Preparations for a papal statement rejecting the Doctrine of Discovery are underway.
Canada’s Catholic bishops’ conference (CCCB) and Vatican officials are working together on the document.
They aim to create a statement rejecting an entire tradition of legal reasoning, said Jonathan Lesarge, CCCB spokesman.
It is likely to address core concerns of Indigenous people in Canada and in many other parts of the world.
Pope Francis promised to make a statement about the Doctrine when he was on his way home from Canada in July.
An American legal scholar says the key 1823 US Supreme Court decision entrenching the Doctrine into common law around the world is “the very foundation of property law in the United States”.
In the United States property has been acquired from a king – of England, Spain or France, Robert Miller explains.
“And you got it from the colonies and then you got it from the Continental Congress and our Articles of Confederation, or you bought it from the United States government we have now. The US got it by treaties or by conquest. That is all based on the Doctrine of Discovery.”
He says the US must find an alternative, morally justifiable basis for property law.
The current law
Miller is a leading expert on the Doctrine and the US Supreme Court decision of Johnson v. McIntosh. European justifications for colonising the New World were first codified into a legal doctrine in that decision.
Those justifications included Pope Alexander VI’s 1493 papal bull Inter Caetera.
The result is nearly 70 million acres of Indigenous land in the United States that Indigenous people cannot fully own. Instead, they are “beneficial owners”. The US government retains trust ownership. The Crown in Canada likewise holds Indigenous lands in trust.
The papal statement won’t make any difference to the Johnson v. McIntosh ruling however. It can’t change the law, says Miller.
But it’s not a meaningless gesture, he adds.
If the Church’s response includes a papal statement that pulls the threadbare moral justifications out from under Johnson v. McIntosh, that will be a shot heard round the world, he says.
“It has a symbolic, educative, name-and-shame importance.”
Some countries are already severing their legal ties to Johnson v. McIntosh by signing on to the non-binding UN Declaration on the Rights of Indigenous Peoples.
In 2021, Canada passed the UN Declaration on the Rights of Indigenous Peoples Act.
Its preamble declares, “all doctrines, policies and practices based on or advocating the superiority of peoples or individuals … including the Doctrines of Discovery and terra nullius, are racist, scientifically false, legally invalid, morally condemnable and socially unjust”.
Canada no longer wants anything to do with Johnson v. McIntosh or the Doctrine, a Canadian Department of Justice spokesman says.
“These … ancient doctrines have no place in modern Canadian law and do not inform our ongoing relationship with First Nations, Inuit and Metis.”
The Departmental spokesman says Canada’s Supreme Court declared in a 2014 decision that terra nullius never applied in Canada.
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