Doctrine of Discovery rejection could have major implications for Canadian case law

By Jeremy Appel, Local Journalism Initiative Reporter 

(ANNews) – The Vatican’s announcement in March that it’s repudiating the Doctrine of Discovery that was used to justify colonialism and plunder for centuries led to questions about what that decision means in practice. 

According to Tamara Baldhead Pearl, a University of Alberta law professor from the One Arrow First Nation in Saskatchewan, the Vatican’s repudiation of the doctrine could be an important first step in eliminating “white supremacy in Canadian case law.”

“The greater the consensus that the Doctrine of Discovery is fundamentally racist and immoral, the harder it is for Canadian courts to continue to decide cases based on this fundamental doctrine,” Pearl told the CBC Radio program Day 6. 

She added that hopefully judges will “try to rethink how Canadian law can be brought into conformity with the contemporary understanding of Indigenous rights and equality among peoples.”

The Truth and Reconciliation Commission report’s Call to Action #46 calls on the Church and government to “repudiate concepts used to justify European sovereignty over Indigenous lands and peoples, such as the Doctrine of Discovery” and to “reform laws, governance structures, and policies… that continue to rely on such concepts.”

The National Centre for Truth and Reconciliation (NCTR) called the Vatican’s repudiation of the doctrine “one step among many that should be taken by the Catholic Church towards taking responsibility for its actions.”

“We hope that the Vatican’s statement will spur renewed conversations about the rights of Indigenous Peoples and the duty to address the profound harms that have been inflicted through colonial laws and policies,” the NCTR said in a March 30 statement. 

In a March 31 statement, the Metis National Council (MNC) called the repudiation a “step forward by the Catholic Church in their commitment to walking together in a good way with Indigenous peoples on the journey of reconciliation.”

The Vatican must “move beyond mere words to real, tangible actions that centre the needs and experiences of Métis Survivors and their families,” the MNC added, noting that it brought these concerns to the Pope’s attention last year.

The Catholic Church’s disavowal of 15th century papal bulls, or edicts, which informed the doctrine came with a caveat. The Vatican maintained that these edicts were misinterpreted by colonial powers and not the will of the Church, citing later bulls that contradicted the doctrine. 

Pearl told Day 6 that while the Vatican’s repudiation of the doctrine “was not perfect,” it “meant a lot to a lot of Indigenous folks throughout the country.”

The announcement came a year after First Nations, Metis and Inuit delegates travelled to the Vatican, where Pope Francis apologized for the Catholic Church’s role in operating the carceral assimilation institutions known as “residential schools.” 

A few months later, the Pope visited Canada, touring Alberta, Quebec and Nunavut. At his visit to the National Shrine of Sainte-Anne-de-Beaupré  in Quebec, Indigenous protestors unfurled a banner calling on him to “Rescind the Doctrine.” 

The doctrine’s disavowal won’t have an immediate impact on Canadian law, Pearl emphasized, “but it will have a significant impact on those who make changes in the law.”

This will hopefully mark a newfound respect for the Treaties and nation-to-nation relationships that were the basis of King George III’s 1763 Royal Proclamation, she added. 

The notion “that Canadian state law, which is common law, civil law, is the only sole legitimate source of law in Canada” reflects the long-term impact of the doctrine on Canada’s judicial system, because it ignores Indigenous laws, Pearl explained. 

The Vatican’s statement from last month “helps to de-legitimize the assumptions on which Crown sovereignty and underlying title are based,” she said.