Why the official repudiation of the Doctrine of Discovery is necessary: ​​lawyer

Following Pope Francis’ historic apology acknowledging the Catholic Church’s role in indigenous residential schools in Canada, which the Assembly of First Nations (AFN) has called “a significant gesture,” many advocates are calling on him to also rescind the Doctrine of Discovery.

Banners reading “Rescind the Doctrine” were seen among protesters during the Pope’s visit to Canada, along with voices in the audience urging public denunciation.

the Doctrine of Discoverydating from the late 14th century, it is one of several principles of international law known as jus gentium, or “law of nations”, that applied between European nations in the 14th and 15th centuries.

It was used as a legal and moral justification for European countries to conquer land that did not belong to them and laid the foundation for laws such as the Canadian Indian Act and the residential school system.

Pope Francis did not directly mention the Doctrine of Discovery when he apologized to residential school survivors in Maskwacis, Alta., drawing criticism that he did not fully acknowledge the role the Catholic Church plays in the residential school system.

“(The doctrine) was not only about an authorization to steal the lands and resources, but also to subjugate the so-called ‘barbarian nations,’” ​​Dr. Pamela Palmater, lawyer and chair of indigenous governance at the Metropolitan University of Toronto . , she told CTV’s Your Morning on Tuesday.

“So all the violence and death that happened to indigenous peoples in these territories is also part of that.”

According to Indigenous Corporate Training Incorporated (CTI), a training organization that guides professional relationships between businesses and indigenous peoples in North America, there is one main reason why the Doctrine of Discovery continues to impact First Nations communities. : has never been officially renounced by the head of the catholic church.

“(The doctrine) remains the bedrock of Canadian law and as such continues to impact Indigenous Peoples,” CTI wrote on its website.

Palmater says that the Doctrine of Discovery remains “infused” into Canada’s legal system to the point that it continues to impact the country’s ideologies, concepts and even common law.

“You see, the Supreme Court of Canada always assumes that Canada has sovereignty, even though its indigenous peoples are recognized as having actual sovereignty, and that’s where the reconciliation takes place,” he said.

“I think an official repudiation of it and the concepts that go with it, both by the Church and the government, will help start to unravel those cases over time.”

Last year, the Canadian government rejected the doctrine and passed Bill C-15, which aims to harmonize Canada’s laws with the United Nations Declaration on the Rights of Indigenous Peoples. The government called the doctrine “racist, scientifically false, legally invalid, morally reprehensible, and socially unjust.”

In a January 2018 report on the rollback of the doctrine of discovery, the AFN says it “remains deeply concerned about the contemporary ramifications of the doctrine of discovery and other discriminatory practices.”

Those offshoots include indigenous communities in Canada still struggling with land disputes with the government.

The Tsilhqot’in Nation, which represents six First Nations communities with a common culture and history, is the only indigenous group that gain recognition of your aboriginal title to a specific area of ​​land through the Supreme Court of Canada.

The lawsuit was triggered by the British Columbia government’s decision in 1983 to grant a commercial logging permit on land that the Tsilhqot’in considered part of their traditional territory. The First Nation expressed concern and demanded a logging ban.

According to the historic decision, indigenous nations have the right to use and benefit from the land, but they do not own it. Instead, they have a beneficial share of it.

Although Pope Francis’ decision to overturn the Doctrine of Discovery would have symbolic value on the road to reconciliation, Palmater says he would not rescind its impact on Canadian law without additional work.

“I think an official repudiation of (the doctrine) and the concepts that go with it, both by the church and by the government, will help to start … rejecting those concepts that (they) had any legal claim to these territories,” he said. . he said she.


With files from Mitchell Consky and The Canadian Press

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