The Decibel - Should the Pope reverse a 500-year-old Church law?

Episode Date: December 28, 2022

As part of our picks of the top stories of 2022, we are re-airing this episode on the Pope’s visit to Canada and the Doctrine of Discovery, which originally aired on July 25.Many Indigenous people would like the Pope to publicly renounce the Doctrine of Discovery. Bruce McIvor is one of them. He is a lawyer, a historian and the author of Standoff: Why Reconciliation Fails Indigenous People and How to Fix It. He explains what this doctrine is, how it went from a papal edict to a legal principle in Canada and why renouncing it would be a meaningful action for the Pope to take on his July visit to Canada.Questions? Comments? Ideas? Email us at [e-mail]

This week, we're looking back at the biggest news stories of the year. The Pope's visit to Canada in July was a big moment for the country. Pope Francis visited Alberta, Quebec, and Nunavut, and most importantly, apologized for the role that some Catholics played in running residential schools. We made an episode during the Pope's visit about an ancient Catholic law that plays a major role in colonialism. Many Indigenous people were asking the Pope to rescind the law during his trip to Canada, but he didn't. Dr. Bruce MacIver is on the show. He's a lawyer, an historian, and a member of the Manitoba Métis Federation.

He's also the author of Standoff, Why Reconciliation Fails Indigenous People and How to Fix It. I'm Aina Karaman-Wilms, and this is The Decibel from The Globe and Mail. Bruce, thank you so much for speaking with me today. Thanks for inviting me on. So let's just start off by defining the doctrine of discovery itself. How did this doctrine come about, and what was it actually addressing? Sure. So the doctrine of discovery itself is inspired by and took justification from the papal bulls of the 15th, late 15th century. And what was going on then was European nations and particularly Portugal and Spain were out there so-called discovering new lands. And the Pope interceded to try to develop a rule for how they would carve up the world amongst themselves.

So the papal bulls that are often referred to, that set down the principle that because, and this is the concepts that were used at the time, these were civilized European nations encountering uncivilized indigenous people. This is what they said at the time. So that was the inspiration for the legal principle of the doctrine of discovery that was laid down a few centuries later.

How did this doctrine go from being a decree from a pope in the late 1400s to being such a foundational part of Canadian law? So the doctrine itself, as a legal principle, was developed by the U.S. Supreme Court in the 1820s and 30s. And then in the 1880s, when for the first time the question of aboriginal title was dealt with by Canadian courts, the doctrine emerged at that time. So it was adopted and imported into Canadian law that far back again to just justify the doctrine has been rejected and called out all around the world. Unfortunately, though, the doctrine of discovery continues on in U.S. law and in Canadian law. So how far reaching is this doctrine now in terms of its impact on Indigenous people in Canada or in the

US and the Americas more broadly here? Well, in Canada, particularly, I think most Canadians don't realize they engage with the doctrine on a daily basis. So when they buy and sell property, where did the interest in that property come from? They acquired that. It was a grant certificate of indefeasible title issued by the provincial government. Well, what gave the provincial government the legal basis to do that. All this dates back to that assertion of ownership. Hmm. What about for Indigenous communities, Indigenous people in particular in Canada? How does this shape their day-to-day? It's probably one of the fundamental insults that indigenous people all across the country have to deal with on a daily basis.

Because the doctrine speaks to their inadequacies from a European perspective. The doctrine says you weren't civilized, your ancestors weren't civilized when Europeans arrived. And so now those colonizing nations have acquired the land and the land that your ancestors have said is always said is your land. The government says it's their land. In 2014, there was a case at the Supreme Court of Canada, though, that formally repudiated this doctrine. Can you tell me about that? So that's the 2014 Chilcotin decision from BC. And it's a really important case because for the first time, the Supreme Court of Canada confirmed the existence of aboriginal title. One of the interesting things

that took place during the hearing was that the court heard numerous arguments to revoke the doctrine of discovery. And the court says in its decision, well, it's never actually been part of the law in Canada. And I think there's very few legal scholars and lawyers in Canada that would agree with that statement. It does lie at the basis of Canadian law. We don't call it in Canada the doctrine of discovery because as Canadians, we need to find a safe-sounding euphemism that would cover it up. So here in Canada, we call it the assertion of crown sovereignty. But that's a distinction without a difference.

But I guess, doesn't the fact that it's been mentioned in previous rulings, doesn't that make it precedent and part of Canada's common law in a way then? It's part of the common law. And really importantly, it's at the core of what the court is talking about, what it refers to reconciliation. If you look at that, the court has said it's reconciliation means you need to reconcile the pre-existing rights of indigenous people in their lands with the assertion of crown sovereignty over those lands. So basically, it's from my perspective, this is why reconciliation in Canada continues to fail, because you're trying to reconcile a right, which is that pre-existing right of Indigenous people, with a lie. And the lie is that colonizing nations can just show up, plant a flag, and acquire an interest in that land.

