The Doctrine of Discovery and Terra Nullius

A 500-year-old colonial idea that still affects Canada’s treatment of Indigenous peoples.

There was a disastrous change in the Title and Rights of Canada’s Indigenous Peoples

when the Crown assumed sovereignty in Canada. The sovereign rights of Indigenous

Peoples were appropriated and replaced by Crown rights, with no regard for them in

any way. This was done through the Doctrine of Discovery and the Doctrine of Terra

Nullius.

The Doctrine of Discovery allowed the Crown to claim sovereignty over Indigenous

Peoples and their land by holding that Indigenous Peoples cannot claim ownership of

land. In short, The Doctrine of Discovery established a spiritual, political, and legal

justification for colonization and seizure of land not inhabited by Christians. It does

concede a restricted title (an ‘Aboriginal Title’) to rights of occupation and land use,

which must be proven.

Doctrine of Discovery

The Doctrine of Discovery was the principle used by European colonizers starting

in the 1400s in order to stake claim to lands beyond the European continent. The

doctrine gave them the right to claim land that was deemed vacant for their

nation. Land was considered terra nullius (vacant land) if it had not yet been

occupied by Christians. Such vacant lands could be defined as “discovered” and

as a result sovereignty, title and jurisdiction could be claimed. In doing so the

Doctrine of Discovery invalidated the sovereignty of Indigenous nations and gave

Christians the right to subjugate and confiscate the lands of Indigenous Peoples.

The Indigenous Foundation

The Doctrine of Discovery was set out in a series of declarations by popes in the 15th

century. These declarations (known as “papal bulls”) provided religious authority for

Christian empires to invade and subjugate non‐Christian lands, peoples and sovereign

nations, impose Christianity on these populations, and claim their resources. These

papal bulls were written at a time when European empires were embarking on

widescale colonial expansion.

The Doctrine of Discovery is still an important legal concept in Canada today even

though it was written hundreds of years ago. Both French and English colonial powers

in what would later be known as Canada used the Doctrine of Discovery to claim

Indigenous lands and force their cultural and religious beliefs on Indigenous peoples.

Once Canada was created, the Doctrine of Discovery influenced the imposition of

national, colonial laws on Indigenous peoples. This is because it denies the validity of

longstanding systems of Indigenous governance and sovereignty.

Terra Nullius

“Nobody’s land” – unexplored landscapes drawn by European mapmakers as

blank spaces representing empty land waiting to be settled, rather than territories

occupied by Indigenous Peoples for thousands of years. Canada still stands on this notion today.

The Doctrine of Terra Nullius is where land that is legally deemed to be unoccupied or

uninhabited, allows for the Crown to grant land to its colonial interests, including a majority (70–80%) of Canada’s Indigenous lands to the Hudson’s Bay Company. In other

words, the Crown considered lands that were owned, occupied, and being actively

utilized by Indigenous people to be “vacant” and available for discovery claims, if they

were not being “properly used”, again in a Christian way, according to European law

and culture.

The Doctrine of Discovery finds its root in the 1455 papal bull Romanus Pontifex of the

Roman Catholic Church. Pope Nicholas V authorized the conquest and enslavement of

non-Christian Peoples for the purposes of land acquisition and to profit from the natural

resources of their territory. Terra Nullius finds its legal root in eighteenth century

European law, and the concept was used to justify the right to colonize so-called

“discovered” Indigenous lands throughout the sixteenth to twentieth centuries around

the world. Both Doctrines are still used today in Canada, they have never been

renounced and are used against Indigenous Communities and Peoples throughout the

legal system every day.

Every Canadian should know the historical facts and truth about Crown-Indigenous

relations since contact. Without this knowledge, there is no context for how we got

where we are today and the definitive impact of what every Indigenous person in this

country is struggling for. The processes that Canada was built on, colonization through

the Doctrine of Discovery and terra nullius and the archaic Indian Act, which are still in

play to this day, have tainted this land, its resources and everything else it touches. It is

imperative that Canada and all Canadians accept the truth of its past and present.

Learn more by watching this Video Terra Nullius and the Doctrine of Discovery

Overall, the Doctrine of Discovery is the legal theory behind colonialism in Canada. The

assumption of European superiority and dominance has led to such policies and events

as the Indian Act, residential schools and the Sixties Scoop. These assumptions have

also been present in Supreme Court of Canada decisions, including the Delgamuukw

case. The Delgamuukw case, decided in 1997, was brought forward by hereditary

chiefs of the Gitxsan and Wet’suwet’un First Nations. The court’s decision helped to

clarify the definition of Aboriginal title. It did so by providing a series of requirements for

Indigenous people seeking to prove their title to ancestral territories. For example,

Indigenous peoples are required to prove their exclusive occupancy of a territory prior to

the Crown assertion sovereignty over the land. By comparison, the Supreme Court

accepts the Crown’s claims to sovereignty as simply existing after it had originally

asserted authority over Indigenous peoples and lands.

Pope Francis repudiated the Doctrine of Discovery on March 30, 2023. Specifically, the Pope stated that it failed to respect the “inherent human rights of Indigenous peoples” and allowed “forced assimilation.”

Despite the repudiation of the legal theory, the papacy failed to repeal the papal bulls that serve as the foundation of the Doctrine.

Global News 2023 - Doctrine of Discovery: What is it and why is Pope Francis being

asked to denounce it?

This is a summary of this truth, but it is huge to acknowledge and know the truth about how

this country built itself and the wealth from land grabs from First Nations Peoples

throughout the entire country. This true history tells stories of the legacy of intentional

oppression, discrimination and attempted elimination of my Peoples for centuries now.

The legal system is not how we do governance or decision-making and we are forced

to protect our “Title and Rights” every day through a system that is built on this. When I

speak about harm to us every day, this is what I mean, that we still have to fight for

everything that we have and will continue to do so, and ideally it is with more and more

non-Indigenous Canadian Allies on our side. My call to action is to continue to read these posts, share them far and wide, go to the Siyam Consulting website, and purchase corporate learning documents which take deeper dives into all these spaces. Then look to

decolonize your heart and mind by cultivating safe spaces in your institutions.

– Sxwpilemaát Siyám, Chief Leanne Joe