The Doctrine of Discovery and Terra Nullius: How these Concepts Impacted on the Colonization of Canada
July 5, 2024
The Doctrine of Discovery was an accepted European legal doctrine based on edicts issued by various Catholic Popes that granted explorers from Christian nations the right to claim ownership over foreign vacant lands1 on behalf of their monarchs. Vacant lands however, included lands that were not in fact vacant but rather occupied by non-Christian peoples who were deemed, by the Catholic faith, to be enemies of Christ. It was therefore acceptable for explorers to attack indigenous people and enslave them in pursuit of riches, including taking land and other resources, for their European Kings and Queens.
Under the Doctrine of Discovery indigenous people were seen as being less than human or certainly inferior to the European white people. In North America the Doctrine of Discovery was not a paramount consideration for the early explorers. Rather here there was an early acceptance of dealings between sovereign nations as codified in the Two Row Wampum. The Two Row Wampum, known as Teiohate Kaswenta in the Mohawk language, tells the story of an agreement between Indigenous people and the Dutch, founded upon the respectful co‐existence of two different nations.
This Two Row Wampum understanding lead to an early symbiosis between Europeans and the indigenous people whom they depended upon to teach them about the land and assist in the fur trade and the exploitation of other resources. While not without difficulties the coexistence was the dominant way of interaction between the indigenous populations and the Dutch, then later the French and British traders who first came to Canada. Unlike the American states, the Canadian provinces did not attract large numbers of early European immigrants and so the relationships between the colonial powers and indigenous peoples remained fairly stable for a long time. Eventually there were conflicts that arose between European Powers (principally Britain and France) that swept in indigenous tribes based on their local alliances.
After one such European war, the so-called Seven years War between the English and French, England’s King George III issued a Royal Proclamation (1763) in order to solidify British holdings in North America. At that time, the King had concerns that the overly aggressive American colonies would continue to expand westward and northward grow in power. In order to contain that risk, the Royal Proclamation explicitly said that Aboriginal Title existed and continues to exist, and that all land would be considered Aboriginal land until ceded by treaty.
As an aside this was an important but often overlooked grievance that the American colonies had with the King, as they were intent on moving westward and driving the indigenous people out without a treaty agreement.
Fast forward to Canadian Confederation in 1867 when the provinces of Upper Canada, Lower Canada, Nova Scotia and New Brunswick decided to form a confederation in order to unite their defense against continued American imperialism which threatened to move northward. As part of the defense our fledgling nation Canada entered into a deal with the Hudson’s Bay Company in 1870 to purchase the land known as Rupert’s Land and the Northwest Territories (a combined area that today includes Alberta, Saskatchewan, Manitoba and the three Territories).
The idea was relatively simple. This land was the link between Canada and the far-flung colonies of British Columbia and Victoria (i.e. Vancouver Island) who had agreed in 1870 to join the new Canadian nation as the fifth province. Part of the deal was that Canada would purchase the land from HBC and use it to build a railway to link east and west, from ocean to ocean.
There are some obvious flaws to the deal and in particular it is questionable as to how precisely HBC had legally gained any ownership of the land over the indigenous peoples’ territory in the west without treaties. The idea of ownership at this time was not as universal as we might think. Amongst the indigenous people the dominant belief was that the land belonged to no one. Rather it was the responsibility of all people to take care of the land. It was intended for the use of everyone but at the same time there is a shared responsibility to take care of the land.
So in the early days of forming the country of Canada the government faced a dilemma. While it had paid HBC for the land they had to still address the issue of aboriginal title. To do this the government began a series of treaty negotiations that ultimately resulted in what we call the “Numbered Treaties” that essentially allowed for the transfer of land to the Canadian government in exchange for certain guarantees that included the provision of reserve lands, payment of annuities, provision of equipment and supplies to promote agriculture, and other forms of assistance.
These Treaties obviously represented, for the indigenous people, a dramatic change in their lifestyles and a dramatic difference in the way they conceived how land was to be shared and used. This lead to some significant resistance including violence but in the end much territory was ceded and agreements settled by treaty. The indigenous people were left with little choice in these negotiations.
By the 1870s the bison herds were close to extinction. The fur trade had all but disappeared. Their economy and ways of life were in ruins. American colonial expansion threatened the existence of some indigenous people and in the mid west forced them to remain north of the 49th parallel in Canada for some protection. The indigenous people had many challenges as mentioned above and on top of that contending with the Whiskey Traders who used liquor to manipulate indigenous people into accepting bad deals. Overall, colonialism had established an existential threat to these people and now with the formation of Canada and the promotion of western settlement they needed the protection being offered via the treaties by the new Canadian government.
Unfortunately, the Canadian negotiators did not act entirely in good faith. There was a belief that the aboriginal title was merely a technicality as the people did not use all of the land nor did they improve the land in the normal way that settlers would improve the land2. Therefore, since the reality was that the indigenous people did not really own the land, then it was acceptable to “low ball” them.
While the historic account differs depending on the telling. It is reasonably clear that the understandings reached between the Indigenous leaders and the Canadian government officials for each of the eleven numbered treaties, was understood differently on the key issue of land ownership.
For the Indigenous negotiators they were agreeing to the use of the land in exchange for those promises being made to them. For the government, the indigenous leaders were ceding territory needed for the building of the railway and the settling of the west. The ultimate problem was that the agreements were rendered in English and the indigenous leaders signed off on them believing that they agreed to something different. These misunderstandings were further aggravated when in the execution of the agreements, the actions were marked by broken promises and deliberate efforts to assimilate the indigenous population.
What is interesting today as we look back is the fact that while the Doctrine of Discovery was in existence at the time, and could have been an underlying concept in Canada, it was significantly modified by the Royal Proclamation (1763) which remains a law of the land today. In B.C. for example, where there were and are no treaties (outside of Vancouver Island), several groups have been able to “win” title over their traditional territories by virtue of never having ceded it by treaty. Understanding the legal implications of the Doctrine of Discovery, the Royal Proclamation and the many and various treaties is an essential part of understanding modern day claims and the path to reconciliation. We will provide more in-depth coverage if this subject over time.
Definition: Terra Nullius is a Latin expression meaning "nobody's land”.
This belief was later overturned by the supreme court of Canada. In referring to the “pre-existing” land rights of Indigenous Peoples, the Supreme Court ruled: “The doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada, as confirmed by the Royal Proclamation (1763)”