Opinion by Professor Douglas Sanderson: The Doctrine of Discovery was only given legal life by the U.S. So why do we bother talking about it in Canada?

In an opinion published in The Globe and Mail, Aug. 5, Professor Douglas Sanderson (Amo Binashii), the Prichard Wilson Chair in Law and Public Policy at U of T Law, writes about the papal bull: 

During Pope Francis’s visit to Canada, there were calls for him to renounce the Doctrine of Discovery. Indeed, at his mass near Quebec City, activists unfurled a banner calling for him to “rescind the doctrine.”

The problem is that this discourse only breathes life into a legal doctrine that has actually had little influence on relationships with Indigenous people in this specific part of the world.

It is true that in 1493, Pope Alexander VI issued a papal bull declaring that the globe was divided in two parts, one being given to the Spanish, the other to the Portuguese. The bull established the Doctrine of Discovery, announcing that any lands discovered that were not held by a “Christian king or prince” should be claimed, the Indigenous owners overthrown and enslaved, and Christianity forced upon the population. And in much of South America, that is what the Portuguese and Spanish did.

But things played out differently in this part of the world – Turtle Island – and in Indigenous peoples’ encounters with the British and the French.

While it is true that Jacques Cartier planted a cross and claimed land for the King of France, this had no legal effect, and only led to increased animosity with the local Indigenous population. In truth, settlers and colonists largely purchased land here from the local populations. Some land was purchased via treaty, and some by cash sale. The British instituted comprehensive policies about how to buy land: There had to be witnesses to the transaction, sometimes a wampum belt would need to be given, and it all had to be done publicly.

Over the centuries, philosophers such as John Locke and Emer de Vattel would devise positions to undermine Indigenous claims to their land. But none of these were rooted in the concept of “discovery.”

Professor Sanderson is Beaver Clan, from the Opaskwayak Cree Nation, and the author of the forthcoming book, Valley of the Birdtail: An Indian Reserve, a White Town, and the Road to Reconciliation, co-authored with Andrew Sniderman (JD 2014).

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