Pope Francis came to Canada this week to deliver a speech that is not quite what was called for in the 2015 Truth and Reconciliation Commission report. Arriving in Edmonton, the pope apologized for the acts of “several Christians” and “members of religious communities”, but not in the name of the Church as such. The papal speech deplored the collaboration of some Catholics in government-led projects of assimilation and cultural destruction, but did not admit the responsibility of the Church, as an institution, in directing these projects. Legally, politically, and even spiritually, the nuance is major. It is up to residential school survivors and their loved ones to respond to this choice of words, and omissions.
But whatever Pope Francis says, the Catholic Church has played a central role in the territorial dispossession of indigenous peoples across the Americas. That’s why in the past few days, more than 4,800 tweets including the hashtag #DoctrineofDiscovery have been launched in the Canadian Twittersphere. On the initiative of several indigenous personalities, the online mobilization seeks to obtain a comment from the pope on the doctrine of discovery, a concept of international law dating back more than 500 years, during the days that remain to him to spend in Canada.
So what exactly is the Doctrine of Discovery? This is a concept originating from the papal bull Inter caetera, issued in 1493 by Pope Alexander VI at the request of the monarchs of Spain, after their emissary, Christopher Columbus, reached the Caribbean.
A previous papal bull (or edict) had given the monarch of Portugal the “right” to appropriate the African continent, or more precisely “the full and entire power to attack, to seek, to capture, to conquer, to subjugate all the Saracens and pagans and other enemies of Christ wherever they are […] and reduce their persons to perpetual servitude”.
In context, therefore, the Spanish monarchs are seeking the blessing of the Church to do the same on the “new” continent. The 1493 bull essentially draws a line in the Atlantic, leaving all the “discovered” lands to the west to the Spanish (most of the Americas) and those to the east to the Portuguese (Africa and what will become Brazil) .
In 1533, the French monarch François 1er succeeded in having the new pope, Clement VII, specify that the bull of 1493 only concerned lands already “discovered” at the time. The Church establishes a sort of “first come, first served” rule for all non-Christian lands still unknown to Europeans. It was in this context that Jacques Cartier was sent by France the following year, and planted a cross in the Gaspé Peninsula to “take possession” of the territory in the name of its king. Thus, a direct line can be drawn between papal authority and the denial of indigenous sovereignty over the lands of the Americas, including Canadian territory.
Among the figures talking about the Doctrine of Discovery these days is retired Justice and Senator Murray Sinclair, who chaired the Truth and Reconciliation Commission. Along with the pope’s apology, the commission’s report called on “speakers from all religious denominations and faith groups who have not already done so to repudiate the concepts used to justify European sovereignty over lands and Indigenous peoples, including the Doctrine of Discovery and the Principle of terra nullius “.
It is that in the centuries which followed these decisions of the Church, international law continued to be built on the same bases. It has been questioned, for example, whether the pope has the authority to decide who can take possession of the lands of indigenous peoples – rather than just organizing their mass conversion. Some believed that it was better to appropriate only the uninhabited territories, says ” terra nullius and seek to conquer the rest by treaties.
In response, influential thinkers (including the philosopher John Locke) have been busy developing a definition of terra nullius including all the land that was not occupied… in the European style — either in a sedentary, agricultural, then industrial mode. These debates had a strong influence on the development of Canadian law, as many First Nations with a traditional nomadic way of life had to go to court to “prove” an ancestral occupation of the territory.
In 1792, Thomas Jefferson decreed that the Doctrine of Discovery formed a basis of international law and also applied to the new republic of the United States of America. And in 1823, the US Supreme Court relied explicitly on this doctrine to arbitrate a dispute between two citizens claiming to own land. One having acquired it from the local indigenous community, the other from the government, the court will rule in favor of the latter.
Over the decades, Canadian courts have relied on this American decision to build their own legal traditions. This is why several experts on the subject believe that it would be very complex, but also eminently necessary, to recast the political and legal contract between the Government of Canada and the Aboriginal peoples in order to dissociate ourselves, for good, from the doctrine of discovery. This would be the only way to cease, at all points, to base the legitimacy of the State on a colonial principle whose genealogy goes back to the popes of the Renaissance.
It would be, let’s say, extremely optimistic to believe that the current mobilization around the doctrine of discovery will be commented on by the current pope by the end of his journey. But the informal campaign is already effectively contributing to drawing public attention to this fundamental issue for the Americas.