Challenging the Master’s
Narrative
The Doctrine of Discovery
and Her Majesty the Queen in Right of Canada
United Nations
Preliminary study of the impact on Indigenous Peoples of the international legal construct known as the Doctrine of Discovery
United Nations E/C.19/2010/13
“This preliminary study
establishes that the Doctrine of Discovery has been institutionalized in law
and policy, on national and international levels, and lies at the root of the
violations of indigenous peoples’ human rights, both individual and collective.
This has resulted in State claims to and the mass appropriation of the lands,
territories and resources of indigenous peoples. Both the Doctrine of Discovery
and a holistic structure that we term the Framework of Dominance have resulted
in centuries of virtually unlimited resource extraction from the traditional
territories of indigenous peoples. This, in turn, has resulted in the
dispossession and impoverishment of indigenous peoples, and the host of
problems that they face today on a daily basis.”
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| Star Man Jumps Down for A Moment's Notice to Flame Out the Bull Smoke |
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Canada as a sovereign nation, via the Crown, claims ownership and sovereignty over all the land within its boundaries. But how does one gain ownership and sovereignty over particular piece of land? One can gain sovereignty through aboriginal rights which basically means that one is the original occupier of a particular piece land. One can gain sovereignty through conquest. One can gain some land rights through adverse possession. One can gain title through conveyance. Lastly and uniquely to the Americas, and claimed to be just by Europeans, one can gain title through discovery.
If we look at Canada, and ask again, “How did she gain title to the lands within its boundaries? “ It certainly cannot claim title via aboriginal rights. Only Native people can claim aboriginal rights. It cannot claim sovereignty through conquest. Who did it conquer? Sure, one or two small tribes may have been conquered, but certainly not most Indian tribes. On the contrary, she chose to enter into peace and friendship treaties with most tribes. If one tribe was actually conquered, it certainly does not mean that all Indians were conquered. Conquest has geographic limitations in the same way that the Royal Proclamation has geographic limitations.
In the Nishga case, the court in a roundabout way, suggests that the Crown gained title to lands in British Colombia via adverse possession, i.e. adverse acts on the part of the crown. But the theory of adverse possession could not apply to Native peoples because the land was not individually owned. Secondly, adverse possession does not apply to a sovereign because an underlying assumption of the theory of adverse possession is that the adverse possession must have his title recognized by a higher entity. In the case of the sovereign, there is no higher entity.
If the Crown can claim any type of interest, it can legitimize this claim through conveyance and only through conveyance. But as the writer has already shown, the Indians surrendered if they surrendered anything at all, is a lot smaller to what the government lays claim to. It certainly is not a fee simple.
The only other means by which Canada can justify its claim to Indian lands is through discovery. But then the writer has shown how discovery has been misinterpreted and misconstrued.
When the courts and the government say the Indian’s title is dependent on the goodwill of the sovereign, and that the Indian’s interest is a mere burden on the underlying title of the crown, the question to ask is: “What did the Crown get its title from? And how?”
When the courts refer to Indian title, they should say something to the effect of, “the title or interest of the Crown is a mere personal and usufructuary interest dependent on the goodwill of the Indians.” The Indians have all along had a paramount estate underlying the Crown’s interest. The Crown’s interest is a mere burden on the title of the Indians.
As a conclusion to this short paper, the writer would like to state that his hope that he has in some small way contributed to a better understanding of the Indians property concepts, which in turn, hopefully, will facilitate a better understanding by those who are not familiar with Indian thinking. The writer hopes that, in some small way, by this paper, he has contributed toward educating non-Indians about why and the basis for the land claims the Indians are making.
If justice and fairness are underlying goals of today’s government and court system, then the concepts and the philosophy of Indian people should certainly be taken into consideration and given as much weight as British concepts and philosophy. But if justice and fairness are not underlying goals, then we should stop covering ourselves with a false aura of sacredness and bring out things in the open, so everybody knows where they stand. In other words, if we cannot be bothered with justice and fairness, we should, at least, be truthful.
Whether it is Canada’s claim of succession to territorial jurisdiction via the Doctrine of Discovery (1492) and the Papal Bulls Inter Caetera (1493) under the terms of the Royal Proclamation of 1763, or the US claim under the SCOTUS Johnson v. M’Intosh decision of 1823, or the claim by the Republic of Mexico under the Constitution of 1917 to “original property of the state”: All three federal superstructures of both common law and civil law lineage and precedent share in illegal collusion and complicity the normalization of the racist tenets of the Doctrine of Discovery of Christendom.
In spite of UN General Assembly resolution 1514 (1960) which proclaimed colonization as an illegal violation of International Law, this colonial geopolitical infrastructure of the states of North America under which the original NAFTA was implemented continues as norm, policy and law even now under the mechanisms of “modernization” per USMCA 2018. It is a legaloid system.
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