DOCTRINE OF DISCOVERY & TERRA NULLIUS
The Royal Commission on Aboriginal Peoples (RCAP), in its preamble to its summary of recommendations, urges that a "renewed relationship between Aboriginal and non-Aboriginal people in Canada be established on the basis of justice and fairness."1 Foundational to this renewal would be the acceptance of four fundamental principles: mutual recognition, mutual respect, sharing and mutual responsibility.2
Diametrically opposed to these principles is the concept of "terra nullius" and the "doctrine of discovery." The commission goes on to recommend that Canadian governments acknowledge that the "concepts ... of terra nullius and the doctrine of discovery are factually, legally, and morally wrong."3
In addition, the commission urges our governments to declare "that such concepts no longer form part of law making or policy developments by Canadian governments.4
Our presentation today intends to explore the origins and implications of these doctrines. We have already begun this process with the opening segment of the blanket exercise. So in ten minutes or less I will try to outline the development of these doctrines:
Rooted in Natural and Roman law5 and included in European common law traditions, "continuous use and possession of the land from time immemorial"6 legitimated land title. Initially, the right of discovery was valid when the lands discovered were unoccupied, i.e., a true "terra nullius." (for example, Iceland.)
The doctrine of discovery, consequently, gave the discovering power, or party, the first right of occupation if there were no previous inhabitants. Secondly, if there were inhabitants, the discovering power had the first right to trade with, and to negotiate with, the newly discovered people(s) issues of allegiance, sovereignty, and land sharing.
Perhaps the American Chief Justice John Marshall described the doctrine of discovery best in Worchester versus the state of Georgia: "This principle, suggested by the actual state of things, was 'that 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...This principle, acknowledged by all Europeans, because it was in the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of competition among those who agreed to it; not one which could annul the previous right of those who had not agreed to it (namely, the indigenous inhabitants). It regulated the right given by discovery among the European discoverers; but could not effect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the possessor to sell."7
In the age of discovery, because most lands had inhabitants, and the traditional legal doctrine hindered expansion, the term "terra nullius" changed to mean lands that were uncultivated according to European standards i.e., where the inhabitants had no fixed residences but roamed the territory like "wild beasts in a forest."8 (According to one New England preacher)
Still many colonizers "did not claim legal title to the land in virtue of discovery."9 Faced with the well-populated and domiciled lands of mesoAmerica, Spanish colonizers drew upon Aristotle's teaching on 'natural servitude.' For a time, drawing upon Aristotle's teaching on "natural servitude," (some peoples were by nature slaves according to him).10 In addition, some settlers denied the very humanity of the Indigenous populations. Given these arguments, they did not have to justify occupation.
Later, still, when the natural slavery argument was challenged by, among others, Francesco Vitoria (considered one of the founders of International Law) he began to justify occupation and Spanish sovereignty under the rationale that the Amerindians were "natural children." This gave rise to the notion of trusteeship or wardship of the newly discovered peoples.11
Fundamentally, the right to assert sovereignty was assumed by the discovering power--unless the new land(s) had been ruled by a Christian king or Prince (e.g. the mythical Prester John).12
Implicit in this view was an understanding that "with the coming of Christ every office and all governmental authority and all Lordship and jurisdiction was taken from every infidel lawfully and with just cause, and granted to the faithful through Him who has the supreme power and who cannot err."13
The bulls of donation of Alexander VI exemplified this understanding of papal authority first propounded by a British cleric and canon lawyer, Alanus Anglicus.
In fact, these were really bulls of exclusion--their intent being to keep Portugal from exploring West of the line of demarcation in the Atlantic ocean. England, France, Holland ignored this work of papal arbitration between two European maritime powers.
While the papal bull, Sublimis Deus, promulgated by Paul III in1537 recovered some of the teaching of Innocent IV regarding the legitimate "dominium of non-Christians,14 by affirming Amerindian rights to private property and personal freedom, sovereignty was reserved to the colonizing Christian powers. In other words, the discovering power had the first right to receive the allegiance of the new people in question.
What Paul III did do was affirm the full humanity of Amerindian and other new discovered peoples: "We, who, though unworthy, exercise on earth the power of our Lord and seek with all our might to bring those sheep of His flock who are outside into the fold committed to our charge, consider, however, that the Indians are truly men" and "notwithstanding whatever may have been said to the contrary, the said Indians and all other people who may be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and of no effect."15
Even this text, however enlightened for its time, assumes that non-Christian peoples did not have full 'dominium' in the territories they occupied and governed. For the term 'dominium' encompassed not only property rights but political rights as well.16
In the Canadian context, for example, the French regime never entered into any land treaties with Amerindian peoples. It simply assumed sovereignty and title to the land in virtue of the doctrine of discovery.17 With the British conquest in 1763, sovereignty and ultimate title to the land passed to the British crown according to this understanding.
When the Odawa war chief, Pontiac, organized a serious resistence to British expansion, the crown issued the proclamation of 1763. Basically, it reaffirmed all the principles related to "discovery" and sovereignty that had been operating at the time. Legal title to the land was vested in the crown. It allowed the First Nations a continuing right to live and hunt on their traditional lands until these lands were surrendered to the crown. The crown in turn would allocate it to private persons or groups. Individual Aboriginal persons and First Nations as collectivities had no rights-- according to this proclamation--to sell or cede land to private individuals or corporations.
Fundamentally, this remains the legal framework out of which Canada operates today. The Royal proclamation, in fact, is part of the Canadian constitution:
The guarantee in this charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
Comprehensive land claims, for example, illustrate this legal and constitutional framework. Lands that first nations have traditionally lived on can be ceded only to the crown. The territory they retain in the land settlement is still considered to be ultimately owned by the sovereign nation state of Canada.
Despite improvements in human rights theory and practice, the "facts on the ground" continue to take precedence over history based group rights.
Stripped of all rationalization "might is right." But as Jean Jacques Rousseau pointed out long ago: If might is right, then the effect must vary with the cause. When might overcomes might, then, it succeeds to the right which that might had made. As soon therefore as one can disobey safely, one can disobey legitimately; and since the strongest is always right the trick is quite simply to act in such a matter as to be the strongest."19
Las Casas, arguing from the right to self defense, wrote that because of the massive injustices perpetrated in the Americas "the native people of each and all these regions where we have come into the Indies have the vested right to make war on us most justly and evict us forthwith from the land, and this right will abide with them till judgement day"20
In fact, resistance to the conquest of the Americas has continued right down to our day and will continue as long as injustice remains unredressed.
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