Activist claims about 'Discovery' and Papal Bulls are incorrect.
By Peter Best and Nina Green
IT IS A POPULAR REFRAIN among activists, indigenous and non-, that explorers from Europe did not really “discover” North America. They point out that indigenous peoples were already here — a fact that was first discovered, oddly enough, by explorers. The Assembly of First Nations claims that “Discovery was used as legal and moral justification for colonial dispossession of sovereign Indigenous Nations.” The so-called “Doctrine of Discovery,” moreover “...emanates from a series of Papal Bulls.” Some native activists now demand that the Pope revoke several of these Papal Bulls concerning “terra nullius,” the legal concept that “no one owned the land prior to European assertion of sovereignty,” as the Supreme Court of Canada wrote in 2014. It is worth taking a few minutes to demonstrate that such claims about dusty papal parchments are bogus.
The first of these ancient edicts is the Bull of 1095 issued by Pope Urban II which allegedly mentions terra nullius. But fact-checking reveals that this is a myth. Urban II did issue a Papal Bull in 1095, but it had to do with the excommunication of the ruler of the Kingdom of Aragon (in Spain), and makes no mention of terra nullius.
Other Papal Bulls issued prior to 1493 had no effect on the Americas. Some concerned Africa, such as the Papal Bull of 1455. Others concerned lands in the Middle East occupied by the Saracens.
When Columbus, believing he had reached Asia, returned to Europe in 1493 from his voyage to what is now the West Indies, the news he brought resulted in increased competition between the two principal European sea-powers, Spain and Portugal. In an attempt to settle matters between them, Pope Alexander VI issued four Papal Bulls on May 3 and 4, and September 26, 1493. The first two were superseded by the third, and none had any effect on the Americas as they were all in turn superseded on June 7, 1494 by the Treaty of Tordesillas between Spain and Portugal. The Treaty provided that:
a line ‘from pole to pole’ would be drawn 370 leagues from the Cape Verde islands. The eastern part would be part of the Portuguese domain, and the western part that of the Spanish. Each would commit to not sending vessels to navigate in the partner's area, although an exemption allowed Spanish ships to cross the Portuguese domain in a ‘straight line’ toward the West. The signatories also committed to not appeal to the pope's authority for support against the commitments of the treaty, but only to request its recognition, which was provided in 1506.
Although the Treaty of Tordesillas bound Spain and Portugal, it had no practical effect on the ambitions of other European monarchs such as the King of France or the King of England, who considered it a “bilateral commitment applicable only to the signatories.”
A mere two years later, on March 5, 1496, Henry VII of England issued Letters Patent to the explorer John Cabot and his sons, Genovese-Venetians who had settled in Bristol, authorizing them to “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.”
Cabot’s 1496 voyage ended in failure. In the following year he did reach the coast of North America. Believing he had reached the northeast coast of Asia, he claimed it for Henry VII.
In 1534, ignoring both the claims of Spain and Portugal under the Treaty of Tordesillas and Henry VII’s Letters Patent to Cabot, the explorer Jacques Cartier claimed Canada for the King of France, Francis I.
Clearly, if Indigenous leaders have a quarrel concerning a so-called Doctrine of Discovery, that quarrel originated in 1497 and 1534 with the rival claims to Canada made on behalf of Henry VII of England and Francis I of France, not with irrelevant Papal Bulls. In bringing their wild assertions about terra nullius to Pope Francis in Rome earlier this year, they were barking up the wrong tree.
The subsequent struggle between France and Britain for control of North America is a long and complex story beyond the scope of this article. Suffice to say it terminated with the British victory (aided by its Indian allies) in the Seven Years War in 1759-60, and the 1763 Treaty of Paris by which France surrendered its claims in Canada to the British.
The claim that there was a papal “Doctrine of Discovery” behind French and British colonization of Canada is thus a myth. One could even go so far as to state that it is absurd.
It is worthwhile also to take a step back and consider the wider historical movements involved. What motivated the French and British to sail to North America can be understood in the context of historical factors that have motivated all of humanity since perpetually migrating man first walked out of Africa 100,000 years ago. That obviously includes the Siberian migrant ancestors of today’s indigenous people, the Iroquois who conquered Huronia, the Blackfoot who displaced the Kootenay people of Alberta (forcing them to settle west of the Rockies), and so on. Such factors and movements include overpopulation, pressures at one’s borders, resource scarcity, poverty at home, the exigencies of war, expansionist and proselytizing urges, trade, and even simple curiosity and desire for adventure.
Law of Conquest
The real legal justification for the colonization of Canada by France and Britain is the simple age-old law of conquest, an accepted principle of international law which the word “subdue” in Henry VII’s Letters Patent reflected. The two conditions of the law of conquest are, first, 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.
The conquest need not be military in nature. It can be peaceful social, cultural and economic domination, essentially acquiesced in by the Aboriginal peoples of the day, which was the case with Canada.
By the late 19th century, as Tom Flanagan wrote in First Nations? Second Thoughts, “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 treaty deliberations and the treaties themselves confirmed this. Queen Victoria was referred to as “the Great Mother” by the Indians, and the Indians were described and referred to themselves as the Queen’s “children.”
The pathos-filled inevitability of the situation was illustrated in the realistic assessment by one of the Cree Chiefs prior to the signing of Treaty No. 6 at Fort Carlton on the banks of the Saskatchewan River in 1876. 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,” meaning the head negotiator, Alexander Morris, the Lieutenant Governor of Manitoba and the North-West Territories appointed by Ottawa.
