How Canadian law could change with the Vatican repudiation the Doctrine of Discovery
By Paul Hantiuk · CBC Radio · Apr 08, 2023
Tamara Baldhead Pearl is cautiously optimistic the Vatican’s repudiation of The Doctrine of Discovery can lead to change in what she refers to as “white supremacy in Canadian case law.”
“The greater the consensus that the Doctrine of Discovery is fundamentally racist and immoral, the harder it is for Canadian courts to continue to decide cases based on this fundamental doctrine,” said Pearl, who is from One Arrow First Nation, in an interview with Day 6.
Pearl, who’s also an assistant law professor at the University of Alberta, says she hopes there will be increased pressure to “try to rethink how Canadian law can be brought into conformity with the contemporary understanding of Indigenous rights and equality among peoples.”
The Doctrine of Discovery is a set of colonial-era theories, backed by 15th-century papal bulls, which was used to legitimize the seizure of Indigenous lands by colonial powers. Legal decisions in both the U.S. and Canada invoked the doctrine in some form.
The Vatican says in its statement the doctrine was not a Catholic teaching and had been manipulated for political purposes by colonial powers.
“The Church’s magisterium upholds the respect due to every human being,” the statement reaffirmed.
There have been calls to repudiate the doctrine for decades, but they gained more visibility in Canada during Pope Francis’ visit last summer. Two women held a banner reading “Rescind the Doctrine” at the altar of the National Shrine of Sainte-Anne-de-Beaupré on July 29, 2022. They were escorted from the basilica without incident, but draped the banner outside as part of a protest.
During the visit, Pope Francis apologized to Indigenous people for the residential school system that forcibly removed Indigenous children from their homes. However, he was criticized by some for not taking the opportunity to repudiate the doctrine.
Pearl spoke with Day 6 guest host Manjula Selvarajah about her reaction to the Vatican’s statement and the impact it could have on Canadian law.
What was your reaction last week to this news from the Vatican?
My reaction last week was [to keep] in mind who fought for that statement from the Vatican for a very long time. For decades, and that was the residential school survivors.
So, although the statements and the apology around it was not perfect, I do know that it … meant a lot to a lot of Indigenous folks throughout the country.
The doctrine and its sentiments are far from just symbolic. Can you tell us about the ways that it’s still alive in Canadian law?
There were earlier Supreme Court of Canada, and especially U.S. Supreme Court, decisions that adopted this Doctrine of Discovery. Specifically, the case law goes back to a series of U.S. Supreme Court cases popularly called the Marshall Trilogy … particularly the 1823 case. Johnson v. M’Intosh described the Doctrine of Discovery.
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[The repudiation by the Vatican] may not significantly change things in [Canadian] law, but it will have a significant impact on those who make changes in the law, so that we distance ourselves from the Doctrine of Discovery and use the treaties [and] the nation-to-nation relationship that we had, as confirmed by the Royal Proclamation of 1763, as the foundation of our relationship here in Canada.
Give us an example of a past case, a Canadian case that was impacted by the doctrine.
I would say pretty much almost all … Section 35 [of the Constitution Act] aboriginal rights cases and jurisprudence [are] affected by the touch of discovery. The insidiousness of [the entrenchment of Doctrine of Discovery is] white supremacy itself is entrenched in our case law… This assumption that Canadian state law, which is common law, civil law, is the only sole legitimate source of law in Canada, where it isn’t… We have multiple legal orders, actually, because Confederation was founded by multiple peoples, not just this myth of a bijuridical founding of just the French and English, but [also] multiple Indigenous peoples that contributed to Confederation.
Is there a way to begin to undo that influence of the doctrine in Canadian case law?
Definitely there has been attempts for quite a long time … for example, national inquiries that have happened. So, for example, the Royal Commission on Aboriginal Peoples, that was very detailed. We’re still looking at it as quite influential today. That came out in the 90s.
And of course … look at the Truth and Reconciliation Commission as well as being one of the most, if not the most normative changing inquiries to date.
I think what this Vatican statement does is that it helps to de-legitimize the assumptions on which Crown sovereignty and underlying title are based.
Is there something tangible we can do as individuals to be part of this momentum that has been created by the Vatican?
So, the shorter answer is clearly to look at ourselves as individuals and where we’re placed in society and how we benefit from how society is, but also not in the sense of shame, but also in the sense of awareness.
And for me, the easiest way to do that is to read what is publicly available, which is obviously the Truth and Reconciliation [Commission’s] final report and the National Inquiry into Missing and Murdered Indigenous Women and Girls final report.
All of it is public. All of it is free. The University of Alberta’s Faculty of Native Studies … has a wonderful free course that you can register for to learn about quite a bit, actually, at the diversity and the need to look at Canada as a nation of shared nations.
I also believe that by learning, but also asking questions and getting to know each other — it’s hard to hate someone once you get to know them.
Support is available for anyone affected by their experience at residential schools or by the latest reports.
A national Indian Residential School Crisis Line has been set up to provide support for survivors and those affected. People can access emotional and crisis referral services by calling the 24-hour national crisis line: 1-866-925-4419.
Mental health counselling and crisis support is also available 24 hours a day, seven days a week through the Hope for Wellness hotline at 1-855-242-3310 or by online chat at www.hopeforwellness.ca.
Radio segment produced by Yamri Taddese. Q&A edited for length and clarity. With files from The Associated Press.
ABOUT THE AUTHOR
Paul Hantiuk , Journalist
Paul Hantiuk is a producer with CBC News in Toronto.