that “the doctrine of terra nullius [that no one owned the land prior to European assertion of sovereignty] never applied in Canada, as confirmed by the Royal Proclamation of 1763.” So if no one asserted it in the first place, what’s the motive for pretending we need to renounce it now?

Among other questionable features discussed below, the Court ruling ignored that what eventually became a united sovereign country had a tiny, scattered population compared to other regions of the world. The aboriginal settlers had at least 15,000 years to populate the northern half of the continent. Still, on the eve of European settlement there were no more than 500,000 indigenous people in what became Canada, or one person per 20 sq. km, by any reasonable definition a virtually empty land of mostly mobile hunters and gatherers. To be sure, its inhabitants faced technological and environmental challenges that limited population growth, although endemic plant and animal food shortages were not among them. But based on the relatively rapid population growth in Europe and elsewhere over the same period, it is reasonable to hypothesize that such a low population size and density can be attributed to a combination of simple Stone Age technology and inter-tribal warfare that was more lethal during the period than it was just about anywhere else, including Europe during its darkest ages.

Even the use of the term doctrine of discovery is questionable because it is not a named ancient legal or moral precept enacted to justify the age-old seizure or colonization of populated territories whether outside Europe or not. Instead, there were a series of written papal bulls beginning in 1436 awarding newly conquered non-Christian territories to one European crown or the other to avoid fights over the same lands.

But this was overturned by a Papal Bull announced by Pope Paul II in 1537. Indeed, when Pope John Paul II visited Canada in 1987, the 451th anniversary of the decree, he explicitly repeated this to Canada’s Indigenous peoples.

Other evidence shows that these papal bulls have been irrelevant for centuries. On March 5, 1496, King Henry VII of England granted letters patent to John Cabot and his sons to investigate, claim, and possess any new lands anywhere in the world so long as they did not intrude on Spanish or Portuguese territories. This included the whole of what is now Canada:

"Be it known and made manifest that we [the King] have given and granted … to our well beloved John Cabot … full and free authority … to sail to all parts, regions and coasts of the eastern, western and northern sea, under our banners, flags and ensigns … to find, discover and investigate whatsoever islands, countries, regions or provinces of heathens and infidels, in whatsoever part of the world placed, which before this time were unknown to all Christians. … And that the before-mentioned John and his sons or their heirs and deputies may conquer, occupy and possess whatsoever such towns, castles, cities and islands by them thus discovered that they may be able to conquer, occupy and possess, as our vassals and governors lieutenants and deputies therein, acquiring for us the dominion, title and jurisdiction of the same towns, castles, cities, islands and mainlands so discovered…."

Thirty-eight years later in 1534, the French explorer Jacques Cartier, acting on behalf of King Francis I, nullified both the papal bulls and Henry VII’s Letters Patent by claiming Canada for the French monarchy.

The story of the institutionalization of the conquest did not end there. Also in 1534, the Roman Catholic papal bulls were pushed further down the dustbin of history by the Act of Supremacy that declared King Henry VIII Supreme Head of the Church in England, replacing the Pope. No Pope, no papal bulls.

But perhaps the most critical piece of post-contact legislation that further entrenched conquest was the Royal Proclamation of 1763 enacted following the Seven Years' War between Great Britain, France, and Spain for global supremacy, a war won by Great Britain.

Sometimes called "The Indian's Magna Carta," the Proclamation is still subject to much debate and expansive reinterpretation by Indigenous activists and law-making judges as in the Tsilhqot’in Nation v. British Columbia case. This is because the Proclamation’s plain meaning is that pre-existing indigenous territorial rights were extinguished by the hegemony of the British Crown:

"And whereas it is just and reasonable, and essential to Our [King George III’s] Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds…."

Regardless of the Proclamation’s ongoing reinterpretation, dozens of voluntarily signed Indigenous land treaties flowed from it, nearly all based on the surrender of traditionally occupied territories and tribal self-determination in exchange for material benefits, communal ownership of lands not ceded to the Crown, and what is now Canadian citizenship. 

The contents of the treaties and other evidence also show that the aboriginals consciously and willingly accepted Western technology, education, medicine, foodstuffs, religion, and languages from first contact to the present.