I want to ask you about Pope Francis and his visit to Canada. Why do people want him to publicly renounce this doctrine of discovery? Yeah, I think it's important because it would put a lot of moral and political pressure on governments in Canada. I think revoking the papal bulls, denouncing the doctrine of discovery would be an important step on a different reality in Canada that would seriously consider and make space for Indigenous rights over their lands. So you mentioned there how a public renouncing from Pope Francis would kind of put some political pressure there. Can you, I guess, finish this thought? So from the political pressure then, how would that change eventually the legal status of this doctrine in Canadian common law?

When the courts have seriously grappled with this, where they've landed is that they can't really question the doctrine. Because if they question the doctrine, they would question their own authority. and so the courts from my perspective at least have basically said there may be a problem a problem but we can't look there that's not for us to resolve so what would be important then is it turns over to parliament to the federal government and with the Pope possibly revoking the papal bulls, denouncing the doctrine, this would create the courts cover that, I think, to seriously engage on this question. Now, the Conference of Catholic Bishops in Canada published what they called a quote, Catholic response, where they repudiated the ideas underlying this doctrine. That was back in 2016. Why isn't that enough? Why does it have to come straight from the Pope in order to make a difference here? I think a lot of it is the Pope is seen as the leader of the Catholic Church, of course. And people want the Pope as the leader to step up and do it himself at a personal level on behalf of the entire church.

I'm wondering about treaties here. What impact might this all have on treaties between First Nations and the federal government? Indigenous people don't accept them as being treaties that surrendered up their rights to the land. And when courts have begun in certain situations to look at different treaties in detail, they often come to the same conclusion. These weren't treaties of surrender. So if you can set aside that misconception of the historical treaties, then you're back to the same place. You're back to indigenous people saying, we owned the land before Europeans arrived.

We had laws over the land before Europeans arrived. The treaties didn't change that. What does all this mean for the sovereignty of Canada and the authority of the federal government? Because we have these systems in place now. So I guess, like, are the goals of dismantling this doctrine, are they feasible for the way that this world is set up now? I think they're completely feasible. This idea that the sky would fall if the doctrine was renounced, I don't think that's acceptable.

Justice needs to be done and accepted and then find a negotiated way forward. I think the alternative is the impasse that we're currently at and trying to move forward on a rotten foundation will not build a strong country. I think Canada is in a particularly good place to have that negotiated resolution because we are a federation. We are used to sharing jurisdictions. There's no reason at all that you can't apply the same principles to recognizing indigenous rights over the land and indigenous laws. So you're talking about they're negotiating jurisdictions. We're not really talking about evicting people out of their houses or off lands, though.

Is that correct? I don't see that. I don't see that. I don't see that happening. I have clients across the country that have filed aboriginal title claims to so-called private lands. So in that context, they don't seek to evict anyone off the land. They're not taking anyone's farm. That's not what they're up to. But what they want to do is people to acknowledge that it's their land. And I think that's what most Indigenous people are looking for. And very importantly, they're looking for exercising their own decision-making.

Because of the doctrine, the way it works to a large extent, Canada, is that all the decision making authority is either in the provincial or federal government. So if it's a forestry plan, if it's a pipeline, if it's a mine, a decision has to be made whether it goes forward. Who makes the decision it's either the federal or provincial government or both of them i think if we got past and revoked the doctrine and we got to a place where people were acknowledging wait a minute indigenous people get to make a decision about that land that would be a much better place for all of Canada. We touched on reconciliation a little bit before, but I want to come back to this with a little bit

more depth. I'd like to place this conversation we're having about the doctrine of discovery into the bigger conversation of reconciliation in Canada. This doctrine is actually mentioned in the TRC's 94 Calls to Action, the Truth and Reconciliation Commission's Calls to Action, numbers 45, 46, 47, 49. And you've written a whole book on reconciliation in Canada. So I know you're very familiar with this. But why is dismantling this doctrine seen as an important step in Canada's reconciliation with Indigenous people. I think largely because the way forward now, based on the current policies and structures and legal principles, simply do not work. They don't work because they put Indigenous people on their back foot all the time. They have the onus to defend themselves.

They have the onus to prove that it's their land, that they had laws. Canadian governments constantly get to sit back and they can roll the dice. That's because of the assumption that somehow Canadian governments acquired a superior right. renounce the doctrine and get to a place where indigenous people were respected were recognized for their interest in the land were recognized for their own laws and then start there and have a conversation with well what do we do now going forward instead of constantly putting Indigenous people, their laws, culture, history on trial. Bruce, thank you so much for taking the time to help us understand this. Thank you. That's it for today. I'm Maina Karaman-Wolmes. Our summer producer is Zahra Kozema. Our producers are Madeline White,

Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show. Kasia Mihailovic is our senior producer, and Angela Pachenza is our executive editor. Thanks so much for listening, and I'll talk to you tomorrow.