The Doctrine of Discovery: A 500-year-old colonial idea that still affects Canada’s treatment of Indigenous peoples

Why is it important?

The Doctrine of Discovery is still an important legal concept in Canada today even though it was written hundreds of years ago. Both French and English colonial powers in what would later be known as Canada used the Doctrine of Discovery to claim Indigenous lands and force their cultural and religious beliefs on Indigenous peoples. Once Canada was created, the Doctrine of Discovery influenced the imposition of national, colonial laws on Indigenous peoples. This is because it denies the validity of longstanding systems of Indigenous governance and sovereignty.

The Doctrine of Discovery and human rights

In the Canadian context, the Doctrine of Discovery has led to the seizure of Indigenous lands and the displacement of Indigenous peoples. As colonial settlement spread over the territory that became Canada, many Indigenous peoples entered treaty relationships defining how they would share the land with the newcomers. Influenced by the absolute claims to power and authority expressed by the Doctrine, Canadian law interpreted these agreements as surrendering title and control, despite these concepts being largely alien to Indigenous cultures.

The Canadian government has also claimed title and control over unceded Indigenous lands. This was demonstrated in the 2014 Supreme Court of Canada ruling in Tsilhqot'in Nation v. British Columbia.^3^ The ruling found that the Tsilhqot'in had indeed demonstrated their Aboriginal title to their land. This meant that they had "an exclusive right to use or occupy the land for the nation's collective benefit."^4^

However, the ruling also said that Aboriginal title could be defied by the Crown (either the provincial or federal governments) if it could justify such action.

The racist assumption of superiority and dominance embodied in the Doctrine of Discovery underpins many aspects of Canada's colonial history, including the Indian Act, the reserve system, the Indian residential school tragedy, and the Sixties Scoop.