Like other numbered treaties, Treaty No. 6, signed in 1876 with numerous Cree-speaking bands in Western Canada, reads:

"And the undersigned chiefs on their own behalf and on behalf of all other Indians inhabiting the tract [of land] within ceded, do hereby solemnly promise and engage to strictly observe this treaty, and also to conduct and behave themselves as good and loyal subjects of Her Majesty the Queen [Victoria]. They promise and engage that they will in all respects obey and abide by the law, and they will maintain peace and good order between each other, and also between themselves and other tribes of Indians, and between themselves and others of Her Majesty's subjects, whether Indians or whites, now inhabiting or hereafter to inhabit any part of the said ceded tracts, and that they will not molest the person or property of any inhabitant of such ceded tracts, or the property of Her Majesty the Queen, or interfere with or trouble any person passing or travelling through the said tracts, or any part thereof, and that they will aid and assist the officers of Her Majesty in bringing to justice and punishment any Indian offending against the stipulations of this treaty, or infringing the laws in force in the country so ceded."

Accompanying reports written by the Commissioners sent by Ottawa to negotiate treaties with various bands, such as Treaty 8 made in 1899 with Cree and Dene living in parts of Alberta, Saskatchewan, and the Northwest Territories, even stipulate that:

"… whether the treaty was made [agreed to by the indigenous people] or not, they were subject to the law, bound to obey it, and liable for any infringement of it. We pointed out that the law was made for the protection of all, and must be respected by all the inhabitants of the country, irrespective of colour or origin."

Indigenous leaders and their supporters like to claim that because the treaties were supposedly negotiated "nation-to-nation," the indigenous people of Canada surrendered neither their sovereignty nor their lands. This report by the Commissioners and the treaties they applied to says that both had already been lost.

Suppose this were not enough to challenge current aboriginal land and sovereignty claims. In that case, it needs to be remembered that despite the existence in law and fact of fee simple land ownership, all of Canada, including the treaty lands of the Indigenous peoples, has belonged to the British Crown since the days of John Cabot. According to one online World Atlas:

The land of Canada is solely owned by Queen Elizabeth II who is also the head of state. Only 9.7% of the total land is privately owned [but subject to many laws and restriction included possible expropriation by the state acting on behalf of the Crown] while the rest is Crown Land. The land is administered on behalf of the Crown by various agencies or departments of the government of Canada. The Canadian Act has no provision for any Canadian to own physical land in Canada. Canadians can only own an interest in an estate. Of the land owned by the Queen, 50% is administered by the provincial governments and the rest by the federal government. The Crown Land administered by the federal and provincial governments can be defined as land not assigned in freehold tenure.”

So, who owns the undivided sovereign nation of Canada? Surely not its Indigenous inhabitants, who don't even collectively own the reserves where 40 percent of them are living. 

There is yet another challenge to the doctrine of discovery, one already briefly referred to, namely pre-pacification warfare. Despite the fictitious notions of peace and harmony promulgated in the Indigenous-led 1996 Report of the Royal Commission on Aboriginal Peoples, lethal conflict involving conquest, colonization, ethnic cleansing, assimilation, and genocide commonly occurred throughout the New World during the pre-contact period. None of these brutalities were unaccompanied by any declared "doctrine of discovery." 

In this regard, the New World's Indigenous people were no different from people in other places. Around the world, groups that excelled at these practices, including the Aztec of Mexico and Inca of Peru, slowly evolved into state-level nations or empires, though such a transition never occurred in Canada.

What we know about the Aztecs and Incas comes partly from direct documentary evidence, for theirs were semi-literate societies. Much less is known about human life in pre-contact Canada because literacy only arrived with the Europeans. The historical record in these parts began with documents like the 18,000-page Jesuit Relations (1632-1673) based on the reports of Roman Catholic missionary priests. While these and other writings were tainted with ethnocentric and evangelical bias, they consistently and comprehensively report that Canada's original inhabitants demeaned their foes using vicious quasi-racial stereotypes (from coast to coast); mutilated, tortured to death, and cannibalized enemies (prevalent in southern Ontario and Quebec); enslaved members of neighbouring groups (common among West coast tribes); massacred competitors for land and resources (widespread on the Prairies); and exterminated entire ethnic groups (as in the genocidal annihilation of almost all the Huron by the Iroquois in 1648-1649).

