On March 30, the Vatican repudiated the doctrine of discovery. Roughly 530 years after Pope Alexander VI issued “Inter Caetera,” which ceded all lands 100 leagues west of the Cape Verde Island to the Spanish crown, the church has recognized its role in the occupation of the lands of the Indigenous people of the Americas.
Of course, it wasn’t just the Catholic Church that argued discovery implied possession nor was it always about bringing non-Christians to God. Both England and France asserted a right to explore and colonize any territory not under the actual possession of a Christian sovereign.
Many scholars and theologians criticized the doctrine. Writing in 1625, the Dutch philosopher and diplomat Hugo Grotius stated discovery does not give a right to sovereignty over inhabited land, “For discovery applies to those things which belong to no one.” Other philosophers expressed similar views.
But in 1823, the U.S. Supreme Court held that under international law, “Discovery of lands previously unknown to Europeans gave the discovering nation title to that land against all other European nations…” Furthermore, all lands discovered by England passed to the individual states after the Declaration of Independence and to the United States in 1789.
The court noted: “… in order to avoid conflicting settlements, and consequent war with each other … discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession…”
The U.S. Supreme Court has no jurisdiction in Canada but England and France took possession of our country by virtue of discovering already inhabited land - albeit, through treaty in some areas.
We are left with the complex issue of trying to understand how to address centuries of occupation and how to reconcile our past. However, Indigenous title must be recognized. The government of Canada can’t simply act without due consideration to the implications of its actions. Not if it is lawful.
Last week, we heard the leader of the Conservatives proclaim that if a company wants to build a mine, they can start the next day if he is prime minister. The gatekeepers need to be removed.
But they aren’t gatekeepers. They are Indigenous people with rights.
Todd Whitcombe is a chemistry professor at UNBC.