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.
In summary, even if the Papal Bulls had ever been relevant, that relevance ended centuries ago. Now these things are empty, abstract, straw-man word constructs without any relation to present, practical life.
Focusing on these irrelevant abstractions distracts Canadians from what should be everyone’s preoccupation: the terrible social conditions on and off First Nations reserves, well-described by Tanya Talaga in her 2017 book, Seven Fallen Feathers.
The Doctrine of Discovery, Papal Bulls, and Papal apologies are all irrelevant. They are red herrings, “castles in the air,” or rhetorical tricks. “Castles in the air do not require very rigid foundations; their enchantment lies in the fact that they are built on almost nothing.” Focussing on them will do nothing to improve the lives of Aboriginal Canadians in 21st-century Canada.
Peter Best has practiced law in Sudbury, Ontario for 45 years. He is the author of There Is No Difference- An Argument for the Abolition of the Indian Reserve System (thereisnodifference.ca). Nina Green is an independent researcher.
On this siubject, one also has to look at the the idea of First Occupancy theory. This “proceeded on the basis that the first human user of a natural resource—a piece of land, for example—is distinguished from all others in that he did not have to displace anyone else in order to take possession. It did not particularly matter how he took possession of it, or what sort of use he made of it: what mattered was that he began acting as its owner without dispossessing anyone else.” As was suggested to me, read Jeremy Waldron on this, a world expert in the field. https://plato.stanford.edu/entries/property/ But not only, first occupier, but did those people perceive of the land they were on as a “possession”, and after they were displaced by other secondary occupiers, did they retain that earlier status?
I’ve never heard of the ‘Doctrine of Discovery’ being raised in relation to Papal Bulls. I’m sure it has been by somebody, but more typically it is discussed in relation to the Lockean social contract, and the philosophical view that a people in a state of nature had no sovereignty. So, I worry you’re tilting at windmills since the concept is relevant even if it has nothing to do with the Papacy.
The final section is a tad odd. There is no discussion of the injustice of conquest. It’s obviously morally unacceptable, and the law of conquest is a “historical” principle of international law for precisely that reason. So, even we accept that “conquest” is the right way to look at these issues, I don’t see how that would address their complaints about the manifest injustice of it all. It makes me imagine someone confronting a Quebec separatist who says: “We are a conquered people!” by saying “Yes, so what are you complaining about?” Pretty sure we would have lost both referendums.
An excellent correction to the inanity that continues unabated and, largely, unchecked in the media. It would be improved only through footnotes (hyperlinks obviously suffice for a blog post, but footnotes are easier to see visually).
I posted this on Hymie Rubenstein’s article and he suggested I post it here as well. So here it is:
I was about to enter into a discussion and I figured I should check my facts first. I did a search for “doctrine of discovery” on CanLII and it’s a good thing I did. Your article above set aside, the term “doctrine of discovery” and all that it entails is heavily relied upon, used, cited, described, read, whatever directly in 69 court cases, treatises, books discussions, et cetera, and then an unknown number of cases/decisions that themselves cite from these 69. Whilst I understand the historical premise that this article is based, does that then mean that all of these citations of the doctrine of discovery are incorrect? In a very recent case, BCSC 15, Saik’us FN v Rio Tinto, the “doctrine of discovery” is mentioned several times, and once in particular in relation to the TRC report: Calls to Action 45, 46, and 47 all urge the repudiation of concepts used to justify European sovereignty over Indigenous lands and peoples including the doctrines of discovery and terra nullius." (para 191). Then, further in paras 194 and 195 the Court seems to say the doctrine of discovery (and terra nullius) are “legally invalid”: "194 If the doctrines of discovery and terra nullius are indeed “legally invalid” or simply inapplicable in Canadian law, what then is the legal justification validating the assertion of Crown sovereignty over Indigenous peoples and Indigenous lands?
195 In the very same paragraph in which the Supreme Court of Canada in Tsilhqot’in denied application of the doctrine of terra nullius in Canada, the Court simply restated:
At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province. This Crown title, however, was burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival . . . The Aboriginal interest in land that burdens the Crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.
196 This construct has become a fundamental part of the framework animating Aboriginal law jurisprudence following 1982, when s. 35 of the Constitution Act, 1982 formally recognized and affirmed the existing Aboriginal rights of the Indigenous peoples in Canada. But, one may rightly ask, if the land and its resources were owned by Indigenous peoples before the arrival of Europeans, how, as a matter of law, does the mere assertion of European sovereignty result in the Crown acquiring radical or underlying title? How and why does pre-existing Indigenous title somehow become subordinate?
197 Rather remarkably, the Supreme Court of Canada has never directly answered this question even though the Court itself noted in Delgamuukw at para. 145, “it does not make sense to speak of a burden on the underlying title before that title existed”."
The Court then goes on to ponder the whole idea of aboriginal title and how, if at all, it was extinguished, I supposed with particular reference to untreatied British Columbia. I haven’t read the whole decision but I will, and I guess y’all should too. It’s here: https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc15/2022bcsc15.html?searchUrlHash=AAAAAQAXImRvY3RyaW5lIG9mIGRpc2NvdmVyeSIAAAAAAQ&resultIndex=24
This decision was often cited in a recent land claims case I worked on.
Beautiful essay making a very important point for all Canadianwsa to consider.