What doctrine of discovery denouncers ignore most of all is that, unlike so many other places in the world, including Western Europe where even the names of most preliterate indigenous groups disappeared millennia ago, the post-contact European treatment of Canada's original inhabitants involved neither genocide, nor slavery, nor ethnic cleansing, nor total assimilation, nor the extraction of tribute. Yes, there was the suppression of the North-West Rebellion in 1885 resulting in the notorious but haphazardly enforced pass system, but Canada had nothing resembling the many tragic Indian Wars in America. On the contrary, despite many small and large injustices from first contact to the present, European settlement starting in 1535 eventually resulted in: permanent pacification (the abolition of tribal warfare and the voluntary signing of treaties); the free and lively exchange of aboriginal products for European manufactured goods for 250 years; tens of billions of dollars spent since Confederation in 1867 to enhance the well-being of Indigenous peoples; and an Indian Act (1876) and the Constitution Act (1982) – both rooted in the Royal Proclamation of 1763 – which defined, enhanced, and preserved the special rights and privileges of aboriginals (especially their treaty rights).

Warts and all, no country in history has ever done more to protect and enhance the well-being of its Indigenous people.

Given all the considerations dealt with here, had Pope Francis gratuitously renounced the doctrine of discovery in July 2022, what effect could it possibly have had except to increase the hatred of Canada, one of the greatest, freest, and most compassionate countries in the world, by growing cadres of radicalized Indigenous and non-Indigenous people ignorant of the country’s history.

Hymie Rubenstein is editor of The REAL Indigenous Issues Newsletter and a retired professor of anthropology at the University of Manitoba. A shorter version of this essay was published by the Western Standard

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  • Alison Malis on

    It appears the Pope has made such an announcement. And the lawyers are doubtless lined up with their arguments. Interesting to see how Wilson-Raybould’s poison pill will work now. Interesting in a bad way.

  • Ian Archibald on

    Regarding head counts I would defer to what was probably the best ‘market’ intelligence gathering group of the 19th Century in pre-Confederation ‘Canada’, that is the Hudson’s Bay Company. They had staff throughout the northern half of North America. Here is what the eminent Canadian historian W.G. Hardy has to report in ‘From Sea Unto Sea’ Volume Four: “Though few suspected it, it was also rich for settlement, much of it fertile to the plow, and concealing beneath its surface mineral treasures of which the extent, even today, has scarcely been appreciated.
    Yet in mid-century it was almost uninhabited. In 1957 the H.B.C.’s estimate was of an Indian population of 139,000, of which it placed 85,000 west of the Rockies.”

    I believe it’s time to call BS on the Indian Industry’s crazy numbers unless they can produce better data than the HBC.

  • Gregory Melle on

    This got me thinking about how the boundaries between tribes and ‘nations’ were defined before Europeans arrived to claim the territory themselves. I expect that Carrier indians living in the dry cold BC Interior must have looked with envy on the rich coastal hunting and fishing grounds around the Salish Sea. But of course they didn’t simply move to the coast because the Coast Salish tribes had better weapons, boats and defensive houses.
    Similarly people living along the St Lawrence couldn’t suddenly pick up and move into the Hudson Valley. This wasn’t because of some boundary treaty or religious taboo but simply because some other tribe had already claimed the land, had good weapons and weren’t afraid to use them.
    In pre-settler Canada, boundary disputes between tribes were settled by military might and weaponry rather than any sense of rightful ownership or and claim.

  • Hymie Rubenstein on

    1. The 500,000 figure is a crude estimate based on the best available data that gives a range of 350,000 to several million (see

    A 200,000 estimate is much too low and doesn’t taking into account the massive decline in the early years of colonization due to disease epidemics caused by indigenous natural intolerance to European diseases.

    2. The date of the Pope’s announcement — July 2022 — has now been corrected.

  • Brian Giesbrecht on

    The estimate of “500,000” Indians at the time of European arrival is given with no footnote. I suggest that the best accepted estimate is 200,000. The “500,000” seems to have been picked out of the air.
    I am not clear on what the author means when he says “were Pope Francis to renounce the doctrine of discovery next month”. Is the Pope about to make such an announcement?

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