| Now What? Next Steps for Uprooting the Doctrine of Discovery By Kate Gunn and Bruce McIvor The Catholic Church’s recent announcement repudiating the Doctrine of Discoveryhas been met by Indigenous groups as both a welcome and long-overdue development. The focus now shifts to whether – and how – Canada will use the announcement as an opportunity to create meaningful change in its relationship with Indigenous Peoples. Now what? The following suggestions for next steps will hopefully contribute to the national discussion of where we go from here. For further background and commentary see Bruce McIvor’s previous posts on this topic. #1 Convene a national gathering on the Doctrine of Discovery The Vatican’s inadequate repudiation underscores the need for real truth telling. A National Gathering should be convened to provide a forum for telling the truth about how the Doctrine of Discovery is the basis for present-day Canadian property rights and law-making authority. As part of the gathering, an Action Plan should be developed identifying concrete steps to be taken to uproot the ongoing pernicious effects of the Doctrine. |
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| #2 Enact legislation formally repudiating the Doctrine of Discovery For decades, Canadian courts and governments have relied on the Doctrine of Discovery and its modern-day pseudonym, the ‘assertion of Crown sovereignty,’ to justify the Crown’s historic and ongoing assertion of control over Indigenous Peoples and their lands. As a result, the Doctrine has become inextricably connected with modern-day Aboriginal rights jurisprudence. In 2021, the federal government introduced the United Nations Declaration on the Rights of Indigenous Peoples Act. While the preamble includes language denouncing the Doctrine as morally and socially unjust, the remainder of the Act is silent on the Doctrine and its application in Canadian law. In the wake of the Church’s announcement, Canada should enact legislation which expressly repudiates the Doctrine, and unequivocally confirms that it is no longer open to government representatives to adopt policies or positions which are rooted in the denial of Indigenous rights. |
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| #3 Revise the UNDRIP Action Plan The 2021 UNDRIP Act requires the federal government to work in collaboration with Indigenous governments to co-develop an action plan to achieve the objectives of the Declaration. The draft action plan, released in March 2023, makes no mention of the Doctrine of Discovery or what steps Canada will take to resolve the outstanding question of how it came to acquire sovereignty over Indigenous Peoples. Canada should commit, as part of the final action plan, to working with Indigenous Peoples to develop concrete measures to address the ongoing influence of the Doctrine in Canadian law. As part of this process, Canada should commit to reviewing and amending or rescinding federal legislation and policies which continue to implicitly rely on the Doctrine. |
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| #4 Update the federal Directive on Civil Litigation Involving Indigenous Peoples In 2019, the Honourable Jody Wilson-Raybould, former Minister of Justice and Attorney General of Canada made headlines through the introduction of the federal Directive on Civil Litigation Involving Indigenous Peoples. The Directive is intended to guide Canada’s legal approaches and positions in the context of civil litigation involving Indigenous Peoples’ Aboriginal and Treaty rights. It requires, among other things, that lawyers representing the federal government approach litigation based on the recognition of Indigenous Peoples’ Aboriginal and Treaty rights, and avoid taking positions which directly or indirectly undermine those rights. In light of the Church’s announcement, Canada should update the Directive to reflect that government lawyers must not advance arguments in court which are fundamentally rooted in the Doctrine of Discovery or the denial of Indigenous rights. As a corollary, Canada should direct its negotiators to avoid positions which have the effect of perpetuating the Doctrine as the basis for the justification of Crown sovereignty when resolving disputes with Indigenous Peoples. |
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| #5 Recognize Indigenous laws The lands which encompass what is Canada have always been subject to Indigenous Peoples’ laws and governance structures. Today, Canadian courts recognize that the assertion of Crown sovereignty did not extinguish Indigenous Peoples’ law-making authority, and that Indigenous Peoples’ right to self-government is protected by section 35 of the Constitution Act, 1982. At the same time, however, the Crown continues to take positions which serve to deny and supress the existence and authority of Indigenous laws. To move beyond the Doctrine of Discovery, the federal government should formally recognize the multiple systems of law which continue to exist in Canada, and commit to working with Indigenous Peoples to ensure those laws are recognized along with federal and provincial law-making authority. |
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| #6 Commit to a policy of restitution and redress For years Indigenous leaders and legal scholars have argued that Canada as a country is based on a legal fiction. The Church’s announcement confirms this reality. It furthers underscores the fact that governments, including Canada, have used the Doctrine for centuries to further the objective of colonization. If Canada is serious about reconciliation, it cannot simply adopt forward-looking policies which fail to account for the grave harms suffered by Indigenous Peoples as a direct consequence of the Doctrine and related legal concepts. Instead, the federal government should formally and publicly commit to policies of restitution and redress for the wrongs done to Indigenous Peoples in service of the colonial project which is Canada. |
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| #7 Take local action now One of the problems with the Vatican’s statement was that there was no commitment to taking action. Instead of relying on the Catholic Church in Rome to provide direction, local congregations across the country should take direct action themselves. They can start by committing to policies that will ensure that the Indigenous Peoples’ whose land they occupy benefit from the land and are involved in decision-making about how the lands are used. They can also take the next step by becoming involved in the land back movement. Time will tell whether last week’s announcement by the Church is merely a symbolic victory, or if it will lead to real change in Canadian laws and policies. |
| First Peoples Law LLP is a law firm dedicated to defending and advancing the rights of Indigenous Peoples. We work exclusively with Indigenous Peoples to defend their inherent and constitutionally protected title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their current and future generations. Chat with us Kate Gunn is partner at First Peoples Law LLP. Kate completed her Master’s of Law at the University of British Columbia. Her most recent academic essay, “Agreeing to Share: Treaty 3, History & the Courts,” was published in the UBC Law Review. Contact Kate Connect with Kate on LinkedIn and Twitter Bruce McIvor, lawyer and historian, is partner at First Peoples Law LLP. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada. Bruce’s ancestors took Métis scrip at Red River in Manitoba. He holds a law degree, a Ph.D. in Aboriginal and environmental history, is a Fulbright Scholar and author of Standoff: Why Reconciliation Fails Indigenous People and How to Fix It. He is a member of the Manitoba Métis Federation. Contact Bruce Follow Bruce on LinkedIn and Twitter For more First Peoples Law analysis, visit our blog Sign up for our First Peoples Law Report Read this post on our website |